Trans People and the Church of England: Disadvantage and Microaggressions

In this article, I discuss the situation of trans people within the Church of England. I outline instances of legal and institutional discrimination in the following situations: the Equality Act 2010 in the context of employment, promotion and training; trans candidates for ordination; and marriage involving (a) trans person(s). I discuss some theology relating to this discrimination. I explain the impact of disadvantage and discrimination for minority groups with reference to minority stress, and clarify the microaggressive messages contained in differential institutional treatment for trans people. I suggest that the harm done by Church discrimination against trans people is real and significant, and ought to be recognized and addressed.

Since the coming into force of the Gender Recognition Act 2004, it has been possible for a person assigned female but identifying as male, or assigned male but identifying as female, to change their legal sex and birth certificate. Some trans people obtain the Gender Recognition Certificate (GRC) necessary for change of legal sex; other trans people identify, live, and present themselves as their preferred gender without doing so. This is relatively easy to do: names, and gender markers on passports and driving licences can be changed without a GRC. It is not necessary to have any physical or medical treatment in order to obtain a GRC; social transition and the intention to live permanently in the 'opposite' ('acquired') gender than that assigned at birth, is required. Moreover, the GRC has become practically less important since the possibility of same-sex marriage: for example, before the Marriage (Same Sex Couples) Act 2013, a trans man without a GRC was unable to marry his female partner, as he was still legally female. Now they may marry. The 2013 Act also resolves the problem that used to face trans people who were married before one party transitioned: a GRC may now be acquired without divorce, as the marriage of same sex couples is lawful.
Other trans people reject the binary model of male-female, man-woman, or reject gender in some way (perhaps by regarding themselves as not having a gender identity at all). Nonbinary people are the least recognized in our society and the Church, and find themselves most often at variance with society's expectations and prescriptions. 1 But this experience of repeated divergence, difference and conflict is present in every trans person's encounter with the rules of broader society and the Church of England. In this article, I aim to clarify some of the difficulties in being trans in an environment that privileges cis gender, and explain the ways in which the Church of England as an institution contributes to and perpetuates this damage and harm. This clarification draws on the research available on trans people and religious environments; accounts of trans people published in hard copy and on the internet; and my own experience as a person transitioning whilst a member of the Church of England. this disadvantage, and the impact of this on trans people's health. I then describe the concept of microaggressions developed by Derald Wing Sue and his colleagues, 2 and reconsider the Church environment with this in mind. Finally, I conclude with a plea that all members of the Church take this discriminatory environment seriously and consider its cost. Much of what I write here can be applied to LGB people also; my focus here is simply on clarifying trans issues.

Trans issues, the Institutional Church, and the law
A popular view understands law to be about statutes and cases, judges and other legal officials. This is known as a formal conception of law. In contrast, many legal theorists, myself included, see law as a functional 3 'enterprise of subjecting human conduct to the governance of rules'. 4 On this view, whether a rule-maker is a state legislature or General Synod, and whether formal rules are called 'statutes, ' 'measures,' 'Handbook,' or 'official teaching' is unimportant; what matters is whether they fulfil a relevantly similar function. For this reason, though I discuss institutional regulation and state regulation separately as needed, I do not regard them as being significantly conceptually different as forms of law-making. 5

Overtly less favourable treatment of trans people
The following instances are examples of permitted discrimination within the legal and institutional framework of the Church, where it is lawful to treat a trans person less favourably than a cis person.

Employment, promotion, and training
The Equality Act 2010 provides safeguards for people with 'protected characteristics', including gender reassignment -a category that includes trans men and trans women, or people with a trans history, though it may exclude nonbinary people -from discrimination, victimization and harassment. Notwithstanding this, there are exceptions in Schedule 9 of the Act 'for the purposes of an organised religion' in relation to employment, promotion and training. These exceptions make it possible to require someone not to be a transsexual person (Schedule 9 paragraph 2(4)(b)), where being transsexual is contrary to the doctrines of a religion (Schedule 9 paragraph 2(5)), or so as to avoid conflict with the 'strongly held religious convictions of a significant number of the religion's followers' (Schedule 9 paragraph 2(6)). 6 Either the person to whom the Church applies this principle must be transsexual, or the Church may have reasonable grounds for believing that that person is transsexual.
This means that the Church may, but is not obliged to, treat a transsexual person less favourably than a cis person, in relation to employment, training and promotion.
The general legal question of whether a clergyperson is an employee of the Church of England is complicated and context-specific -see Sharpe v The Bishop of Worcester. 7 For the purposes of the Equality Act, however, ministers of religion are employees to whom Schedule 9 paragraph 2 applies. 8 Persons employed by the Church for purposes other than that of an organized religion, such as an accountant, are protected by the ordinary non-discrimination provisions of the main body of the Equality Act.

Ordination
Trans candidates for ordination will be aware of the differential provision in the …any Bishop intending to sponsor a transgendered person for a Bishops' Advisory Panel will certify that he has decided that he would be prepared to ordain and offer a Title to that person if during the course of training and formation she/he were deemed to have a vocation to ordained ministry. Bishops' Advisers […] at which such a candidate was due to be considered would be given the opportunity of declaring in advance whether or not they could conscientiously recommend for training a transgender candidate. In such cases, either they or the candidate would be moved to another Panel. 9 This provision, regarded as positive by Christina Beardsley, 10 expressly allows the sponsorship and ordination of a trans candidate (though she notes the less certain position of clergy who wish to transition in post). I differ from Beardsley in seeing the discretion involved as problematic. A bishop may, but need not, sponsor a trans person -and if they do, they need to be prepared to ordain and offer a Title to that person. This provision does not apply to cis candidates. Nor could Bishops' Advisers declare that they could not conscientiously recommend a cis candidate qua cis candidate -but they may do so for trans candidates. There must, therefore, be something problematic about being a trans rather than a cis person. Rachel Mann was told, in her first bid for selection for priesthood, that 'the church was not quite ready for me '. 11 It is impossible to know how many trans people might have put themselves forward for selection for ordination, were it not for the Church's differential treatment of trans people. It is impossible to know how many trans people might attend church, but for the Church's differential treatment of trans people. What Rachel Mann, writing of a specific church and sermon, describes as the 'absence of those this church considered unacceptable' 12 could be more broadly applied to the Church as a whole.

Marriage
The Marriage Act 1949 s 5B (as amended by the Gender Recognition Act 2004) provides that: '(1) A clergyman is not obliged to solemnise the marriage of a person if the clergyman reasonably believes that the person's gender has become the acquired gender under the Gender 9 Church of England, "Diocesan Directors of Ordination Handbook Section 2 -Before the Bishops'

Omission
In addition to the above instances of overt exclusion and disadvantageously differential treatment, trans people are also treated less favourably by omission. Elizabeth Stuart writes that 'depriving people of language with which to make sense of their experience is a particularly effective way of keeping them silent and disempowered'. 21 This disadvantage by omission is present for trans people in at least two aspects. The first is the exclusion of trans people from the Church's understanding of the world, which is binary-focussed and privileges rigid categories of (cis) gender and (hetero) sexuality.
The second, following on from this primary invisibility, is a lack of rituals and services to  narrative is a one-dimensional description of trans identities). But before considering the theology underpinning this stance, some further attention to its phrasing in the Church's submission is helpful. This focus on wholeness, and authenticity, is a recurring theme in trans theology (supported by psychological research into the positive aspects of a trans identity 45 ). As Justin Edward Tanis writes about those who have not yet acknowledged their identity openly, or those who seek to hide it: The attempt to live two lives, one known only to us and one that is seen and affirmed by the outside world, is dangerous and even deadly. The Spirit comes to lead us away from that danger and back to the search for authenticity. I believe that the pull of this identity is a sacred process, calling us to be more and more fully ourselves, as we were created to be. The quest is to discover who we were created to be and how we see ourselves in the world. 46 It is surely this becoming, this authenticity, that the Blackburn Motion seeks to honour. Is there something about liberal theology that makes it more ready than conservative Christianities to engage with the reality of gender variant people, or the science, empirical evidence and theory that appear to confirm it? This is an important question, to which I can only sketch an answer here. First, it seems to me that liberal theology's commitment to engage with the excluded (whether socio-economically, sexually, or in terms of gender identity) is significant: it aims to take these voices seriously. Liberal theory also engages with the body, and being embodied. 51 But perhaps the most striking characteristic for me is a more pervasive intellectual honesty: I find liberal theologians more likely to arrive at conclusions following a process of inquiry and reasoning, rather than 'justifying' a position that is already held.

Being disadvantaged
What is the impact of being on the receiving end of discrimination? It is widely accepted among psychological professionals that minority stress (or marginalization stress) is the likely explanation for the higher prevalence of mental disorder among marginalized groups. 52 Marginalization stress is the consequence of living with stressful stigma, prejudice and discrimination, rather than any underlying psychopathology of the group. 53 Events or conditions that exceed the coping capacity of an individual may induce mental or somatic illness. 54 Examples of stressors include dissonances with the majority culture, social structures, and norms, as well as straightforward prejudice. 55 Meyer summarises the concept as follows: minority stress is (a) unique-that is, minority stress is additive to general stressors that are experienced by all people, and therefore, stigmatized people are required an adaptation effort above that required of similar others who are not stigmatized; (b) chronic-that is, minority stress is related to relatively stable underlying social and negatively on all trans people interacting with that system or environment, for example the fear of violence when using public toilets, the profiling of or mistreatment of trans people by the criminal justice system, denial of adequate medical care (or the assumption that any medical problem must be transition-related) and barriers to official recognition of identity, such as changing the gender marker on one's passport. 70 A consideration of the Church environment discussed above -without considering microaggressions perpetrated by individuals within the Church -yields the following: Themes ( prejudice. Regarding marriage: someone's being (or reasonably believed to be) trans removes the obligation to marry, so this is not prejudice on the part of the Church or legal system. Rather obviously, theme (l), systemic and environmental microaggressions, is satisfied in all three cases, because the threat of microaggressions is pervasive in the Church environment and the legal framework that supports this. Theme (j), the denial of bodily privacy, seems present in the statutory instrument that allows a person to disclose information about the previous legal sex of a person with a GRC in relation to marriage and membership of a religious organization. 73

The significance of differential treatment
My argument is that the differential treatment of trans and cis people by the institutional Church (and sanctioned by the legal system) is harmful, and this harm ought to be recognized and addressed. The damage is not due to difference per se, but to the disadvantageous nature of the differences, and crucially, the microaggressive messages implicit in the trans-specific provisions.
These messages point to trans people being different, disapproved of, and wrong.
The discretionary nature of these provisions is not an advantage. Discretion enables some trans people to succeed in their vocation or marriage, but it does not guarantee it. It makes the fate of a trans person within the Church uncertain. In the case of trans clergy, a lack of past discrimination does not guarantee the future. Discretion also foregrounds the microaggressive messages of 'different' and 'wrong': a trans person must inhabit and work in a world in which their exclusion and diminishment is legally and institutionally acceptable and accepted, even if not consistently applied, and in some cases contradicted. 74 This, I suggest, is the real evil of trans people's situations in the Church: the accommodation of 'conscience' provisions and the presence of the view in the Church's submission on the Gender Recognition Bill that gender reassignment is really a fiction, gives institutional legitimacy to prejudice. What the Church does not yet seem to have realized is that the inclusion of such voices, whilst soothing the conservatives, is not a neutral act. This inclusion does harm to trans people and to others who are marginalized on similar grounds. This accommodation sends the message that prejudice is acceptable, and that the conservatives' comfort is more important than a trans person's identity -and through the operation of marginalization stress, more important than a trans person's physical and mental health.

Conclusion
In this article, I have discussed the situation of trans people within the Church of England, outlining instances of legal and institutional discrimination, in relation to the Equality Act 2010 and employment, promotion and training, trans candidates for ordination, and marriage, with some development of the theological positions underpinning these. I have explained the impact of disadvantage and discrimination for minority groups with reference to Meyer's concept of minority or marginalization stress, and clarified the microaggressive messages contained in differential institutional treatment for trans people. I suggest that the harm done by Church discrimination against trans people is real and significant. Yet to date, the Church has preferred to accommodate conservatives voicing particular theological viewpoints among others, rather than face the truth of the hurt it inflicts on trans people. My plea is that the institutional Church recognizes that this accommodation of prejudice is unacceptable, and starts to cherish its marginalised clergy and congregants.
Rob Clucas lectures in Se(xuality), Gender and the Law at the University of Hull, and is Lecturer-in-Law in the School of Law and Politics.