Sunday, 3 November 2013

Sex, Love & Consent; Gender Recognition in the Marriage (Same Sex Couples) Act 2013

Sex, Love &; Consent; Gender Recognition in the Marriage (Same Sex Couples) Act 2013

© Stephen Whittle
Prof, Stephen Whittle, OBE, BA, LLB, MA, PhD, LLD(hc)

Schedule 5 of the the Marriage (Same Sex Couples) Act 2013 requires trans people  who wish to obtain legal recognition in their new gender whilst retaining a marriage, to consult with their spouse and obtain their signature on their gender recognition application.

Some have  interpreted this as a spousal right of veto over their human right to live as a member of their preferred gender.

They are wrong. This is not a veto,. Rather it is a mechanism to protect non-trans spouses from those who do not wish to face reality.

Promises, Promises: Marriage

Prior to the Marriage (Same Sex Couples) Act coming into force, whatever promises you might have chosen to make upon marrying; only two were compulsory. Forget all the “honour and obey”, forget “until death do is part’, we were only ever called upon to make two firm promises.
The first promise comes as the nervous couple stand before the celebrant. They are told that “Marriage according to the law of this country is the union of one man with one woman, voluntarily entered into for life, to the exclusions of all others“. They and the audience are then asked whether they know of any legal reason why these two people should not be joined in marriage. The possibilities are that the marriage is not voluntary, it is not exclusive, or that it is not going to be between a man and a woman. The only time most of us have seen the audience respond is in Charlotte Bronte’s novel ‘Jane Eyre’, where at the church someone leaps up at this point in the service and we learn that Jane’s husband to be; Edward Rochester, is already married to the mad Bertha Mason.

But in almost every other marriage we witness, by their silence, the congregation and, importantly, the couple promising that none of the above are impediments to the marriage.
The second promise, once that heart stopping moment has passed is that the couple promise, in what are now the most anodyne of words, “to be loving, faithful and loyal to” each other “in good times and in bad” ”for the rest of our lives together.”

What did the Gender Recognition Act 2004 require?

Bearing in mind the requirement for marriage to be between a man and a woman; before the Marriage (Same Sex Couples) Act 2013 (MSSC Act), the Gender Recognition Act 2004 (GRA) requires that if one partner in a Marriage or a Civil Partnership transitions (changes the gender role in which they live), and wishes to obtain recognition of their preferred gender for all legal purposes, the marriage or civil partnership must be ended.[1]

However, if they wish to remain ‘contracted partners’ – which many do, whether for love or survivor pension benefits – the trans person is required to obtain an Interim Gender Recognition certificate, which they or their spouse can then use to have the marriage annulled. The couple can then lawfully contract a civil partnership (or a marriage, if gay or lesbian partners). This system was put in place in order to ensure that nobody was party to any ‘accidental same sex marriage’, and at the same time, protects the hard earned survivor pension benefits of each of the spouses.

Such a couple can have their marriage annulled within the high court, and with a little pre-planning can cross the road to the Registrar’s office and contract a civil partnership (or vice versa) the same day.

It was always rather ridiculous. Couples, particularly if their marriage includes a religious significance for them, are not going to get their marriages  (or civil partnerships) annulled if they are still happy together, especially after their religion has helped them stay together through probably one of the most difficult things that could happen to partners; one of them changing their gender. A few couples did use this route to civil partnership (or marriage), primarily to guarantee the human rights regarding privacy that they are entitled to, but none that I have known were happy about having to end the marriage, albeit they did then become civil partners.

And it was not just trans women who were married to cis-women, who were going through this very British farce, but also trans men who were married to cis-men.
I refer to it as a farce because the process of annulment and re-partnering was indeed
"a comic dramatic work event or situation that is absurd or disorganized ... typically including crude characterization and ludicrously improbable situations".
Disorganised, in that High Courts outside London frequently had no idea of the rules of the court under which this process could happen; the courts had to be told which particular rules they could perform their functions. But clearly, entirely based upon crude characterisations of what it means to be men or women.

In reality though, apparent same sex marriages, generally of older grey haired ladies were already being witnessed by the public long before the GRA or the MSSC Act came into force.  And the sky had not fallen in.

To their neighbours, these spouses, whether married or civil partnered, were proof that not only was gender reassignment successful but that same sex marriages already existed, that the children of those families were all perfectly fine citizens, and surprisingly maybe to many on the conservative right, they were evidence that successful same sex marriages could flourish in small rural hamlets as well as large urban centres.

For all other areas of law, apart from marriage, European Union jurisprudence already means that when it comes to employment and equality law, and other related matters such as state pensions (conceded by government in 2011, only after a 6 year battle) trans women and men were for all legal purposes already members of their new gender. The GRA was simply a way of providing the icing on the cake - finally recognition of the right to privacy and the right to form legally valid families, whether married or via civil partnership.

What about the Marriage (Same Sex Couples) Act?

As the MSSCA made its way through parliament, an opportunity came to change what was clearly legally abhorrent; the only time law had ever been used in the western world (and probably also in the east) to insist that a long and happy marriage must be ended before one party could gain their human rights, rights that had been recognised by the European Court of Human Rights as long ago as 2002. 

Schedule 5 of the MSSC Act is intended to finally get rid of that legal anathema, and to allow trans people to obtain their Gender Recognition certificate – and importantly their human rights - whilst retaining their marriage (or civil partnership) to the person they love.

Moreover, the MSSC Act provides a ‘fast track’ for those trans people who had put their request for gender recognition on the back burner because, whether for religious, personal, or emotional reasons, they did not want to annul their marriage and contract a civil partnership. Finally, the MSSC Act addresses the problem of those people who have had their marriage annulled and who have consequently contracted a civil partnership. They can now apply for their civil partnership to be converted into a traditional marriage.

Yet, on the back of this good news, some Trans people who could benefit, and their wives or husbands, have raised some concerns.  Schedule 5 requires the spouse of the trans person to “consent to the marriage continuing after the issue of a full gender recognition certificate”.
They now ask whether it can possibly be fair for them to be required to ask their spouse to give consent, effectively give permission, before they can apply for a Gender Recognition certificate. Isn’t this a veto given to their spouse, who could now prevent them from getting a Gender Recognition certificate?

However, I believe that they have misunderstood the purpose of MSSC Act.

Agreeing the New Marriage Promises

No one has to ask anyone’s permission before applying for a Gender Recognition certificate. All people who meet the requirements for the GRA can apply. In the past they had to get divorced or annul their marriage. Now, from the time when Schedule 5 of the MSSCA comes into force, the GRA will longer demand a married trans person end their marriage before obtaining gender recognition.

Despite what the government has maintained throughout the passage of the MSSCA, the nature of marriage has changed. With the Gender Recognition Act 2004, marriage promises had already gone through a subtle change in that individuals could now promise they were marrying a person of the opposite gender and (if they wished) further promise they would be loving, faithful and loyal regardless of the person’s biological sex, or their genitals now or in the future.
The new marriage contract, after Schedule 5 of the MSSC Act, comes into force, means individuals will be able to promise they are marrying a person of either sex and (if they wish) and further promise they will be loving, faithful and loyal regardless of the person’s gender identity or their genital structure now or in the future.

Clearly this is a significant difference. Those couples who married before the GRA came into force, made a promise to the state that they were marrying someone of the opposite biological sex with different genitals and that is all that they could promise to do. Once their partner transitions and seeks to become - for all legal purposes - (as the GRA puts it) a member of “the opposite gender(sex)”, the fundamental nature of the marriage promises they made is challenged, at the very least logically, but also potentially legally, as the promised opposite biological sex marriage becomes a same gender marriage.

As a legal academic, I specialise in imagining the worst (pre-disaster’ing). Let us imagine a pre-MSSCA married man and woman have parted, but not ended their marriage. After Schedule 5 of the MSSCA comes into force, one spouse then transitions. Without the new requirement for consent of their spouse, the trans spouse could apply successfully for a Gender Recognition certificate, without any reference to the person they are married to - their spouse.  The non-trans spouse will then discover they have broken the promise they originally made and are now married to a person of the same “gender (sex)”.

The requirement for consent in Sch.5 is not that the spouse consents to their partner’s gender recognition, but is rather a requirement that the spouse acknowledge the change in the nature of their marriage promises. By their consent the spouse is updating those promises.
 If they do not consent, then presumably they are not happy with that change, and it would mean then that the couple then have to seek divorce or annulment. Of course they won’t then be married, but not because one spouse vetoes the other from obtaining gender recognition, but because they will not agree to a new set of marriage vows.

Surely this is Overkill?

Sch.5 of the MSSCA pushes couples towards facing the realities of their relationship.
If ​a spouse (or civil partner) is not willing to sign the form saying they recognise the change of status in their marriage (or partnership) it does not prevent the other spouse obtaining legal gender recognition - it simply lays the cards on the table, it is the writing on the wall: "this marriage or partnership is now over".

It is the very least that the legislation can do to protect spouses who have been not been consulted (or have even been deserted) about the proposed change in legal status of their spouse (or civil partner).

In PFC we see what might be referred to as the 'blunt' end of the trans community. I meet trans women (mostly) who have left their original spouse without divorcing them, and got married as a member of their new gender role. And they have no intention of telling their wife that they are now a woman, and they have no intention of telling their 'husband' that they are not legally female, and the marriage is neither legal because they are still married, and they are legally male. They contact PFC when they realise the facade of lies is about to collapse. Whilst we do our best to support them through what is going to be a very difficult time, we wish we could have stopped them creating this fantasy mess in the first place.

Both of my grandmothers were deserted by their husbands during WWII. My maternal grandmother was to find out that her husband had remarried, twice, without divorcing her. When he was prosecuted, she was so ashamed that she developed a lifelong mental health problem that ultimately resulted in her refusing food and starving to death. Three families, all involving children were wrecked because he refused to live in the real world rather than the fantasy one of his own making.  Imagine if my maternal grandmother had found that not only had he created two other families, but that her husband was now a 'she'.
The provisions in the Act are a contribution towards ensuring both parties to a marriage (or civil partnership) are content to live with the consequences of the not inconsiderable change that will befall their relationship when one spouse transitions. They are not a 'right of veto'.
STW 19/08/2013

[1] Henceforth whenever marriage is referred to it also refers to a civil partnership, and when a civil partnership is referred to it also refers to a marriage. This is because gender identity has no relationship to sexual orientation, and trans people can have heterosexual , homosexual or bisexual orientations.