Sex, Love &; Consent; Gender Recognition in the Marriage (Same Sex Couples) Act 2013
© Stephen Whittle stephen@pfc.org.uk
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 ...an
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.