Same-sex marriage is looking increasingly likely to be a reality in England and Wales as, following a hotly contested path, the process of the Marriage (Same-Sex Couples) Bill enters its final stages. This is widely being celebrated as a victory for equality, and while its introduction is undoubtedly a positive move, the proposed legislation falls a long way short of equality for many transgender men and women.
Currently, if someone is married and seeking a Gender Recognition Certificate (GRC), i.e. the document that allows someone to change their legal gender, they are required to divorce or annul their marriage before the GRC can be issued. This is the case even if they and their spouse wants the marriage to continue, and their only option is to enter into a civil partnership once the GRC has been granted. This can be an expensive and deeply upsetting process for such couples, and the European and Human Rights Commission recently recommended changing the law to allow for the automatic conversion of a marriage into a civil partnership upon one of them obtaining a Gender Recognition Certificate.
The "Spousal Veto"
The Government have apparently tried to remedy this problem in the Marriage (Same Sex Couples) Bill so that couples would no longer be required to dissolve their marriage. This would be good news, save for the proposed provision of what has been termed the "spousal veto". As originally drafted, this provided that the consent of the spouse was needed before a GRC could be issued to any married transgender person. Following objections, this has been amended so that their consent is now required for the marriage to continue if a GRC is issued, but this is little better as the ultimate effect is the same, placing the power to obtain a GRC not in the hands of the person seeking it, but their spouse.
The Government's thinking is apparently that this is necessary as it would be unfair to the spouses of transgender people for their marital status to be to be changed to a same sex marriage without their specific consent. This thinking does seem to rather go against the underlying principle of the Bill that there should be no legal distinction between the status of opposite-sex and same-sex marriages.
But there are still problems with this argument even if one does accept there would be a change in marital status. A person seeking a GRC is required to have transitioned for at least two years before making any application, so their spouse will be aware of that and so for all intents and purposes the any change in the nature of the marriage will have already happened. And a remedy to any potential unfairness already exists in the spouse being able to obtain a divorce.
The Difficulties of Divorce
Does it matter who takes steps to dissolve the marriage? For transgender men and women, it can do. A recent survey has shown that 29% of transgender people stated that their spouse made getting a divorce difficult, while 44% said that their spouse had actively tried to prevent them from transitioning. Some have purposefully delayed or caused difficulties in divorce or annulment proceedings, or have used it to as leverage when dealing with arrangements for any children or finances. So even where it is the person seeking a GRC initiating a divorce, they can face real difficulties that may not be present if it is their spouse who decides to end their relationship.
While we can acknowledge the difficult emotions that the spouse of a transitioning man or women may experience, we should not be creating or perpetuating a system that encourages lengthy or costly legal battles at the expense of those couples going through this process. And more importantly, it is wrong that sympathies for husbands and wives in these situations be used to limit the personal autonomy of transgender men and women.
The introduction of the Marriage (Same Sex Couples) Bill into law will be a milestone for the many gay, lesbian and bisexual men and women who will benefit and is reason to be celebrated. Given the difficulties the Bill has experienced in getting to this stage, it will be tempting not to want to rock the boat by objecting to any aspect of the proposals. But for us to be able to say that Equal Marriage has been obtained, we should not turn a blind eye to those transgender men and women who may find their lives made more difficult as a result.
The Coalition for Equal Marriage is encouraging their supporters to write to the Government to object to the veto, the details of which can be found here.Suggest a correction