Trans People – do we have Cooties?

Just under 3 hours ago the Marriage (Same Sex Couples) Bill gained its third reading in the House of Commons with a majority of 205.

While this Bill removes a huge issue for married trans people in terms of them seeking gender recognition, and the Government has “conceded” on another big issue which was threatening to replace it, there are many issues that still remain.

Helen Grant

I’m going to quote quite extensively from Hansard.  Given that the link will change tomorrow, I’ll just quote rather than link.  Helen Grant was the Minister responding to the debate on behalf of the Government.

Helen Grant:

Government amendments 40 to 47 deal with pension entitlements. They amend part 6 of schedule 4, which provides for same-sex married couples to be treated in the same manner and to be entitled to the same survivor benefits as civil partners. As drafted, that includes couples in same-sex marriages who have preserved their marriage following the change of legal gender of one of the spouses, and it is designed to ensure that all same-sex couples are treated alike for this purpose. We recognise that our policy of treating same-sex marriages in the same way as civil partnerships for occupational pension survivor benefits may create a problem in relation to survivor benefits for a very small group of individuals whose spouses change gender during their marriage. We understand that this could deter a transsexual person from seeking to change their legal gender because of the financial impact on their husband or wife. If the amendments are made, widows of marriages that become same-sex as a result of the husband’s change of legal gender during the marriage will still be treated as widows for the purpose of calculating survivor benefits in a contracted-out occupational pension scheme; and for schemes that are not contracted out, in calculating any entitlement to survivor benefits, the marriage will continue to be treated as opposite-sex marriage.

Mike Freer:

If I heard the Minister correctly, she said that any transgender couple who transition will keep their full entitlement from the date of joining the pension scheme, but a civil partner survivor will still be restricted to the point at which civil partnerships became law. Does not that create yet another anomaly?

Helen Grant:

I think that I have made the position clear. The concession is intended to target a very small group of people, and we do not intend to open it up any further. The main reason for giving the concession is that there has been no break in the marriage.

So, the Government treats the trans pension issue as a concession rather than a recognition of accrued payments.  But, despite the language used, it is welcome.  Otherwise trans people who were members of public sector pension schemes (such as nurses, teachers, civil servants, firemen, soldiers…) would have had the gender recognition vs stay married issue translated into a gender recognition vs spouse’s pension issue – the Government switching the dilemma from family stability to financial security.

Helen Grant:

I shall now deal with the non-Government amendments on gender reassignment. Amendment 15 would enable a marriage to be held to be continuously valid from the date of the original marriage solemnisation, effectively restoring the original marriage. Amendment 22 would allow couples who have continued to live together following the annulment to apply to have their marriage reinstated from the date on which they notify the registrar of their wish to have their marriage reinstated.

I understand the concerns that prompted hon. Members to propose those amendments, and the Government have great sympathy for couples who felt required to make the difficult choice to end their marriage to enable one party to obtain gender recognition. However, it is not possible to reinstate a marriage that has been lawfully ended by an order of the court. It will be possible to backdate converted marriages to the date of registration of the civil partnership, as the civil partnership will not have been lawfully ended.

Couples who have continued to live together will be able to marry by virtue of the changes in the Bill. I realise that that will not be a reinstatement of the original marriage, but I sincerely hope that couples will feel able to make use of these important provisions. I realise that some transsexual people in this situation may be disappointed, but we need to ensure that a person’s legal relationship status is completely clear at all times in the eyes of the law.

Amendment 18 would enable a one-off payment of £1,000 from public funds to be made as compensation for the distress caused to and costs incurred by couples who had their marriages annulled to enable one or both parties to get gender recognition. I cannot support that amendment because we have to take the law as we find it. It is not fair arbitrarily to compensate couples who decided to end their marriage under the law that applied at the time. There will be other couples who felt unable to end their marriage and who may have suffered distress as a result of not being able to obtain gender recognition. We have taken on board the issues that the hon. Member for Brighton, Pavilion and my hon. Friend the Member for Finchley and Golders Green (Mike Freer) have raised, and we will continue to listen carefully.

Reinstating “stolen marriages” was always going to be difficult for the reason that Helen Grant gives – basically you make your decisions on the options open to you at the time.  However the entire Gender Recognition Act is built upon modifying history.  By saying that the Government hears the pain of those affected but can’t change the law is, I think, only going to increase the pain – because changing the law is what Government does!

However, thinking positively (and that is quite hard at the moment) the wriggle-room is in Helen Grant’s last sentence.  Maybe there’s scope for compensation for all people who either dissolved marriages to gain gender recognition as well as those who did not dissolve marriages at the expense of foregoing gender recognition?

Helen Grant:

Amendment 12 is intended to remove the provision in the Matrimonial Causes Act 1973 that makes a marriage voidable when a transsexual person marries a non-trans person but does not inform that person of their trans status prior to the marriage or at the time when it takes place. I cannot accept the amendment, because the current provision in the 1973 Act and the corresponding provision in the Civil Partnership Act 2004 provide important protection for the non-trans spouse. If a non-trans person finds themselves in a marriage to which they did not fully consent, it is only right that they should be able to apply to annul the marriage rather than have to wait to bring time-consuming and often costly divorce proceedings.

This is more problematic.  In her response the Minister is saying two things – firstly that the state still recognises being married to a trans person who didn’t disclose as an awful thing requiring fast legal remedy, and secondly a misunderstanding of the reasons behind the amendment.  The Matrimonial Causes Act gives other grounds for ending a marriage:

12   A marriage celebrated after 31st July 1971 shall be voidable on the following grounds only, that is to say –

(c) that either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise;

Clause 12 (h) is just another mechanism for voiding a marriage.  Clause 12 (c) gives equally fast solution and it can (and should) be argued that withholding information about gender history means that the other party did not validly consent to the marriage.

The actual point was more nuanced than the Minister seems to understand.  It wasn’t an amendment to remove the “if you’ve unknowingly married a trans person then you can escape” clause, because actually this is not how the law would work.  Instead, it was removing clause (h) because that clause ONLY applied to those trans people who had gender recognition certificates.  If a trans person does not have a gender recognition certificate and does not disclose their gender history, their spouse would have to rely on 12 (c).

This was the argument presented to the civil servants.  It is unclear whether this argument got to the Minister.  If it did, the Minister plainly didn’t understand it.

Original photo RAW 3456x2304 or 2304x3456

Helen Grant:

Amendments 13 and 14 would require the Gender Recognition Panel to issue full gender recognition certificates to all applicants in protected marriages, irrespective of the non-trans spouse’s views. It would then be open to the non-trans spouse to issue divorce proceedings. I understand that the amendments are intended to remove the so-called “spousal veto” in schedule 5. However, let me be clear that non-trans spouses will not be able to veto their spouses obtaining gender recognition. I also understand that the amendments are intended to deal with the problem of hostile or obstructive non-trans spouses who deliberately seek to delay nullity proceedings. I have not seen any evidence that that is a widespread problem. If the grounds for the marriage being voidable are met, the hostility or absence of the non-trans spouse should not delay a court in issuing a decree of nullity. If there is evidence that unnecessary delays are occurring, we believe that it should be a matter for the court.

This is also very problematic.  The government is basically saying that they don’t believe that hostile or obstructive spouses exist in cases of divorce involving trans people, and if they do then the trans person has to wait for divorce before gender recognition.  The call for evidence was a late one, and one which the Labour benches believe is absurd.

In any case, on a basic human rights issue, this is problematic.  You are now requiring a married trans person not only to satisfy a panel of medics that they are who they are but also gain the consent of a spouse, hostile or otherwise.

My own wife’s view is that my gender recognition should be none of her business, in the same way as any medical treatment I receive is none of her business.  (Obviously we talked through surgeries and so forth.)  But she wasn’t consulted when I was prescribed anti-depressants.  In her view those had a significant impact on our life together, because I became soporific and zombie-like.  When presented with the form from Charing Cross GIC requesting her permission for them to recommend treatment, she wrote them a long and angry letter saying that it was none of her business, and if they decided that treatment was appropriate then who was she, as a relatively uneducated lay person, to stand in the way of the professionals?

Helen Grant:

It must be remembered that a marriage is contracted between two people who should have an equal say in the future of that marriage. We consider that it would be unfair to remove the right of every non-trans spouse to have a say in the future of their marriage before gender recognition takes place. I therefore ask hon. Members not to press their amendments relating to gender reassignment.

This was one of two key issues I raised in my piece yesterday for Gay Star News.

Where to go now, when the government won’t listen?  Well, a first step may well be human rights lawyers.

Julian Huppert

We have discussed some important and detailed issues that matter intensely to a range of people. I am grateful for the tone in which the debate has been conducted by almost everybody; it has been productive. I know that people from the trans community and other minority sexual communities who have been watching are impressed that Parliament is able to discuss these matters.

The hon. Member for Bournemouth East (Mr Ellwood), who is no longer in his place, said that there is no pent-up anger about some of these issues. I would quote comments sent to me by some of my transgender colleagues, but I suspect the language would be rather unparliamentary. There is certainly pent-up anger among people about their stolen marriages.

As I am sure the Minister is aware, I disagree on some of the detail about these amendments and I maintain that there are some concerns. I was worried by some of the language about not fully consenting to a marriage, although I am sure the Minister did not mean to imply that people need to be protected from transgender spouses or transgender people—I am sure that is not what was intended. I was grateful to hear her say that the Government will continue to listen carefully on such issues. I hope there will be further discussion in another place and that the Government will reflect on what more they are able to do.

Julian did sterling work today, alongside Caroline Lucas and Kate Green.  In fact, Julian’s earlier speech was a master-class in raising trans issues on the floor of the House.  But Julian also picked up on the “ew, icky” tone that was emerging through Helen Grant’s response.

Ultimately this is what government has to address.  If the Minister for Equalities is granting equalities to one group of people through gritted teeth, that’s a problem.  If civil servants are deliberately not passing correct information through to Ministers, that’s a problem.

I’ve talked and written elsewhere about transphobia and my preference to use the term cis-genderism instead.  I get the strong impression that cis-genderism is what’s going on here.  The concession that the Government has granted is for the benefit of cis-people.  The human rights abuse that the Government refuses to concede is refused to the perceived benefit of cis-people.

And that’s a strong message that many trans people picked up this evening – Government pays lip service but is still coming across as inately transphobic.  Maybe the Government ought to re-read the MacPherson Report and then think about how it’s treating trans people.

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3 comments

  1. Sunbird · · Reply

    Now suggesting that some protected characteristics carry more weight within Government and with certain civil servants is something with which I would definitely agree.

    However, you are not quite right when you say that the GRA re-writes history. It doesn’t. If you read back over the work done on GRA you will appreciate why it was important that it doesn’t. Instead it enjoins people to behave *as though* history had been re-written. It is a *very* nuanced point but I would suggest quite crucial to understanding GRA.

    Once that is understood, I personally find it hard to see how the same approach could be adopted to resolve the “stolen” marriages issue. I guess there might be a way. I don’t know who drafted GRA s9 but it is a work of genius, certainly I don’t think I would have identified a way of passing a rope through the eye of a legal needle as it does, so maybe somebody else could see a form of words which would work for “stolen” marriages. The Government has pointed out the problems with compensation since those who didn’t get a GRC arguably suffered as much.

    I think there is a clear problem here. The issues are complex and the amendments being proposed are not nuanced enough. Government lawyers and draftsmen will quickly see the problems in them. For future much smarter drafting of amendments is a priority.

    A smarter amendment might have been to create a mechanism by which the decree nisi for the original marriage could be voided. Complex but on a quick look some jurisdictions do have circumstances in which a divorce decree can be voided. The replacement civil part would be itself become void because the two parties would be still married. It’s very ugly and might not have flown but it might have stood a better chance because it would contain less novelty.

  2. […] same-sex marriage bill was never perfect, and it certainly wasn’t perfect for trans people as this blog by Helen Belcher explains. The one really good thing for trans people was it meant an end to the forced confiscation […]

  3. […] There are many points at which the non-transitioning spouse may decide to throw in the towel.  Helen Grant’s statement of the Government’s position seemed to indicate that they simply couldn’t conceive of a spouse who would want to draw out […]

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