Let’s unpack a couple of the issues from yesterday a bit more.
Matrimonial Causes Act 1973, Clause 12(h)
Just to remind you, this allows an annulment of a marriage if someone discovers their spouse has a gender recognition certificate (GRC) but didn’t tell them beforehand.
The Minister’s response yesterday was, basically, that such people needed to be able to get out of their marriage quickly. Yesterday I pointed out that the issue wasn’t so much the “get out of marriage to trans person free” card, but rather the discrimination that would exist between trans people with GRCs and those without. The clause would only apply to those who have GRCs – making a further disincentive to apply for one.
In the current context where trans people have been convicted for obtaining sex by deception on the simple grounds that they are trans, the Minister’s response continues this alarming trend. Namely, that trans people must be open and disclose their history in a way that doesn’t apply to pretty much anyone else.
The parallels here are if someone (including, say, a trans person) got married to a widow or widower, or even a divorcee, but the spouse hadn’t told them about their previous marriage – or if the spouse was an ex-prisoner, or any one of a myriad other reasons. Again “being trans” is singled out for specific treatment. These other cases would have to rely on clause 12(c).
But, lets go further. What would happen if clause 12(h) was invoked? What evidence would the court have to rely on?
The petitioning spouse (the one who’s gone “you what???” and then, presumably in some state of shock, filed for annulment) would be saying that “this person didn’t tell me”, while the trans person would then be forced to say either they did or they didn’t. But what proof would the trans person have that they did tell their now reluctant spouse?
Ultimately the only evidence would be a dated document signed by the petitioning spouse or a dated photograph of the (presumably shocked) spouse looking at the GRC. In all other cases you are relying on word of mouth, and it becomes anyone’s guess as to which side the court will drop.
So it’s not only that the trans person will be forced to disclose but, in order for the trans person to be “safe”, that there has to be some level of documentary proof that the trans person did actually disclose.
Admittedly the same burden of proof could be alleged for clause 12(c) as well, but that’s a more general, not focused on trans people, clause.
Let’s remind ourselves of the issue, then of the Minister’s response in the House yesterday.
The Bill as currently drafted has, in Schedule 5, the following:
(6B) If the applicant is married, and the marriage is a protected marriage, an application under section 1(1) must also include—
(a) a statutory declaration of consent by the applicant’s spouse (if the spouse has made such a declaration), or
(b) a statutory declaration by the applicant that the applicant’s spouse has not made a statutory declaration of consent (if that is the case).
Then further on
The certificate is to be an interim gender recognition certificate if—
(a) the applicant is a party to a protected marriage and the applicant’s spouse does not consent to the marriage continuing after the issue of a full gender recognition certificate,
So, consent is determined by the applicant’s spouse making a statutory declaration of consent. It cannot be assumed any other way. If the spouse does not make the statutory declaration of consent then only an interim GRC can be issued, and that has no real function other than as grounds to initiate divorce – if divorce hasn’t already been initiated in some other way.
Yesterday Helen Grant said:
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’m not entirely sure she gets it. If the spouse doesn’t consent, the Bill (as currently drafted) does not allow for a full GRC to be issued. A married trans person cannot obtain a full GRC without their spouse’s written consent. This is a veto – it can’t be anything else.
I have to admit that I’m not entirely sure how to resolve the distinction between informing a spouse that gender recognition has been applied for, thereby giving the spouse a “get-out” if they then need it, and allowing the spouse to delay, potentially indefinitely, someone’s gender recognition.
The argument has appeared to be that the spouse needs to consent to a change in status of their marriage. The government, while removing the distinction between same-sex and opposite-sex marriages with respect to pensions for trans people and their spouses, are wanting to retain it for this purpose – but I can’t see why. Marriage is surely marriage.
At the point a GRC is applied for the trans person must have been living “in role” for at least two years and have documentary evidence to support that. By that time, to all intents and purposes the marriage will be a “same-sex” one, for whatever difference that actually makes. So I can’t really see what the spouse is objecting to – other than, potentially, “oh no, I’m married to someone the state has now registered as trans”.
Which is why I’ve been campaigning for the whole issue of spousal consent to be completely removed. By all means, have a statutory declaration from the trans person whether they are married or not, and either a statutory declaration from the spouse that they are happy with the application or another statutory declaration from the trans person of the last known contact details for their spouse. The latter stat dec would simply allow the spouse to be informed of the application (which was actually the initial point). If, at some point, either of the stat decs was found to be fraudulent then the GRC could be removed on the basis of incorrect information being supplied.