Life After Same Sex Marriage

While not yet a done deal, it may be time for people in the trans and intersex communities to think about life after a Same Sex Marriage Act.

Various discussions with senior people in all mainstream political parties have resulted in an amendment to partially remove the spousal veto that was causing so many issues.  While in no way perfect, the reduction of the veto to a delay of between six and twelve months is liveable with, at least in the short term.  However acceptance of this compromise should, in no way, indicate the trans communities acceptance of the government’s apparent continuing rejection of the notion of self-determination.

Binary gendered thinking seems to permeate the civil service.  While some within certain departments are more enlightened, the idea that your gender should be somehow immutable and is absolutely necessary for government to be able to easily identify you and your entitlements (and responsibilities) is very hard to shift indeed.Non-conforming or changing gender even somehow seems to be viewed as a security risk because, as we know, a biometric which narrows down a search to around 50% of the population has to be essential for our ongoing safety.  Forgive the sarcasm.

One thing I have noticed over recent months is the tendency for younger trans people to challenge this normative binary thinking.  It seems to me that trans people increasingly want to own their identity, not farm recognition of it out to a largely anonymous panel who they will never meet.

Against this you still have a phalanx of people who insist that you need to be proved in some way genuine – as if trans was a club that needs to be careful who it includes.  Only the truly deserving should gain treatment and rights.

Christine Burns has drawn attention to the changes in thinking and practice that are emerging from Latin America – the concept that trans is a condition, not an illness; that different trans people have different needs.  What was so interesting about today’s NHS Commissioning workshop was that the same ideas were being consistently promoted by a wide range of delegates.  Jane Fae has started to express her idea that trans people seek out a position of comfort with themselves, again something that John Dean (who has been appointed as the Chair of the NHS Clinical Reference Group for trans care) remarked on today.  All this means that treatment, recognition and identification of trans people should become as individual as the people themselves.

All the time the Gender Recognition Act looms in the background.  For its time it was progressive legislation, despite its flaws.  The UK was, I think, the first country to decide that trans people didn’t have to have undergone genital surgery (in effect, sterilisation) in order to be eligible for gender recognition – an approach which even now causes concern and debate in some of the more traditional trans support forums.

But the Act is predicated on the notion that gender change is something so fundamental that it needs to be proven beyond doubt – and medics play a large part in that determination.  The existence of the Act, more specifically the existence of gender recognition certificates, causes confusion in the vast majority of the population – that you’re somehow not validly trans without a GRC.  The understanding that you cannot apply for a GRC for a minimum of two years hasn’t permeated the national consciousness.

Yet, paradoxically, the people who are often in most need of the protections that a GRC offers are the newly transitioned.

It also seems to me that the Act is predicated upon fear.  Sadly that fear is not groundless for many trans people, with employment discrimination still a reality alongside a media-fuelled fascination with a perceived story of transformation, somehow only validated by the existence of former names and pictures.  The Act attempts to partially rewrite history, which then causes problems in supporting documents.

It also seems to me that a number of people who defend the Act’s provisions, indeed would wish them to be tightened so that only “true transsexuals” can gain recognition, do so also on the basis of fear – this time that provision of healthcare, so necessary for many trans people, would simply be withdrawn if pathologisation was removed.

Fear does not seem to me to be a good basis for logical lawmaking – at least not beyond a short-term measure.

But what does the Act really provide, in practice?  More specifically, what will it provide after the Same Sex Marriage Bill gains Royal Assent?  After all, one of the key drivers for the Gender Recognition Act was the requirement to allow a trans woman to legally marry a man.

It provides a level of proof of identity, for those rare occasions where you need to produce your birth certificate.  But passports and driving licences are used far more frequently to provide proof of identity, and both the DVLA and the Passport Service have, for years, issued appropriately gendered documentation to trans people.

It provides a level of confidentiality over someone’s gender history, except that taking legal action to close a breach itself runs a risk of destroying that confidentiality.  And the protection is incomplete, as the law still indicates that trans people must disclose their history to potential spouses in a way that people on the sex offenders register don’t – a principle that alarms those aware of the recent “sex by deception” cases.  The Equality Act seemed to row back on protections for trans people that had been inserted into the Sex Discrimination Act, with a notorious named exemption for trans women working in a rape crisis centre.  So you’re treated only as your “acquired” gender up to a point.

Underpinning those exemptions seems to be the feeling that trans people are, somehow, only playing at their new gender – a theme that feeds into wider social discourse around radical feminism and fears of sexual predation.

What we need is a revised Act which places gender into its right context – an Act which acknowledges the diversity of genders out there – an Act which places more emphasis on self-declaration and less on your ability to prove yourself and jump through bureaucratic hoops.

Even though unwilling to risk the Same Sex Marriage Bill by inserting amendments requested by trans people, the government does appear to have acknowledged that the situation is not right, and have indicated they are willing to listen.  On the same track the Government Equalities Office should be launching a client-side review of the Transgender Action Plan in the next few months – an opportunity for trans people to say what’s working and not working.

Will we get another gender recognition bill?  Who knows?  But I do believe that the ears of most parliamentarians who are influential in this area are now open.  And today’s discussions with key players in the NHS hierarchy also indicate that this message is also getting through in areas of healthcare.

The sands are most definitely shifting.


  1. I’d just like to point out the at the most recent National Union of Students’ LGBT Campaign conference, a motion was passed which basically stated that the Gender Recognition Act, though progressive in its day, is not working and is not good enough and called on the NUS LGBT campaign to lobby for the government to rethink and recognise that self-definition is the only definition of gender. If I recall correctly, it highlighted the recent change to the law in Argentina where any person can apply to have the name and gender on their birth certificate amended without submitting any form of “proof” that they are trans.

    The way the GRA currently works doesn’t appeal to me at all – the sheer cost of all those doctor’s notes and statutory declarations, the presumption of surgery and the request for a reason why surgery/ies have not been performed, the possibility of a request being rejected and the uncomfortable thought of having one’s name on a literal register of people who have had birth certificates re-issued for reasons of gender. All I want is to correct a very understandable but unfortunate mistake on my birth certificate so that my identity documents all agree with each other about who I am, is that really so much to ask?

  2. […] While not yet a done deal, it may be time for people in the trans and intersex communities to think about life after a Same Sex Marriage Act. Various discussions with senior people in all mainstrea…  […]

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