The latest amendment to the same sex marriage bill by government on spousal consent attempts to explain exactly what the consent is for – namely, consent “to the marriage continuing after the issue of a full gender recognition certificate”. In doing so, they once again spectacularly miss the point.
Irrespective of what the spouse is supposed to be consenting to, the underlying issue is that the spouse needs to give consent for something, and that is a reintroduction of a principle that has almost entirely disappeared from British law over the past 30 or so years – the only exception I can find is the law requiring someone who wishes to change their name by an enrolled deed poll to require their spouse’s consent – but even then you can make a declaration “that there is good reason why such consent should be dispensed with”. People don’t tend to enrol deed polls any more – there are other ways to change names. There is no such exemption in the same sex marriage bill – spousal consent must be obtained.
So what would the spouse’s refusal to grant consent mean? Well, basically, that they are not happy for the marriage to continue after the issue of a full GRC. But aren’t there are other ways to express this – such as seeing divorce lawyers? The government is now explicitly stating that spouses of trans people have a new, legal, passive-aggressive way of dealing with their partners.
The net effect of withholding consent for the marriage to continue, for whatever reason, is that the trans person cannot obtain gender recognition until the marriage is over. It remains a veto over someone else’s rights of recognition until the situation is changed. Government does not like the word “veto”, claiming that trans people can change the situation themselves, but this is not as easy as government claims – as we will see.
This doesn’t just affect those who are in stable, loving marriages which have managed to weather the storms of someone’s gender transition. It also affects those whose marriages did not survive and are now plodding their way through the divorce courts. A recent survey indicated that almost 30% of trans people reported that their spouses had made obtaining a divorce harder, presumably by placing obstructions or not negotiating or by repeatedly changing their mind. And now these soon-to-be ex-spouses have a new weapon given to them by the government – because the law makes no distinction between those couples who want to stay together and those who are in the process of parting.
I have listened to the government’s explanation and tried to understand where they’re coming from – I really have. The main line has been that the spouse needs to consent to their marriage becoming a same-sex marriage. The move from same-sex marriage to opposite-sex marriage is seen as a fundamental change in the legal contract – which might be understandable if the spouse had to consent to any other action in the transition process. A change of name, possible surgery and society’s perception of the relationship have all been undertaken unilaterally, and the spouse has no right to obstruct those processes. If they object then they have recourse to the divorce courts – and many, many spouses do take that route, far more than remain with their trans partner.
One thing that doesn’t seem to be widely understood is that the trans person must have lived in their “acquired” gender for a minimum of two years before they can apply for gender recognition. So that’s two years in which the marriage will, to all intents and purposes, already have operated as (or be failing as) a same-sex marriage. Two years may not be enough for divorce proceedings to have completed. I’ve heard first-hand reports of courts taking 4, 5 and 6 years to complete proceedings – in some cases they still aren’t complete. In the meantime the trans person is stranded. Several trans people say they concede to the most outrageous demands simply to try to bring divorce proceedings to a swift closure. So, in these cases, gender recognition will add to that already high price.
The government’s line, and Helen Grant is a family lawyer so she understands marital law, is that trans people can, in these situations, take their own steps to end the marriage. This is true – unless divorce proceedings have already been initiated by the other partner, and the same delays then occur, as settlements around access to children and distribution of property still need to be agreed before a decree absolute is issued. This is the same whether divorce or annulment proceedings are started.
However a second government line emerged yesterday, which is more insidious. This is that it now would simply take too long to check the 8,000 clauses relating to marriage in other legislation to accept any substantive amendments – so we have to accept the bill as it is. That might be an acceptable argument if the government hadn’t just tabled some more amendments!
I’ve been told that legislation is rarely perfect and that we should seek later opportunities to redress the issues. Except, if government has rejected compromise when it’s been offered and has maintained its incredible position throughout debate, why should we believe that it would do anything else with subsequent legislation? Are they expecting some kind of Damascene conversion, with scales literally falling from their eyes?
Equalities legislation, which this bill is, operates on the basis of principle. The arguments presented against the removal of spousal veto, including some advanced by some trans people, have nothing to do with principle, but everything to do with perceived practicality – a fear that a vote to amend this issue will jeopardise the bill; claims that we are overstating the case and the number of people adversely affected will be very small (a line, incidentally, that I also heard in 2004 when the Gender Recognition Act was passed leaving trans people in marriages in the deep, deep hole that we are currently in – there turned out to be many more than people had imagined).
I transitioned in 2004, and my marriage has, fortunately, survived. We had our 20th anniversary of our first date yesterday. By the time we celebrate our 20th wedding anniversary next May, we will have been effectively in a same-sex marriage for half of that time. My wife is one of the most supportive and understanding people you will come across.
Yet she objects to being required to give consent. When Charing Cross Gender Identity Clinic requested her consent to recommend treatment, she objected on principle – if professionals determined that I required treatment then who was she to stand in their way? Her refusal to give consent on continuation of marriage is also on a point of principle. She doesn’t object to our marriage continuing. In fact I rather think she hopes it will for a long time yet. She also doesn’t object to me gaining gender recognition. It would make our lives easier in many ways. But she does object to government demanding that she puts her name to paper saying that she consents – because this could be seen as her saying that she is completely happy with the situation, when she would rather I wasn’t trans in the first place. Life does that, throws people into situations which they work through as best they can, but you don’t ever have to sign legal documents that say you’re happy with those situations. She also believes that my gender is a matter for me and me alone. If the state demands that it controls my gender, then she doesn’t believe she should have any part at all in those discussions.
So her refusal places me in a position where, if I want gender recognition, I have to initiate divorce proceedings. If I did so, it would be unlikely that we would be in a position to reconstitute the relationship. So my choice will remain largely as it does now – gender recognition or marriage. This is the meaning of spousal veto. Government has created another flashpoint for marriages to disintegrate. So much for supporting marriage.
Government has never answered the core question – why gender recognition is so important that it alone requires spousal consent, when there are many other ground-breaking changes to marriages that do not require legal declarations of consent. Why is government placing spouses’ feelings above trans peoples’ recognition?
This, together with the “sex by deception” cases and the continuation in law of other measures which place trans people firmly as second-class citizens, makes it difficult to believe that government actually wants to listen. They seem incapable of explaining their position, yet our attempts to talk to them have also just seem to have bounced off stony ground.
Am I angry? Hell, yes. Because government is continuing to throw my rights under the bus while pretending that it’s progressing equality for all. I know I’m not alone.