Is Spousal Veto based on Swiss Cheese?

Last weekend Prof Stephen Whittle posted his legal reasoning why the requirement for spousal consent is important.   Stephen is a professor of law, and his credentials in terms of campaigning for the rights of trans people are impressive, to say the least.

After an event in July, Stephen, Jacqui Gavin (of a:Gender) and I sat down in a small cafe in Westminster, where Stephen started outlining the thoughts he has now expressed in his blog.  The reasons can, I think, be boiled down to:

1. Marriage is essentially a legal contract between two people.  The requirement (up to now) for creating a valid marriage has been that one party is male (the husband) and the other is female (the wife).

2. A change of gender for one party would change the construction of the contract, in that the party is no longer the gender they were when the marriage was solemnised.

3. Changes to contracts can only be agreed by both parties.  Hence the spouse has to give consent to the marriage continuing.

4. By a statutory declaration that the spouse consents to their marriage continuing post gender recognition, the gender recognition itself is explicitly removed as a possible cause for divorce.

Stephen did say that he had received a phone call from the team working on the Marriage (Same Sex Couples) Act at some point before the Bill had been published, and that he had explained this line of thinking to them.  However he also said that he was horrified when the spousal consent clauses actually appeared in the Bill.  So, I’m not entirely sure that we can lay the “blame” for them at Stephen’s feet – although this line of argument, or a variant on it, is eventually what appeared from the Government ministers when defending the requirement for spousal consent.

As you’d expect, I think this line of reasoning is fundamentally flawed.

Firstly, when you sign a contract, you sign it with your name.  The marriage contract is no different: you are named on the certificate; you use your name in the vows.  Yet no-one is saying that by changing your name you are changing your marriage contract.  Indeed, such a line of argument leads to the requirement to renegotiate employment contracts, pension contracts, mortgage contracts, loan agreements, energy supply contracts, …  The list goes on and on and on.

Secondly, it depends on a legal definition of gender rather than a functional definition of gender.  After genital surgery and, in many cases, before that, the trans person is effectively a member of their “acquired” gender (to use the clumsly term in the Gender Recognition Act).  Gender recognition is an important technicality, largely for the (decreasing) number of protections it provides.

More importantly, however, for marriages contracted under the new Act (when it’s enabled, hopefully by the summer of 2014) gender will no longer be crucially important.  So, for these post-Act marriages, the change of gender is no longer material to the composition of the contract – it won’t matter whether a man marries another man or a woman – unless the Government chooses to make it so when the Act is enabled.  But the requirement for spousal consent will still exist for these yet-to-be marriages.  Removing it for these marriages would essentially create discrimination on the basis of age if it remains for pre-2014 marriages.

Most people marry for love, not for contractual reasons.  The idea of consulting lawyers before you get married (unless you’re a multi-millionaire) is fatuous.  Yet that was Stephen’s recommendation.

The inconvenient fact remains – with the requirement for spousal consent, trans people are now uniquely discriminated against in English law, as we are no longer trusted by Government to have worked things out with our spouses before the specific action of applying for gender recognition.  Spouses have no veto over decisions about seeking treatment or surgery.   Spouses have no veto over a trans person changing their name (unless you opt to do it by published deed poll, and even then you have the option to explain why you haven’t included a declaration from your spouse).  Spouses have no veto over people changing jobs, moving house, making large purchases, committing to courses of actions that they fundamentally disagree with.  For all of these, the spouse has the option of divorce.  Gender recognition becomes uniquely the one thing a spouse can veto within a marriage, at no risk to themselves but potentially jeopardising and removing the rights of their trans partner.

It is barbaric, and takes marriage law back by at least 40 years in this country.  Every human rights lawyer I’ve spoken with so far (and I’m seeing more on Tuesday with a view to looking at a judicial review) is simply appalled that these clauses managed to make it into law.

And spouses don’t seem to want it either.  When asked for evidence in a really short timescale, Sarah Brown, Zoe O’Connell and I put together a short survey for spouses of trans people.  We had only a few days, and spouses of trans people can be hard to get to.  We got 18 responses, of whom all 18 expressed the view that they should have no veto over their partners’ gender recognition, and 17 expressed the view that their partners’ gender recognition was a matter for the trans person alone, the remaining one stating they didn’t know.  Spouses don’t want the supposed protection from being “forced” into a same-sex marriage.  This evidence was rebuffed – but it was more evidence than the Government had, which seemed to be precisely none.  At about the same time, Zoe Kirk-Robinson’s survey was published, which revealed that around half of trans people reported their spouse had actively opposed their gender transition.

My wife has written a strong statement to the Scottish Parliament, who are currently considering equal marriage for Scotland.  She writes:

“There are two reasons why I don’t want to be asked to give consent prior to my spouse gaining her gender recognition certificate.

“Firstly, I find it offensive that someone would ask me to consent to someone else being given their basic human rights.  It is so wrong I find it hard to understand how others cannot see this, unless of course they don’t believe a person who is trans does indeed have the right to be themselves and be protected by law from prejudiced attack.

“Secondly, and more personally, while I have supported my spouse, and I am proud that we have made our marriage work post transition, I feel that giving consent to her getting her gender changed legally is akin to saying that I am totally happy with this; that it would be my first choice; that I embrace it with open arms.  It is not my first choice, but I have come to terms with it and am happy to continue with this marriage whether or not she acquires a gender recognition certificate, but I do not want to be part of that decision.  It is her decision to make, not mine.”

The Scottish Parliament’s Equal Opportunities Committee has come to the conclusion that, for the Scottish law, there should be no requirement for spousal consent.  This is welcome news.  But the battle for those north of the border is to ensure that the MSPs who now have to vote on this fully understand the issue.  For those in England and Wales, the plea is to keep the pressure up on the MPs and peers.  The Act isn’t enabled yet.  It is possible to enable the Act without the spousal consent clauses.  After all, the Easter Act 1926 is law and fixes Easter Sunday to the second Sunday in April – but that hasn’t been enabled yet!

Talking about enablement, we have the probable position for at least the last half of 2014 that people will be able to solemnise new same-sex marriages, while trans people in existing marriages will still have to divorce in order to gain gender recognition.  Effectively only certain types of same-sex marriages will be legal – the ones not containing trans people.  Ben Summerskill from Stonewall has put repeated pressure on the Government asking why enabling even the first part of the Act will take 12 months.  As far as I know, there is currently no timetable for enabling the rest – only a vague statement that Government does not anticipate full enablement before the end of 2014.

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One comment

  1. Stephen Whittle · · Reply

    The author clearly has no understanding of irony – the sort I used when I said (over a coffee table in the middle of a good humored discussion, in a cafe outside the ‘House’) couples would all need to have pre-nups. I never suggested in any sort of serious way that couples would need to see lawyers before they got married. If you are going to put words in my mouth, you could check them out with me first..

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