An interesting meeting on the morning of April 1st, to discuss various issues around implementing phase 2 of the Marriage (Same Sex Couples) Act – specifically those which would affect marriages involving trans people seeking gender recognition.
Hugh Bayley MP
With the three trans people present there were a variety of government departments represented. I won’t try to document the pensions discussion. I can only conclude that Hugh Bayley, a former pensions minister, was right when he told me last year that pensions were complicated. We spent a long time discussing processes for two small groups of surviving spouses, neither of which may have anyone actually affected by gender recognition and retaining existing marriages in them! In fairness, this does seem to indicate that the civil service wants to “do it right” albeit within the constraints of the system they’re given.
But the real meat for me came in the initial discussion around marriage certificates, and what happens to them when one partner gains gender recognition.
The lady from the General Register Office (for it is they who manage the certificates around births, marriages and deaths) was at pains to point out that they haven’t made any final recommendations, and that the discussions were to shape their thinking going forwards. Added to which any recommendations need parliamentary approval.
It may be worth outlining the current procedure for reissuing a birth certificate on gender recognition, and why a reissued marriage certificate may also be required. For this discussion we will be talking about registers and certificates. It’s important to note that the certificate exists primarily as a certified copy of an entry in the corresponding register, and that the registers record the occurrence of an actual event. This will be a long post – it’s not an easy subject.
When someone is granted gender recognition, they are given a gender recognition certificate (GRC). Strictly speaking this solely gives permission for a revised birth certificate to be issued reflecting the person’s new name and recognised gender, although it does also reflect an entry on a central gender recognition register. When the revised birth certificate is issued, the details of that are also entered on a central register. In practice, the gender recognition panel lets the General Registers Office (GRO) know of a successful application for a GRC, and the GRO then issues both the GRC and the revised birth certificate at around the same time.
NEW MARRIAGE ACT
When Schedule 5 of the Marriage (Same Sex Couples) Act 2013 is enabled, this will allow trans people in existing marriages to gain gender recognition without having to dissolve their marriage. It’s a big step forward – although not necessarily as big as some (most?) would like – but this is not the place to bang on about spousal veto again. This then brings about the need to consider what happens to the marriage certificate.
The Gender Recognition Act 2004 (GRA) allows for a birth certificate to be reissued, because the birth certificate is taken as a primary identity document in lots of situations. The link between a real event and some of the purposes of the birth certificate becomes slightly tenuous when gender recognition is involved. However, a key driver within the GRA was to protect the privacy of the trans people involved. The decision as to whether to out yourself as trans should always belong to the individual concerned, and therefore it was important that documentation, such as a birth certificate, doesn’t inadvertently do this for you. This is precisely the battle that is being fought in Ireland at the moment, where birth certificates appear to be used even more widely as proof of identity than they do here in the UK. So the GRA effectively allows for privacy by reissuing a birth certificate in the new correct details. (The whole basis of whether a birth certificate is an appropriate proof of identity is also beyond this piece. Suffice it to say that anyone can obtain a copy of anyone else’s birth certificate, for a fee. Without this, the whole family history industry would probably collapse.)
Marriage is also a real event, but has the added complication of being a form of legal contract. The entry on the marriage register reflects that a marriage was contracted between two named people at a particular place on a particular date, was solemnised by an individual and also witnessed by two other people. Government has understood the requirement for privacy applies here as well, but recognises that the feelings of a second person – the spouse – also need to be respected. So the proposal at present is that married trans people who gain gender recognition will get the option to have their marriage certificate reissued. It seems as though this won’t happen automatically – although there is scope for this to happen at the same time as the reissuance of the birth certificate.
And this is where it starts getting complicated. Because, unlike the birth certificate, the marriage certificate holds a great deal more contemporary information:
For each spouse, the certificate details their age, profession, marital status (before the marriage) and address, and the certificate also holds a location and a form of words which identifies whether the marriage was conducted in a church or a registry office.
The current proposals are that the trans person will have one of two options:
- To have the original certificate reissued with the original date in the new names (option A); or
- To have a new certificate issued with the date of the GRC award in the new names (option B).
(Bear in mind that these are not final proposals.)
Having an option A certificate would indicate a same-sex marriage but dated before the Act was enabled, and therefore could potentially out someone as trans. However, you currently can have a situation where a trans person has changed their name, has not got a GRC, and then contracts a legal opposite-sex marriage where both names appear to be of the same sex – the marriage certificate doesn’t specify which is the bride and which is the groom. It would be interesting to note whether this has ever happened – I’m sure it has. Reference was made to one such possible wedding in a Scottish cathedral. (Note that this discussion was restricted to issues in England and Wales – cross-border issues only served to complicate things further, and Scottish independence would complicate them further still.)
The trans person and their spouse has no control over when the GRC is awarded (the gender recognition panel generally sits two or three times a month) so it is extremely unlikely that the date of the GRC award would coincide with an anniversary of their marriage – meaning that an option B certificate would have a date which wouldn’t have much meaning within the context of the marriage, even though the date might be important for different reasons to the trans person. Because the date wouldn’t be before the enablement of the Act, the certificate would not out an individual as trans, but it does mean the original marriage certificate will need to be retained in order to prove the longevity of the marriage (to, for example, pensions companies). A proposal was made within the meeting that the option could be made to use the date of the next marriage anniversary as the date of reissuing the marriage certificate. After all, a marriage is generally the only recorded event which you have a choice over, and so the date is generally important to both parties to the marriage.
MARRIAGE ON RELIGIOUS PREMISES
Because the civil service has to interpret the will of Parliament as saying that same-sex marriages are not allowed to be contracted on religious premises (most particularly Church of England) unless the organisation has opted in, the GRO is proposing that all re-issued marriage certificates (options A and B) would be as if the wedding was conducted in a registry office – which means that, for weddings conducted in religious premises, the location on the reissued certificate would be different and not the place in which the wedding ceremony originally occurred. In order to keep the GRO process simple, they are proposing to do this for all religious weddings, irrespective of whether the group involved has opted in or not. The implication is that the registry office chosen would be the one for the registration district containing the religious building.
The rationale behind this decision is that churches could not contract same-sex marriages, so a reissued certificate with a church as a location might also be taken as outing the trans person. Also, it is feared that offence might be caused to the churches in question – as the implication would be that they condoned a same-sex marriage, even though the church and vicar might be vehemently opposed. However, countering this is the option that the church might actively support same-sex marriage, the church may no longer be there, and the vicar may well have died.
The possibility of the Church of England changing its mind over same-sex marriage was raised, as was the fact that a large number of Church of England parishes currently support same-sex marriage. But the law is the law and, as it’s enacted, further primary legislation would be required in order to enable the Church of England (and Wales) to opt into being able to conduct same-sex marriages. You can see here that the Government is not only maintaining a distinction between same-sex and opposite-sex marriages, but also between religious and civil marriages.
In fact the more you go down this route, the more issues start leaping out of the woodwork. The ages on an option B certificate would have to reflect the ages of the spouses at the time of the reissued certificate. The assumption is that the professions would also have to be updated, as would the addresses – so presumably both spouses would share the same address on all reissued option B certificates. The question may then reasonably arise, if the couple has moved since their marriage, why they would choose for their wedding (and how did they manage the registration requirements) a registry office seemingly unrelated to where they lived at the time of the marriage – a question which is asked less about weddings in churches because people like to get married in a nice building. An unasked question was what would happen to marital status on the certificate – after all, both parties were actually married (to each other) at the date the marriage certificate was reissued. (I have since asked the question, and am awaiting a reply.)
There is a similar discussion about the registrar of the marriage and the witnesses to the marriage. The original registrar may no longer be in post, so the current registrar would have to be named on the option B certificate – yet the current registrar did not actually conduct the marriage (although they may well be responsible for re-registering the marriage).
Equally the witnesses didn’t witness the marriage as it is now described for any reissued certificate. Indeed the original witnesses may either disapprove of same-sex marriages or be deceased. The proposal appears to be that the re-issuance of the certificate could be witnessed by people within the small department at the GRO who are responsible for the gender recognition processes, but it then means that the witnesses mean nothing to the married couple (unlike the original witnesses). Also, given that the team is small, if one or more of the witness names becomes common knowledge, this may also out the marriage as containing a trans person. It did appear that the GRO were nowhere near final proposals in this area.
One thing I learnt about Parliamentary procedure in the meeting was around the instruments to enact legislation. There are affirmative instruments, which change primary legislation (the text of the Acts passed by Parliament), and there are negative instruments, which change secondary legislation (additional legislation agreed by Parliament but not drafted into an Act of Parliament). A negative instrument must be laid before Parliament for no less than 21 days, but typically does not get debated before it is enabled. However a primary instrument must be debated and scrutinised in both the House of Commons and the House of Lords – and this process can take up to three months.
Fortunately timewise, it looks as though the processes around reissuing marriage certificates are likely to be presented to Parliament as negative instruments, meaning they won’t be debated. However this means that there is limited scope (if any exists at all) to change them through Parliamentary process, so it’s important to get this right first time.
I’m not entirely sure there’s one correct solution here. The GRO appears to be on the right track by allowing people options. For some people it will be important to get the original certificate reissued, so that no reference needs to be made to former gender status and dead names. But with this comes the risk of being outed by having a seemingly impossible marriage registered and, if you got married on religious premises, this detail (and presumably the detail of who married you) would be replaced by the equivalent civil registrar and district. For others, it will be important to retain the original marriage certificate, but under the current proposals they then lose the ability to choose the date on any reissued certificate, and the details on the reissued certificate aren’t necessarily correct either. The certificate becomes solely a bureaucratic tool and loses any personal link to the couple involved. In order to make a process workable, the number of options has to be restricted, so it’s inevitable that whatever emerges won’t suit someone. The challenge is to minimise this.
For me, the current proposals are pretty unsatisfactory. My wife doesn’t want to lose the original marriage certificate, which I can understand even though I’m not too fussed about being outed any more. It’s a bit difficult now to want otherwise! But the date and the location are important to us, and I wouldn’t be happy with either of those being overwritten – although I would be happy with the date on the revised certificate being an anniversary of the original marriage. In some ways this is academic, because it’s unlikely I’ll be going for gender recognition because of the spousal veto – but enough about that. If spousal veto was done away with, I’d still be faced then with a fairly unpalatable choice about overwriting the location on the certificate, unless the Church of England comes to its senses before then. I do, however, wonder whether there’s scope for issuing a “short” marriage certificate which simply says that person X is married to person Y from a particular date – then the whole discussion about the supporting facts simply fades away.
This whole discussion also assumes a fairly vanilla setup. It’s not unknown for two trans people to marry, and under these proposals it’s entirely possible for this one couple to end up with three marriage certificates, each with different dates, depending upon when gender recognition takes place for each person.
There’s also the unaddressed question about reissuing birth certificates for the children of trans people – as the occasional requirement to produce them (for things like applications for passports or school places) also inadvertently outs the trans parent(s). Government took the decision early on that this kind of discussion was outside the scope of the 2013 Act, largely because where does it stop? Do you reissue a death certificate where the informant was trans and later gains gender recognition, for example? What about a marriage certificate where a trans person was a parent, a witness or a registrar? The 2013 Act dealt with marriage, not general trans issues – the reasoning went – so consideration will only be given to marriage certificates.
The fundamental question is what do the details recorded on the marriage register fulfil from a legal perspective? Reissuing a certificate seems to require re-registering the marriage (in order to keep the certificate consistent with the register) but the legality of the re-registered details may be open to question.
It seems that, once again, trying to force trans people into a system where much is assumed to be static (and binary) causes many problems. It could be argued that trans and intersex people create an environment where the registration of births, marriages and deaths needs to be very carefully examined, both as to its purpose and also its results – something that simply wouldn’t have been considered in 1837, when the basis of the registration system was put in place. Indeed the certificates haven’t changed that much, if at all, in the intervening 177 years.
Untangling this Gordian Knot will take some time, and also much thought and sensitivity. The only saving grace is that, as time goes past, the number of marriages where someone could be outed as trans by the apparent impossibility of same-sex marriage, will inevitably and sadly reduce, so that in 80 years or so, this whole debate will become largely academic as the reasons for not choosing option A diminish.