The spousal veto is still a veto, even if you pretend it isn’t

So, the Mar­riage (Same Sex Cou­ples) Act got given Royal Assent yes­ter­day and, while I’m happy at the gen­eral idea of peo­ple in same-gender mar­riages being able to marry, I’m not singing Danc­ing Queen and wav­ing my pride flag just yet. Because the leg­is­la­tion con­tains a rather insid­i­ous prej­u­diced open secret: the spousal veto. The lovely Sarah Brown, who should be thanked for her tire­less cam­paign­ing for trans mar­riage equal­ity, has a bril­liant blog post about it here. I don’t want to dupli­cate her too much, so if you haven’t read it, do so now. And while gov­ern­ment min­is­ters and even some oppo­si­tion MPs alike are pre­tend­ing it’s not a veto, the way it works means it is.

Sim­ply, the spousal veto arises from the sit­u­a­tion that, under the Gen­der Recog­ni­tion Act 2004 as passed, trans peo­ple who were in mar­riages could not get Gen­der Recog­ni­tion Cer­tifi­cates, as same-sex mar­riage was not legal at the time, although Andrew Mitchell (he of “fuck­ing plebs” fame), with some Lib Dem and even Labour back­bencher back­ing, pro­posed an amend­ment allow­ing peo­ple already in mar­riages when the GRA passed to stay in them. The min­is­ter respon­si­ble for the bill rejected the amendment:

Based on a fun­da­men­tal prin­ci­ple, the Gov­ern­ment stand by the require­ment that mar­riage is for opposite-sex cou­ples. I realise that the hon. Gentleman’s pro­posal is well inten­tioned towards trans­gen­dered peo­ple who are together, but the Government’s posi­tion is that such a pos­si­bil­ity is remote, and in those cir­cum­stances, we believe that end­ing such a mar­riage and begin­ning afresh would not be unrea­son­able. On that basis, I am unable to accept the new clause.

David Lammy, 25 Octo­ber 2004

This shows a com­mon thread that still per­sists even with the new Act: that the gov­ern­ment wanted to main­tain the legal fic­tion that gay peo­ple are mar­ried. But under the Gen­der Recog­ni­tion Act, any Gen­der Recog­ni­tion Cer­tifi­cate appli­cant would have to demon­strate they had lived full time in their pre­ferred gen­der for two years — so, effec­tively, they were recog­nised as gay by soci­ety. And the rest is his­tory: 151 cou­ples were forced to divorce because of this insid­i­ous belief. 151 too many.

So, with the mar­riage bill con­sul­ta­tion, Lynne Feath­er­stone announced this prac­tice was to end, and many trans activists were enfused with joy. But with the cab­i­net reshuf­fle, Lynne moved to Inter­na­tional Devel­op­ment (and refo­cused her efforts on FGM) and the sole voice of trans issues moved with it. So when the bill came out, we were faced with this clause, in Sched­ule 5 of the bill:

Sec­tion 4 (suc­cess­ful appli­ca­tions): for sub­sec­tions (2) and (3) sub­sti­tute—
“(3) 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,
(b) the appli­cant is a party to a mar­riage that is not a pro­tected mar­riage,
© the appli­cant is a party to a pro­tected civil part­ner­ship and the other party to the civil part­ner­ship has not made an appli­ca­tion under sec­tion 1(1),
(d) the appli­cant is a party to a pro­tected civil part­ner­ship and the Panel has decided not to issue a full gen­der recog­ni­tion cer­tifi­cate to the other party to the civil part­ner­ship, or (e) the appli­cant is a party to a civil part­ner­ship that is not a pro­tected civil partnership.

It’s since been amended, but the gist has remained the same: when you apply for a Gen­der Recog­ni­tion Cer­tifi­cate, your spouse has to con­sent to the mar­riage con­tin­u­ing, oth­er­wise you only get an Interim Gen­der Recog­ni­tion Cer­tifi­cate, which, despite its name, is lit­tle more than a divorce instru­ment (under sec­tion 12(g) of the Mat­ri­mo­nial Causes Act 1973), and one that expires at that. The law, even as amended, is very clear: under Sched­ule 5(4), the GRP must issue IGRCs to an oth­er­wise suc­cess­ful appli­cant who is mar­ried but does not include the statu­tory dec­la­ra­tion, and they must reject later (full) GRC appli­ca­tions with­out it, unless the spouse is deceased.

And that’s where we hit prob­lems: it’s already known that estranged spouses will do all sorts of legal trick­ery to get at their part­ners, includ­ing start­ing divorce pro­ceed­ings so the other can’t do so. And this hap­pens with trans peo­ple: accord­ing to a sur­vey com­mis­sioned by Zoe Kirk-Robinson (Trans offi­cer for LGBTory, among other things), 44% of cis spouses have tried to stop their part­ners from tran­si­tion­ing, and 29% have tried to delay divorce pro­ceed­ings, to effec­tively pre­vent legal gen­der recog­ni­tion. To pre­tend it doesn’t or won’t hap­pen is an absolute fantasy.

It’s telling, that Gov­ern­ment min­is­ters, briefed by their civil ser­vants who role-played the part of the cis spouse when writ­ing the amend­ment, have resisted steps to rec­tify this. Why? Because of the feel­ings of the cis spouse:

Amend­ments 13 and 14 would require the Gen­der Recog­ni­tion Panel to issue full gen­der recog­ni­tion cer­tifi­cates to all appli­cants in pro­tected mar­riages, irre­spec­tive of the non-trans spouse’s views. It would then be open to the non-trans spouse to issue divorce pro­ceed­ings. 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 also under­stand that the amend­ments are intended to deal with the prob­lem of hos­tile or obstruc­tive non-trans spouses who delib­er­ately seek to delay nul­lity pro­ceed­ings. I have not seen any evi­dence that that is a wide­spread prob­lem. If the grounds for the mar­riage being void­able are met, the hos­til­ity or absence of the non-trans spouse should not delay a court in issu­ing a decree of nul­lity. If
there is evi­dence that unnec­es­sary delays are occur­ring, we believe that it should be a mat­ter for the court.
It must be remem­bered that a mar­riage is con­tracted between two peo­ple who should have an equal say in the future of that mar­riage. We con­sider that it would be unfair to remove the right of every non-trans spouse to have a say in the future of their mar­riage before gen­der recog­ni­tion takes place. I there­fore ask hon. Mem­bers not to press their amend­ments relat­ing to gen­der reassignment.

Helen Grant, 21 May 2013

Those amend­ments were pro­posed by the good Doc­tor Julian Hup­pert, after draft­ing by Sarah Brown and Zoe O’Connell, and would’ve issued a GRC in all cases except for a request by the appli­cant or if the appli­cant was in a civil part­ner­ship (because, of course, mixed-gender civil part­ner­ships are not legal yet). This ties into the whole issue of being legally recog­nised as gay; for all intents and pur­poses except under the law, this cis spouse is in a same-sex mar­riage, with a per­son who has changed their name and has mostly likely under­gone med­ical pro­ce­dures to tran­si­tion (as Mike Freer, Con­ser­v­a­tive MP for Finch­ley and Gold­ers Green, pointed out). And as under sec­tion 11(1), “in the law of Eng­land and Wales, mar­riage has the same effect in rela­tion to same sex cou­ples as it has in rela­tion to oppo­site sex cou­ples”, and Sched­ule 5 is not an excep­tion to this, there is no change to the terms of the mar­riage as far as the law is con­cerned; there is only a change in the gen­der of one of the spouses.

The spousal veto also applies to peo­ple in civil part­ner­ships who made con­ver­sion appli­ca­tions after the issue of the IGRC. Which is rather insult­ing, because by the very nature of a con­ver­sion appli­ca­tion they con­sent to the con­tin­u­a­tion of the part­ner­ship as a mar­riage! And, when the gen­der recog­ni­tion fast track was imple­mented for peo­ple who missed the orig­i­nal win­dow of oppor­tu­nity, this too included the veto. If the first case was insult­ing, the con­ver­sion appli­ca­tion being made within six months of the IGRC being issued, then demand­ing that a trans per­son who has sac­ri­ficed their gen­der for their mar­riage for over six years to do so is a kick in the teeth.

So when it came to the Lords, Baroness Barker, the Lib Dem peer who came out dur­ing Sec­ond Read­ing, and Baroness Gould, the Labour peer with her ear tuned to the trans com­mu­nity, pro­posed a com­pro­mise, again pro­posed by Sarah and Zoe: this time, the cases in which the GRP could issue full GRCs to peo­ple who hold IGRCs were expanded from the two orig­i­nal cases to four: Case C would’ve auto­mat­i­cally granted the cer­tifi­cate after twelve months and no divorce pro­ceed­ings have started, and Case D would’ve applied to civil part­ner­ships con­verted into mar­riage. Case C was designed to com­bat spouses who were estranged or oth­er­wise miss­ing, and really, there’s no objec­tion to that, is there?

Well…

Baroness Stow­ell of Bee­ston: I hoped that I had responded to that, because we are clear that one spouse is not veto­ing some­body else’s rights. If the transper­son in the mar­riage wants to go for full gen­der recog­ni­tion and receive the cer­tifi­cate, they are absolutely enti­tled to do that. How­ever, if the per­son to whom they are mar­ried does not want to remain mar­ried to them, then they have to make a deci­sion about the future of their mar­riage. We argue that for the non­transper­son, whether they wish to remain mar­ried to some­body who has gone through gen­der reas­sign­ment is quite a fun­da­men­tal thing to have to con­sider. This is not say­ing that some­body who wants to reas­sign their gen­der is not able to do so. The issue is whether they are able to remain in the same mar­riage. The per­son to whom they are mar­ried also has some right to decide whether they want to remain mar­ried to some­body after that per­son has changed their gen­der.
Baroness Thorn­ton: The point here is whether the effect of this is that the transper­son can­not com­plete their tran­si­tion. That is the point the Min­is­ter is not answer­ing.
Baroness Stow­ell of Bee­ston: For­give me, but I think I am. I am say­ing that if some­one wants to go ahead with gen­der reas­sign­ment and their spouse does not agree to remain mar­ried to them, then it is open to them to start annul­ment pro­ceed­ings, as indeed it is to the spouse who no longer wishes to remain mar­ried to them. Both of them have the right to start an annul­ment pro­ceed­ing, and the per­son who wishes to change their gen­der and receive a full cer­tifi­cate can do that. It is not about them being unable to change their gen­der. They have the right to do that, and nobody is stop­ping them doing that. How­ever, if the per­son to whom they are mar­ried does not wish to remain mar­ried, sadly they have to make a choice. They have to decide, and it must be their choice. It is not a choice that the state can make for them. This is an incred­i­bly dif­fi­cult sit­u­a­tion, as has been made clear in the course of this debate. Fun­da­men­tally, it con­cerns the deci­sion of two peo­ple about their future. Each per­son has equal rights in the future of their mar­riage, but they must decide for them­selves. These amend­ments seek to insti­tute a time limit after which the state decides for them. It is not for the state to decide who peo­ple should be mar­ried to.

24 May 2013

That last line is rather strange in a debate on the state decid­ing that peo­ple in same-gender rela­tion­ships should be allowed to get mar­ried. And here we get the maneu­ver­ing that it’s not a veto, it’s about spousal con­sent, an argu­ment that Baronesses Thorn­ton (Stowell’s oppo­site num­ber), Gould, and Barker were not con­tent with (espe­cially, as Thorn­ton pointed out, spousal con­sents were repealed years ago, and as Gould pointed out, the idea of con­sent was never brought up dur­ing the Gen­der Recog­ni­tion Act 2004 debates). But you have to for­give Stow­ell, really. More than Helen Grant, it was obvi­ous she was read­ing what the Civil Ser­vice had given her.

And she helped with this maneu­ver con­sid­er­ably with her Report Stage amend­ment, that was a “clar­i­fy­ing” amend­ment that said that the spouse was con­sent­ing to the con­tin­u­a­tion of the mar­riage, not the GRC being issued. But in prac­ti­cal terms, it made no dif­fer­ence, and she knew this, and the civil ser­vice knew this, and Gould, Thorn­ton, and Barker knew this.

It’s a bat­tle that, for the mean­while, we’ve lost. As with most trans issues, recourse won’t be given by Par­lia­ment, but by the courts. But for now, we’ve now given cis peo­ple the effec­tive right to veto their trans spouse’s tran­si­tion. It’s put some trans activists, includ­ing myself, in a quandry. While gay equal­ity is a good thing, it should never come at the expense of trans equal­ity. Some parts of our minds wanted to spike the bill and return to the draw­ing board, know­ing that any promises that they’d come back for us were empty. But other parts knew that when the non-inclusive ENDA died in 2007, the Amer­i­can LGB com­mu­nity, as if they needed any provo­ca­tion, turned their claws towards trans people.

The last word on the bill should be given to Dr Julian Hup­pert. As well as his amaz­ing speech at Report Stage on trans issues on 21 May, on Mon­day (15 July), he said, so succintly:

The one thing really miss­ing is a lot of issues for those who are trans­gen­dered. We have not restored the mar­riages, and there is much more to do with the Mat­ri­mo­nial Causes Act 1973, and we are still pro­vid­ing pen­sion sup­port only for the cis part­ners of trans peo­ple, not the trans peo­ple them­selves. The trans com­mu­nity is still mar­gin­alised and will con­tinue to be after the Bill is passed. Far too often LGBT seems to stop too early. We must look at that. The Bill will not end homo­pho­bia, but it will make a lot of people’s lives very much happier.

3 comments

  1. […] and pol­i­tics. If you’re not aware of it, see her post on the UK Same-Sex Mar­riage Act’s treat­ment of trans* peo­ple, as well as her com­men­taries on car­toon cen­sor­ship, athe­ist infight­ing and the Suzanne Moore/Julie […]

  2. […] opposed to assigned, gen­der. Here the idea of being legally homo­sex­ual, as dis­cussed in the pre­vi­ous post, rears its head again. Some­one like Ash­ley, who was by all accounts a suc­cess­ful female […]

  3. […] bisex­ual, queer and those who pre­fer not to self-label at all. [Edited to reflect that there are real issues in the cur­rent same-sex mar­riage leg­is­la­tion­that make it def­i­nitely not good for trans* and gen­derqueer folks, in par­tic­u­lar the concept […]

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