Equal marriage is a transgender issue

Some­thing I note with some despair is the asser­tion that mar­riage equal­ity is not a trans­gen­der issue. The argu­ment goes that it’s pri­mar­ily an LGB issue and trans peo­ple only get con­se­quen­tial ben­e­fits from it. Well, that’s not really accu­rate, as our his­tory, and the his­tory of oth­ers, shows.

A known hypoth­e­sis about priv­i­lege is that trans­gen­der peo­ple lose their gen­dered priv­i­lege and their het­ero­sex­ual priv­i­lege as they tran­si­tion; that, no mat­ter how they present them­selves, they’ll always be seen as the dis­priv­i­leged gen­der (in this case, female) or homo­sex­ual in some way. And vice-versa; as a trans les­bian, I’m very cog­nizant that I can be per­ceived as a cis­gen­der straight man (which does cause me some discomfort).

It’s also appar­ent when you look at it from a gay per­spec­tive: gay men are derided for being too femme, les­bians for being too butch. In some cases, gay men are seen as basi­cally women, and the oppo­site applies for les­bians. Sarah Brown’s speech to the Lib Dem/Stonewall fringe event last Autumn focuses on this.

The inter­sec­tion of sex­u­al­ity, gen­der, and gen­der iden­tity is well recog­nised. And no more is this more appar­ent than in law.

In 1970, the High Court heard the case of Cor­bett v. Cor­bett, now recog­nised as the infa­mous case between Arthur Cor­bett and his wife, April Ash­ley, that handed down the ver­dict that Ms. Ash­ley was a man and will be so in per­pe­tu­ity due to her chro­mo­so­mal makeup. This rul­ing, which effec­tively stopped the legal prac­tice of legal gen­der recog­ni­tion still applies today, although has since been lim­ited by the Gen­der Recog­ni­tion Act 2004.

And so it fell upon Par­lia­ment, in 1971, to pass the Nul­lity of Mar­riages Act, which is the first time in which leg­is­la­tion (as opposed to the prece­dent of Hyde v. Hyde [1866]) that same-sex mar­riage was explic­itly banned. The Hansard for the bill’s debate is inter­est­ing, as it does pri­mar­ily focus on Cor­bett and aspects of trans­sex­u­al­ism and very lit­tle focus is on cis­gen­der homo­sex­u­al­ity. The bill was eas­ily passed and ended up being con­sol­i­dated into the Mat­ri­mo­nial Causes Act 1973, for which the ban sub­sisted for forty years.

There were mul­ti­ple cases in which this restric­tion was chal­lenged, includ­ing three ECHR cases: Rees v. United King­dom (1988) and Cossey v. United King­dom (1990) upheld the restric­tion on trans peo­ple to marry in their pre­ferred, as 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 model, could still not get mar­ried to a man because she was legally recog­nised as a man; that the mar­riage would be to any observer a het­ero­sex­ual mar­riage was not even touched upon.

By the turn of the mil­len­nium, the winds of change were start­ing to blow. For exam­ple, the case of W v. W (2000), con­cern­ing an inter­sex woman assigned male at birth, ruled in her favour due to the aspects of the case (as the Cor­bett test was seen to be defi­cient). And then, in 2002, Good­win v. United King­dom found that restric­tions on trans­gen­der peo­ple mar­ry­ing in their pre­ferred gen­der were imper­mis­si­ble, thus cre­at­ing Europe-wide case law and direct­ing Par­lia­ment to make law for the pro­vi­sion of gen­der recognition.

And that they did, with the Gen­der Recog­ni­tion Act 2004, which reads like a civil servant’s wet dream. And it leads to the sit­u­a­tion we now know of — get an IGRC, dis­solve your mar­riage, get a GRC, enter into a civil part­ner­ship —  that was sub­stan­tially amended by the Mar­riage (Same Sex Cou­ples Act), and, again, has its gen­e­sis in the idea of being legally recog­nised as homo­sex­ual as being a bad thing. David Lammy’s state­ment, as the Min­is­ter respon­si­ble for the GRA, con­firms that, and the civil ser­vice and min­is­te­r­ial atti­tude to the spousal veto, dou­bly so. And so 151 cou­ples have been forced to go through that tor­tur­ous process, and count­less many more to come, to sati­ate civil ser­vice homo­pho­bia and transphobia.

It’s not just the United King­dom in which mar­riage law and gen­der recog­ni­tion are so inter­twined. In Ohio, after In re Ladrach (1988), it is impos­si­ble to change your birth cer­tifi­cate, because of mar­riage law pro­hibit­ing same-sex mar­riages. In Ire­land, gen­der recog­ni­tion, as ordered by Foy v. An t-Ard Chláraitheoir (2007), argued under the Good­win prece­dent, has been stalled. In Aus­tralia, Re Kevin (2000), tak­ing cues from W v. W, holds sway. And so on.

And even away from dis­cus­sions of the law, as with many strug­gles for gay lib­er­a­tion, trans­gen­der peo­ple have been at the fore­front of them all. With­out Sylvia Riv­iera, the trans woman who “threw the sec­ond brick” at the Stonewall Inn, the fight for gay lib­er­a­tion and even female lib­er­a­tion would be more sub­dued and vastly dif­fer­ent. And really, it’s insult­ing that, as his­tory pre­cedes it, the trans com­mu­nity are shut out of the gen­tri­fied gay lib­er­a­tion scene because the fights are about sex­ual ori­en­ta­tion, not gen­der iden­tity. The two are closer than they think, and may be inescapable.

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