The Devil in the Details: Reading the Marriage (Same Sex Couples) Bill

I would like to thank Sarah Brown, Jae Kay, and Zoe O’Connell for their analyses of the bill so far; I’ve had some time to read the bill over the past 36 hours and I’ve got my own comments.

Were I to grade the legislation, I’d give it 6/10, could do better. In the abstract, it’s a good bill, in so much as two people of the same gender will be able to marry. However, there are some seams in which the concept of equal marriage start to fray.

What’s Not In

As marriage is a devolved issue, the legislation, for the most part, only affects England and Wales. Interestingly, though, the explanatory notes confirm that a Sewel Motion will be needed to be passed by Holyrood to consent to Westminster legislating for them anyway. I’m unsure why the idea of a Sewel Motion for the entire bill wasn’t discussed, especially as the Scottish Government too want to allow same-gender couples to marry.

Most controversially for Sarah and Zoe, the bill makes no mention of marriages annulled under the Gender Recognition Act 2004. It’s probably a kick in the teeth to Sarah, who has been fighting for the past four years to get the marriage she had confiscated back.

Neither does the legislation speak about opposite-sex civil partnerships. Again, this is disappointing, not only from a sexual equality perspective, as it still segregates relationships on the gender of its partners, but from a transgender perspective, as forced divorce will still exist for straight couples where one partner still hasn’t transitioned.

As Jae mentions, there is no mention of equality of pension rights. Where the Civil Partnership Act and Equality Act had problems is that companies were given an exemption to offering spousal benefits to civil partnered couples. This was found to be discriminatory a few months ago. From a reading, I imagine that spousal benefits will be automatically applied to same-gender marriages, but still, it’s problematic that the discriminatory language wasn’t statutorily fixed in a bill that gave it a perfect opportunity too.

Finally, although it’s of little legal consequence as the law only recognizes two genders, there is no accommodation for non-binary people. If I were writing the bill, I would be modifying all gendered language to marriage legislation to give accommodation and make it truly equal marriage, but I’m not.

What Is In

And, on the other hand, there are some part of the bill that deserve comment:

  • Section 2(2): this is part of the infamous “quadruple lock” and the gives anyone who’s not in an excepted profession – a list which includes registrars – the right to not work on a same-sex marriage. This is something aimed at people working in religious premises or marriages under religious rites but could also apply to people such as caterers and hoteliers. Whether this would survive judicial scrutiny is to be determined, but my gut feeling is “no”. It also prevents religious orders from insisting that its ordinates carry out a same-sex marriage if it is a fundamental tenet of their religion.
  • Section 9(7): As Zoe points out, this clause explicitly allows couples to be retroactively married from the point of their civil union. One could hope that this could allow an amendment in which marriages annulled under the Gender Recognition Act are restored.
  • Section 11: In English and Welsh law notwithstanding provisions of this bill, marriages are equal.
  • Schedule 2: If by an unlikely chance that marriage is equalised in Scotland, then this provides a failsafe for married same-gender couples who move around the country. It also provides a fail safe for people in Northern Ireland, where marriage is unlikely to be equalised. I’m unsure if such a situation could persist – my understanding is that Gretna marriages were recognised in England. The schedule also explicitly ensures that overseas marriages will be recognised as marriages.
  • Schedule 3, Section 3: This states that if any legislation differentiates between common-law marriages and “common-law civil partnerships”, then unregistered cohabitations between two people of the same gender will be seen as a civil partnership.
  • Schedule 4, Section 2: The common-law presumption that the spouse of a mother is a child’s second parent does not apply if said spouse is also a woman. Parentage will then have to be dealt with under the terms of the Human Fertilisation and Embryology Act 2008.
  • Schedule 4, Sections 3 and 4: This defines adultery as “sex with a member of the opposite gender”, and worryingly, it may lead to the fact that one partner being unfaithful to the other is not grounds for divorce. It also removes non-consummation as grounds for annulment if the marriage is between two people of the same gender.
  • Schedule 5: From a trans perspective, this is a deeply troubling. As Sarah says, this introduces the spousal veto: in the not-unrealistic scenario of estrangement due to transition, under Section 3, the Gender Recognition Act 2004 is amended an angry spouse can block their partner’s receipt of a Gender Recognition Certificate until the divorce papers are served, and delay a person’s legal transition out of spite. Section 9 allows marriages to continue while gaining a GRC. Section 11 still enacts forced divorce if civil partners don’t want a marriage. Nothing, unfortunately, retroactively restores forced divorces.

Some of these aspects, especially in Schedules 4 and 5 are incredibly problematic. I do hope that the Labour and Liberal Democrat MPs in scrutiny committee and the House try to amend these away, because they detract from it being an equal marriage bill. But on the same hand, if it was between this bill passing unamended, and not passing at all, then it should definitely pass. Let’s not make perfect be the enemy of good, but instead make the bill more perfect.

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