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,
(c) 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.