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.

Leave a Reply