On 16th July 2013, the House of Commons voted the Marriage (Same Sex Couples) Bill across its final hurdle and it gained royal assent the following day. This should be a cause of great rejoicing in LGBT circles, but it has been decried because of what many trans activists and their allies have termed the spousal veto. This is the requirement for a trans person seeking a full Gender Recognition Certificate (GRC) to have their spouse’s consent before it can be issued. That full GRC is necessary for the transsexual in question to obtain a new birth certificate and to be considered legally their identified gender for (almost) all legal purposes. Initially, the bill stated that the lack of spousal consent would prevent the GRC being applied for if the trans person was married. That was amended in the House of Lords to spousal consent being required for the marriage to continue after a full GRC was issued. This means that the trans person can obtain an interim GRC, which cannot be used to change their legal status, but can be used to speed up the process of gaining a full one. The current purpose of an interim GRC is to instigate a divorce or dissolution of a civil partnership because under the present (soon to change) law such a divorce/dissolution is necessary in order to gain a full GRC. The Labour Party is promising to try to remove the spousal veto in post-legislative debate, but I think that they need to pause to consider the impact of that. The spousal veto is there to try to square a circle, namely how to balance the rights of the trans and non-trans members of a marriage, but it does not apply to civil partnerships as they remain same-sex only, so a civil partnership would have to be dissolved (or turned into a same-sex marriage) before an opposite sex marriage could be entered into. A square circle is not an easy concept to grab hold of, so I will try to explore some of the angles of this geometrically challenged beast.
Changes to the Gender Recognition Act
The concerns about the spousal veto could hide the fact that the Marriage (Same Sex Couples) Bill has achieved a major victory for trans people in a pre-existing (heterosexual) marriage. It removes the necessity for heterosexual couples to divorce, which has been the situation since the Gender Recognition Act came into force, because marriage cannot (yet) be between people of the same-sex. The change can be made because the legislation for same-sex marriages removes that anomaly, but the spousal veto has been added in to allow a spouse to veto the granting of a full GRC, in order to prevent them becoming a member of a same-sex marriage without their permission. For many people seeking to maintain a marriage, this bill has been a resounding success, as the trans person has chosen not to apply for a GRC in order to preserve the marriage. There is a concern, however, that this spousal veto will allow a bitter spouse to delay full gender recognition by delaying divorce proceedings. That concern should not, however, lead to the cries on social media that this bill discriminates against trans people, nor is Baroness Gould of the Labour Party correct to assert that the trans community is angry. Some are angry, but many are delighted because they can now preserve marriages and gain a full GRC.
Helen Belcher, of Trans Media Watch fame, has posted on her personal blog that the government is enacting protection that spouses have not asked for, although without evidence provided as to how she knows this. Even if she has conducted a survey on all present spouses of transsexuals this self-proclaimed “potential politician” is showing that she needs to work on that potential. Laws are not passed on the basis of where people are at now, but trying to take into consideration all possible scenarios in the future, and leaving the difficult cases for courts to resolve. There is the possibility, indeed likelihood, that there are already spouses seeking that protection, and will be in future. In a previous entry into this debate Helen argues that in order to obtain the GRC the trans person would have to live for two years in their new gender presentation, so it is hardly a surprise to the spouse. It may not be a surprise, but it does not negate the fact that a small number of spouses may be happy to continue the marriage, but not if it becomes a same-sex one. Certainly, it is likely that those with objections would have left before this and most who had stayed the course would find becoming legally a same-sex marriage a mere legal technicality that the neighbours need never know about. Yet there may be some who identify so strongly as heterosexual that while they are happy for the marriage to continue, they do not want to be legally defined as in a same-sex relationship. This might particularly effect those who have maintained marriages without the trans partner changing their legal gender due to the current requirement to divorce. The non-trans spouse might have become very settled in that situation, and may have particular difficulties with it being changed. I consider that this is an entirely reasonable factor to put into law, especially when its actual ramifications are thought through.
If a transsexual obtains an interim GRC and cannot obtain the spouse’s consent to continue the marriage then there are two options, either to let the interim GRC lapse after 6 months, or to use it to instigate divorce proceedings. In other words, those who cannot obtain spousal consent will be in exactly the same situation as all transsexuals in a pre-existing marriage at present, where an interim GRC either lapses or is used to instigate a divorce or dissolution of a civil partnership. If the spousal veto is not enacted into law then the situation would be much messier. The transsexual would be able to legally change gender and change the marriage to a same-sex one without their spouse’s permission. The spouse would then be left to apply for a contested divorce on grounds of unreasonable behaviour. I think that the proposed law in which the interim GRC is used to instigate the divorce is far preferable. The concern has been raised of a bitter spouse dragging out divorce proceedings in order to prevent gender recognition being obtained. I think that this is a highly unlikely scenario, as a bitter spouse is generally much more concerned with getting the best settlement from the divorce, not postponing the settlement out of spite.
The lack of spousal consent would require a divorce and sometimes those court cases can last for years, but generally not as long as the 10 years that couples who have waited for the legal right for the transsexual partner to change legal gender without ending the marriage. Yet even among those not seeking to preserve marriages, there has not been a universal take-up of GRCs. Not all those who are eligible for a GRC have applied for them, as there is nothing compulsory about obtaining one and many do not bother – I have not applied for one, but I might do so in the future. The fact that not all transsexuals chose to obtain a GRC lessens the claims that the spousal veto allows one partner to a marriage to (temporarily) deny the transsexual partner their human rights. One reason that GRC take-up has been low is that it is a lot of work (and expense if on a low income) to gain what are quite limited rights, especially for those of us young enough to look forward to equalised pension ages. Even in terms of which prison you are placed in the possession of a GRC is superfluous for a transsexual who has had genital reconstruction surgery, as the justice system will send a post-operative transsexual without a GRC to the prison appropriate to their genital status.
The spousal veto is trying to square a circle caused by conflicting rights of a transsexual and their spouse. This square circle will only be evident in very rare circumstances as a non-consenting spouse is likely to mean that the marriage is heading for divorce anyway. I consider then the bill is going to enact a good law to allow for a bad situation and that removing the spousal veto would gain little in creating a bad law that did not balance the two individuals’ rights.
© Mercia McMahon 2013
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