Joyce Gould on why the Married Couples Bill has not quite resolved matters affecting the transgender community
The Same Sex Marriage Bill has provided a real opportunity to clarify issues around marriage that affect transgender people.
On the plus side, the Bill does remove two current anomalies. First, it provides for married transgender people who wish to apply for recognition by scrapping the requirement for them to be single at the point of gender recognition, thereby removing the obligation to dissolve their existing marriage or civil partnership. Second, it makes a concession on spouse’s survivor pensions and ensures that no ongoing financial penalty will be incurred should a transperson in an existing marriage gain gender recognition.
The government has also responded to the request for an amended fast track procedure. As a result, people in a marriage at the time the Bill is enacted who transitioned six years or more beforehand can take advantage of the reduced documentation requirements.
An amendment however to the Gender Recognition Act 2004 has created an analogous position that has caused great concern amongst the trans community, bringing about a discriminatory and unfair situation. In essence, the government is removing the requirement for an application to have dissolved any existing marriage, but allowing the transperson’s maybe hostile spouse to grant consent for the gender recognition.
Ministers deny this is a block, as consent to the marriage continues as a same sex marriage after recognition. But the possibility to say ‘no’ clearly provides a veto. And it takes no account of the many events that can fundamentally alter a marriage, be it about children, employment issues or finance – none of which require spousal consent.
Indeed, a person who is transitioning can have surgery and change their name but cannot have a gender recognition certificate without spousal approval. There is no other area of law where such a position applies. It seems ludicrous that a Bill designed to allow same sex marriage is maintaining difference between types of marriage.
An attempt to amend the words in the Bill failed but not after vigorous attempts by myself and other Peers to persuade Ministers they had got it wrong. The amendment had been carefully crafted to satisfy some of the government’s concerns about the objections, by allowing the spouse to delay the granting of an applicant’s full gender recognition by six months.
So while it is limited timewise, the veto remains until the Court has agreed the divorce settlement – something that might take many years. Why at the end of the two years it takes to transgender, should this hurdle have to be overcome? And why create another flashpoint for what might already be an acrimonious divorce?
The government has since clarified the position of married couples – the aim being to allow as many of them as possible to remain married (if they want to). But it has made no concession in respect of consent, and makes no difference to the transperson involved. It doesn’t really matter if the spouse is giving consent for the marriage to continue or for gender recognition.
This is almost certainly the unfinished business of this Bill. There is no doubt that the trans community are still very angry and concerned about what they regard as spousal veto, and there is every chance we will return to the issue at some point in the future. Nevertheless, I will seek an assurance from Ministers today that this issue will be part of the post-legislative scrutiny which will take place once the Bill has been enacted.
Baroness Joyce Gould of Potternewton is a backbench Labour Peer
Published 10th July 2013
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