How Do You Spell LGBT, Again?

Last week, England and Wales became the sixteenth and seventeenth countries to legalise marriage equality. There’s the good news for all you English and Welsh LGB people; now everyone can marry if they want! So what could possibly be the problem? This bill is what everyone has been waiting for, right?

Well, not quite for everyone. For those interested, the original bill - before any amendments, as unfortunately the official Act has not yet been published - can be found here, and this is the official parliamentary page where you can see all the relevant documentation.

There’s that one part of the spectrum that (seemingly) a large proportion of both straight allies of the bill and LGB supporters of the bill seemed to forget when campaigning. All the parts of the bill I'm referencing can be found in the part titled “Change of gender of married persons or civil partners" in Section 5 and it starts on page 35 of the original bill. As far as I know there haven’t been any major changes to this part of the bill, so this copy should be valid.

Previously in UK law, if a spouse (whether they were in a marriage or a civil partnership) needed a gender recognition certificate (GRC) then they would have to dissolve the marriage or partnership, even if they and their partner did not want to. In the new legislation it is possible for a married person to be issued with a gender recognition certificate (but bear in mind that this bill only affects England and Wales - couples in Scotland and Northern Ireland still have to follow the old law until those countries produce and vote on their own legislation). 

Here’s where the bill starts to show a few problems. Firstly, this section of the bill only applies to those in “protected" marriages or civil partnerships - that is, those that were registered in a place that will now allow same-sex marriages. Basically any trans* person who was married by the Church of England or the Church of Wales (the largest religious establishments in their respective countries), as well as any other establishment that opts out, cannot remain married to receive their GRC - instead it remains like the old legal system where they receive an Intermediate Gender Recognition Certificate which can then be used as grounds for a divorce or annulment.

Secondly, as opposite-sex civil partnerships are not legal under this legislation then it is not possible for a trans* spouse in a civil partnership to get a GRC unless they apply to transfer their civil partnership to a civil marriage. For various reasons they may not want to do this.

Thirdly, and this is the one that a lot of people feel is most important: the bill states that if the person is married at the time of application then the marriage cannot continue unless the couple can provide either:

• a statutory declaration of consent by the applicant’s spouse (if the spouse has made such a declaration), or
• a statutory declaration by the applicant that the applicant’s spouse has not made a statutory declaration of consent (if that is the case).

Essentially, for the marriage to continue, the other spouse has to consent. However, a few people have seen these lines and pointed out that, if the person wanting a GRC did not have the consent of their spouse, then they may be prevented from transitioning. This case may occur if their partner is abusive, or if the partner wants to interfere with their transition, or even if they are separated and it is not possible to reasonably obtain consent.

On line 20 of page 36 the bill states that if the spouse does not consent to the marriage continuing, then an Interim Gender Recognition Certificate will be issued, rather than a Full Gender Recognition Certificate. The dissenting spouse has no say in whether an IGRC is issued, only whether (by their consent or non-consent to continuing the marriage) a full GRC is issued. An IGRC can then be used as grounds for the annulment of the marriage. After the marriage is annulled then a full GRC is issued. Obviously it’s far from a perfect system; it can delay a full gender recognition certificate considerably, and if the trans* spouse does not want to leave their partner or their partner forces them to stay then that causes problems as well. 

This bill allowed UK trans* people to legally change
their gender (S)

But that’s just the start. Not only can spouses of pre-transitioned trans* people block them receiving a full GRC (which, by the way, requires the person applying to be living as their true gender for a period of two years or more, implying that the spouse may already know), but a spouse who marries a post-transitioned trans* person can, under old legislation that this bill has not altered, claim that they weren’t aware that their partner is trans* and use that as a reason for a divorce. Incredible, right? At least the larger LGBT charities tried really hard to convince the bill writers to give equal representation to couples involving one or more trans* partners, right? Right?

Well, not entirely. You see, while huge LGB charities like Stonewall focused their efforts and fundraising on blocking various “wrecking amendments” (I’d tell you exactly what those were, but Stonewall seems to be under the impression that they’re not allowed to say, and simply repeatedly states that they were tabled by “opponents of equality”), the task of protecting trans* people’s rights in the bill was left to smaller charities and focus groups. Now, I know that Stonewall actively states that they "do not lobby or advise on trans issues", but at least a mention of the problems for trans* people in the bill may have been nice - Stonewall's huge following and resources pool maybe could have been better used than their actual actions: challenging that most "controversial" amendment of... opposite-sex civil partnerships!

No, I'm being quite serious. Using Stonewall's commentary of the bill's progress here and some detective work, I matched up the "wrecking amendment" defeated on the first day of the third reading in the Commons to Tim Loughton MP's amendment for a consultation on opposite-sex civil unions - something that would have been fairer but would have slowed the bill's progress to a crawl. Now obviously it's fishy that this was put forward by a vocal opponent of the original bill, but Stonewall invested an awful lot of time in stopping it. Maybe next time we'll see them spare a thought for more in the spectrum than just LGB, perhaps?

Then there's the survivors benefits (which also affect same-sex couples in civil partnerships). Widows or widowers in civil partnerships receive less survivor's benefits than those who are married - it's an annoying and confusing legal maze that this bill hasn't exactly fixed, but it's based on the decision to only backdate survivors benefits to accrual from 2005 (a more detailed explanation can be found here in this article about potential lawsuits about this rule). However, same-sex trans* couples who were forced to dissolve their marriage and enter a civil partnership before this legislation passed receive survivors benefits for people in civil partnerships rather than marriages, and apparently will not be compensated for the loss, even though they were forced to change from a marriage. It's just another little loophole that seems to have been glossed over.

Most MPs said that they had wrote the amendments and legislation as if they were "spouses of trans* people". I think they should have gone one better. I think they should have written it as if they themselves were trans*. It might just have made the bill a bit more fair to trans* English and Welsh citizens.