Marriage has long been the locus for major issues for Trans folk. Despite some improvement over the last few years, there remain significant aspects of marriage where trans people are not treated equally by comparison with non-trans.
Divorce first! Treatment after
For a long time, a precondition of being treated for gender dysphoria in the UK was fitting a model devised by clinicians. That meant being capable of sliding into a community in one’s “new” trans identity and living thereafter “in stealth”.
That approach led to a number of filters applied to people seeking treatment. For trans women, especially, “fitting in” meant adopting stereotypical (according to clinicians) modes of dress and behaviour. This requirement, not of their own making, has since frequently been used against trans people to claim that they endorse gender stereotypes.
Individuals were required also to be of an appropriate physical build, making gender dysphoria almost unique within the NHS as a condition where treatment might be with-held if an individual was “too tall”.
And it had disastrous consequences for marriages. On the one hand, the courts – from Ashley through to KB – refused to endorse trans marriage according to the gender by which the trans person identified. On the other, in many, many cases, the medical profession required a trans individual to renounce any existing marriage as a condition of treatment.
In other words, a trans woman could not marry a cis man because it would be unlawful. But for the duration of any treatment within the NHS, which could continue for several years, they were not allowed to be married to a cis woman. And vice-versa for trans guys.
This approach continued well into the 90s.
The enactment of the Gender Recognition Act in 2004 created another issue for trans people. On the one hand, the possibility of changing legal gender now fixed cases such as that of KB v NHS Trust Pension Agency, where a trans guy was unable to benefit from the pension rights accrued by his cis female partner, because both individuals were regarded as legally female and unable to marry. (qv.)
However, the ability to change gender in this way created meant that individuals doing this who were already married would automatically created a same-sex marriage which, back in 2004, was not allowed.
It was also not possible, at the point when the Gender Recognition Act first passed, to undertake a civil partnership. The options available to trans folk were therefore:
- stay married – and remain unable to obtain legal recognition of your gender;
- divorce – and lose benefits that might accrue between partners by virtue of being married.
This situation changed twice in subsequent years. In 2004, Parliament passed the Civil Partnership Act. This came into force on 5 December 2005 throughout the United Kingdom, creating a short gap of approximately six months between trans individuals obtaining the right to amend their legal gender (5 April 2005) and the ability to form a same sex union.
In that period, trans people faced a stark choice: stay married and keep your birth gender, or change gender and divorce.
A mechanism for achieving the latter was put in place by an amendment to the Matrimonial Causes Act 1973 (s.12). This allowed a trans person to apply to a Gender Recognition Panel for an interim gender recognition certificate (grc), which was now specifically cited in statute as valid reason for voiding a marriage (in England and Wales, or obtaining a no-fault divorce in Scotland).
The interim grc provided no legal rights in respect of gender: it was simply a device created for the purposes of getting a divorce prior to obtaining a full grc.
Couples who wanted to convert from marriage to civil partnership (after that specific legal relationship had been established by parliament in 2005) had to annul their marriage first before contracting the new partnership. In theory, the government suggested, it should be possible for that conversion to take place in a day, though we have heard differing reports on how this worked in practice.
A number of trans people who attempted this “seamless conversion” in the early days after the legislation on Same Sex marriage was enacted, report significant chaos within the various departments that needed to co-ordinate to make it happen and suggest a minimum two week gap was required.
Those who have done so more recently report that it is indeed possible to effect the conversion in a day: although with further changes to marriage legislation, this is less and less a necessity.
Same Sex marriage: rights backdated for the cis; trans marriages “stolen”
In 2013, the UK government bowed to public pressure and made same sex marriage legal in England and Wales through the Marriage (Same Sex Couples) Act. Similar provisions were passed into law in Scotland in 2014 by the Marriage and Civil Partnerships (Scotland) Act.
One important provision of this Act was that it now allowed (s9) for the direct conversion of a Civil Partnership to a Marriage: and where such a conversion took place”the resulting marriage is to be treated as having subsisted since the date the civil partnership was formed”.
This is important in respect of a number of in-work and state benefits, because it means that a couple who married in 2013 after previously entering into a Same-Sex Partnership in 2005 would already have accrued 8 years of entitlements.
This entitlement applied equally to trans and non-trans individuals. However, government would not allow trans people who had been required to convert their marriages to civil partnerships in order to obtain a grc to backdate their new marriage to the date of the original marriage.
These “stolen marriages” remain a source of resentment within the trans community. They are few and far between, and the total benefits accruing to individuals from those added years is unlikely to put any burden on government expenditure.
There is little understanding of why the government took this road. According to one trans campaigner who spoke to Government officials about this issue they “didn’t want to rewrite history regarding court proceedings”.
This contrasts with their readiness to rewrite history with the register office for both civil partnerships to marriage, and birth certificates: as far as we are aware, they have never satisfactorily explained why this is different.
Amendments were presented, at committee stage, and in the House of Lords, to try and restore the stolen marriages. The government asked for both to be rejected, and both were.
The cis veto
This is the presumption that being trans – or at least, being trans with a gender recognition certificate might cause a spouse sufficient alarm and distress as to be valid grounds for termination of an existing marriage. Therefore the law has evolved to permit two possible outcomes:
- an individual may divorce their partner if they discover they are trans
- an individual may block their partner’s ability to obtain a grc if they dislike the idea of being married to someone of the same (or different) gender
Divorce for being trans
This arises through the Matrimonial Causes Act 1973, Clause 12(h), which allows the annulment of a marriage where someone discovers their spouse has a grc, but failed to tell them beforehand.
This states that a marriage may be voided if “the respondent is a person whose gender at the time of the marriage had become the acquired gender under the Gender Recognition Act 2004”
The clause would only apply to those who have a grc – creating a further disincentive to individuals thinking of applying for one.
This principle, that possession of a grc may be a matter of such grave import that it can be grounds for annulment was extended in the passage of the Same Sex Marriage Act to providing the spouse of a person intending to obtain a grc with an effective veto over them doing so. Under Schedule 5 of the Marriage (Same Sex Couples) Act 2013, a provision was inserted into the Gender Recognition Act such that a married person applying for a grc must now provide
“a statutory declaration by the applicant’s spouse that the spouse consents to the marriage continuing after the issue of a full gender recognition certificate”
While a number of politicians have attempted to argue that this is not a veto, there seems to be little sense in which it is not. Possession of a grc is already regarded as grounds for an annulment: if an individual would be unhappy with a partner with a grc, then the option to divorce them already exists.
This approach, however, turns the tables. It requires the trans individual to seek approval from their spouse and, failing that approval – which could be withheld for a range of reasons, from estrangement, to being locked into an abusive or controlling relationship – they cannot obtain a grc.
Problems with the cis veto
There are several obvious issues associated with this cis veto:
- it is homophobic in nature. When arguing for same sex marriage, the message from government was that there would henceforth “no difference” in law between same sex and opposite sex marriage. Enshrining in law the principle that some individuals might so object to a same sex marriage that they should have the right to prevent finding themselves in one sends a very different message: that indeed, there is difference and for some people same sex marriage would be problematic;
- it is transphobic: the law already allows for annulment of a marriage where an individual possesses a grc; and transition has been successfully argued, in divorce, as an irreconcilable difference. This measure both entrenches the transphobia, and erects a further barrier to individuals wishing to obtain a grc
- such a veto is otherwise almost unique in UK law. It does not stop an individual from obtaining a grc: if they are set on doing so, then they are able to divorce a spouse who attempts to prevent this, and it is likely that a court would accept refusal to give the go-ahead as grounds for divorce. However, it places the burden of such action firmly on the trans individual seeking to obtain a grc, placing them firmly in the position of supplicant.
- when proposing to add this provision to the Gender Recognition Act, the government – or more precisely, civil servants – claimed that they had not researched the need for such a measure, but following a brainstorming session they had determined that spouses were likely to want it. By contrast, a survey of spouses of trans individuals – small-scale, but rather more scientific than civil service brainstorming – revealed an almost universal rejection of this proposal.
There are currently moves afoot in Scotland to amend the law in such a way as to remove the veto.
Go back to Trans and the Law