To tidy up a few loose ends, now that the Marriage (Same-Sex Couples) Act 2013 is an Act and not merely a Bill, here is a summary of its effects on the trans community.

None of this takes effect until the necessary procedures are put in place and the Secretary of State gives it the green light to go ahead – that’s not currently expected to happen for at least a year. As things stand, the first same-sex marriages will happen before the trans-related provisions are put into effect. It is also possible that procedures in practice will differ slightly from what’s intended from the legislation for practical or other reasons. We saw this happen with the Gender Recognition Act 2003.

Applying for a Gender Recognition Certificate

If you are applying for a Gender Recognition Certificate and you…

• Transitioned after 2008 & are not married or civil partnered then there is no change.
• Transitioned before 2008 & are married at the time of application, then you may be able to use the “Fast Track” procedure. The date is set at 6 years prior to the commencement of the relevant section and we don’t know when it will come into force yet, so it may end up being a cutoff date in 2009 if commencement doesn’t happen until 2015. The caveats for this are:
  • Your marital status at the time of transition makes no difference. If you transitioned a decade ago but didn’t get a GRC because you were married but have subsequently been widowed, you can not use the Fast Track process. Conversely, you do not need to have been married at the time of transition and could get married for the sole purpose of obtaining a Fast Track GRC
  • You must be “ordinarily resident” in Great Britain, i.e. excluding Northern Ireland. This appears to have been put in place to avoid complications with Northern Ireland but unfortunately rules out anyone born in this country and living abroad.
  • “Fast Track” isn’t any faster from the Gender Recognition Panel’s point of view, it is a reduced documentary requirement – evidence of surgery or a diagnosis of gender dysphoria. I do not know if anyone tried this under the old Fast Track system when the GRA2003 first came into force, but it would appear that the surgery does not need to have been as an adult. This potentially allows someone with an intersex condition who is married to obtain Gender Recognition, something they were previously unable to do due to the lack of a diagnosis of gender dysphoria.
  • The spousal veto still applies to fast track applications, regardless of how long you have been transitioned for.
• Are married at the time of application, then you can apply for Gender Recognition and remain married. Recognition would be subject to the Spousal Veto. If the spouse does not consent, then the old process applies which can take some time and is more expensive – apply for an Interim Gender Recognition Certificate, initiate annulment proceedings and hope your spouse isn’t looking to drag things out.

  Interim GRCs do not grant any rights beyond the ability to apply for annulment of a marriage. It is likely quicker to apply for a normal divorce as that can be done without needing to wait to become eligible for a GRC. The intent of the Interim Gender Recognition Certificate was largely to allow couples to remain together after transition, as you cannot apply for a normal divorce if still living together.

• Are civil partnered then you need to convert your civil partnership to a marriage first, then apply for gender recognition as above. If you do not wish to convert to a marriage and remain together as a couple the only option is the Interim Gender Recognition Certificate and annul the Civil Partnership.

  This is a consequence of mixed-sex civil partnerships being unavailable.

After obtaining Gender Recognition

• If you gave up your marriage and potentially pension rights under the old system by getting an Interim Gender Recognition Certificate and annulling the existing marriage/CP and were re-married/CPed, there is no mechanism for restoring that relationship or pensions.
• The situation for a wife of a trans woman (And only in that specific combination) is improved in the case where the trans person dies first and the wife is left with a survivors pension.
• Sections 12(h) of the Matrimonial Causes Act 1973 and the civil partnership equivalent, section 50(e) of the Civil Partnership Act 2004 remain in force – if you acquired gender recognition prior to getting married/civil partnered and your partner claims they did not know this, they may be able to get the marriage or civil partnership voided.
• The wording to be used in marriage ceremonies abd on marriage and birth certificates is, at this moment, unchanged. There is likely to be some further work in this area with post-enactment secondary legislation.

The below was sent to the BBC today at 23:18. It will be interesting to see how long it takes them to fix the article – or if they even bother, given they don’t usually cover trans issues at all. (I count exactly one direct reference since the start of June – the Cory Mathis bathroom case in the US. The remainder are references in passing, generally as part of defining what “LGBT” means and discussing pride events.

It seems you’re more likely to get referred to on BBC News for being a cis person making boots in large sizes or being a cis person getting an MBE for volunteering to help trans people than you are if you’re actually trans and campaigning on something. (The first story does mention a trans person in passing. It old-names them and uses some problematic and transphobic language presumably due to missing context in their quoting)

Dear BBC,

I am writing in relation to the article “Same-sex marriage set to enter law later this week” posted today on BBC News Online. It says:

“MPs decided not oppose a number of minor changes agreed by the House of Lords. Among these were protections for transgender couples, which will allow people to change sex and remain married.”

Ignoring the misleading statement about “opposing minor changes” (They were mostly, if not entirely, government amendments in the first place) the mention of amendments for transgender couples is incorrect. The provision to allow people to gain recognition of their gender whilst staying married, subject to a spousal veto, was part of the original bill. The Lords amendments altered the wording used to define the spousal veto and reintroduced a simplified version of gender recognition for those who transitioned many years ago.

The amendments would not allow anyone to gain gender recognition and remain married who would otherwise have been unable to do so.

Regards,

Zoe O’Connell

The latest round of amendments to the Lords report stage of the bill are out, including government amendments which are almost certain to pass. There is nothing on the spousal veto yet which is not a good sign.

What has been included is reintroduction of the old Gender Recognition “Fast Track” process. As originally enacted back in 2004, this allowed people who had transitioned for a long time (6 years) an easier route to getting recognition. Rather than needing two reports from doctors, you only need one – either a diagnosis of gender dysphoria or evidence that you’ve had surgery to alter “sexual characteristics”. It was particularly important to those who transitioned many years prior but whose doctors were no longer practicing, meaning they could not get proper medical reports. It was however time-limited to applications for two years following the passage of the bill.

The gotcha with the reintroduced version is that you have to be married to take advantage of this. It doesn’t matter when you get married, so you could get married specifically for the purpose of getting Gender Recognition, as long as you transitioned six years ago. I can actually see this happening in some cases, it’s not just theoretical, as people get married for immigration reasons already.

If your partner has died before the bill passes or your marriage survived transition but you divorced later for other reasons you’re also out of luck and would have to use the standard process. Unless you remarry.

One could argue that this is actually incompatible with the Human Rights Act as it discriminates against single, divorced and widowed people, but I don’t know if such a claim would stand up in court. If anyone has about quarter of a million pounds to spare and wants a fast-track GRC, you could probably find out by taking this all the way to the European Court of Human Rights.

The six years requirement for a fast-track GRC is also bizarre. Firstly, it’s not six years full time, it’s six years full time prior to the passage of the act. So if you’re currently five and a half years post-transition you may be out of luck.

Secondly, and this is the most objectionable part, the spousal veto is explicitly included. So you can have married someone and stayed with them for six years post-transition or even married/civil partnered them after they transitioned, and the government is still asking you for permission for them to get legal recognition.

Whatever the actual intent, that just comes across as a deliberate attempt to be spiteful by the government.

It seems that the civil service spends much of it’s time trying to figure out ways of limiting any rights granted to trans folk as much as possible. The law in this country would be in a much better state if it spent that effort working towards equality instead.

Looking at the specific requirements, the reintroduced version is broadly similar to the original. The surgical requirement as an alternative to a diagnosis of gender dysphoria is somewhat genital essentialist and a concern for those who can’t undergo surgery for medical reasons or would prefer not to, but in line with how thinking was a decade ago. If six years full time on it’s own isn’t enough to convince the government you are serious about your gender, I don’t know what is!

On the flip side, this is possibly good news for some of those with intersex conditions, given no diagnosis of gender dysphoria is needed and the nature, timing or consent as to surgery isn’t specified. I do not know if the Gender Recognition Panel was ever asked to consider such a case under the old fast-track rules, so I can’t guess if they’d grant such recognition but the law suggests they should – it states the panel “must grant the application” if they are happy the applicant has “undergone surgical treatment for the purpose of “modifying sexual characteristics”.

PS As a reminder, you can write to Baroness Stowell in support of ending the Spousal Veto. The Coalition for Equal Marriage have also produced this handy form you can use to register your views.