LGB, trans and marriage things that are now LibDem policy

Equalities Speech

For the last year I’ve had the good fortune to be able to serve as a member of the Liberal Democrat Equality Policy Working Group, and yesterday conference accepted the motion that came out of that, making it official party policy.

Equalities SpeechThere is lots of good stuff in there, but I did want to highlight the LGBT and marriage sections in particular. We heard much evidence from other groups too, and some of the awful statistics relating to education and stop-and-search for young Afro-Caribbean men in particular stick in my mind – but others deserve the credit for campaigning on those areas, so I’ll let them talk about them.

Remember, these are now official party policy. They are not just policy of the LGBT group or aspirational aims of a subgroup. Actual official party policy. (Some of these items were already party policy, but were restated in the policy document for clarity)

LGB and LGBT issues

  • Review the Blood Ban. We’re currently in the ridiculous situation where a man who has sex with other men, even safe sex, is banned from giving blood for 12 months. However, it doesn’t matter how many unsafe sexual relationships anyone else has as they can still give blood. Even more confusingly, if you are a woman married to (And having sex with) a bisexual man who has ever had sex with another man, you can not give blood ever. Even if your husband can.
  • An evidence-based approach to tackling *phobic bullying in schools. There is an evidence-gathering programme, started by LibDem Equalities Minister Jo Swinson MP, that will report back on how we can bet do this.
  • …mainstream discourses should consider more authentic ‘inclusive sexualities’ in advertising, media, and sport to help break down prejudice. and more specifically later on positive images of transgender individuals in central government publications. Hopefully self-explanatory!

Trans issues

  • ‘X’ (Unspecified) gender markers on passports. A big benefit for the non-binary community if we can make it a reality, but this is good for all trans and intersex people and society in general. There is no particular reason the state needs to concern itself with gender in the vasy majority of situations, especially when it comes to official ID. For example, did you know about the very patriarchal approach of the DVLA, which includes titles on women’s driving licenses but not men’s?
  • Ending the Spousal Veto. If you don’t know what the Spousal Veto is, Sarah Brown has an excellent primer here. In short, the veto was introduced by the Same-Sex Marriage Act and allows a partner to block legal gender recognition of a spouse who has transitioned and prevent them obtaining potection from employment discrimination, even after the two year wait required for the legal process.
  • Restoring stolen trans marriages. Under the pre-same-sex-marriage regime, even if a couple stayed together they were required to have their marriage annulled if one partner wanted to fully transition.
  • Removing the requirement for a diagnosis of gender dysphoria in order to obtain legal gender recognition. This would further reduce unwelcome medical gatekeeping when it comes to people’s identities, and also fix the mess that intersex people find themselves in. Currently, if you have an intersex condition and potentially had your legal gender assigned arbitrarily by a doctor at birth, you are unable to obtain a diagnosis of gender dysphoria (It’s a different diagnosis) and thus can not obtain a Gender Recognition Certificate.

Non-LGBT marriage issues

  • Allow the Church of England to decide itself if it wants to carry out same-sex marriage. At the moment, the Church of England is prohibited by law from carrying out same-sex marriage, but with the way things are going I can well see that changing in the not too distant future.
  • Allow Non-religious (Humanist) marriage ceremonies. Already permitted in Scotland, we would like to see this introduced in the rest of the UK.
  • Include both parent’s names on marriage certificates. Current certificates only list the father, which is a very outdated patriarchal approach.

You can download the full policy paper, in .docx format, here.

Spousal Veto to remain?

According an article written by the Minister for Equalities today, the Spousal Veto seems set to remain in legislation in England and Wales:

From 10 December there is also good news for married transgender people. You will now be able to change your legal gender without ending your marriage, provided you and your husband or wife agree to remain married.

It is entirely possible that this not intended to be such an announcement but is simply sloppy and insensitive drafting by the Civil Service who should, if they are paying attention, be well aware of the coverage the spousal veto has been getting. The announcement today was partly a cover for the less positive news arising from the publication of the response to the consultation into civil partnerships. The Department of Culture, Media and Sport have decided that they are not going to legislate for mixed-sex civil partnerships – something that is bound to end up facing continued legal challenge.

Sadly, the technical paperwork underlying the announcements also fails to shed any light on the issue but the inclusion of the 10th December date means we at least know that the government must have decided for sure by that date, when the first conversions happen.

A number of people, myself included, have already contacted the Department of Culture, Media and Sport to ask for clarification.

Trans folk and marriage without a Gender Recognition Certificate

There has been some discussion both in my Inbox and on Twitter recently regarding the implications of the Same-Sex Marriage Act for Trans folk in England and Wales.

To try to clear things up, I have written the below (With my LGBT+ Liberal Democrats hat on, so it carries some weight) to the General Register Office. Their auto-reply promises a response within five working days, but I would imagine this one may take a little longer.

I am fairly confident of a positive reply in terms of all aspects of this with the exception of the wording to be used in a civil ceremony, which is less clear. (Although I have avoided phrasing the question below in such a way that it might unnecessarily provoke a negative response from the GRO) Sadly, non-binary folk are completely out of luck as the law requires use of either the word “husband” or “wife” in a civil ceremony. (Religious ceremonies can differ, the most notable example being that for the language used by Quakers is left up to them and is not dictated by legislation)

One issue was raised after I had sent this off, which is that buildings must be registered for same-sex marriage separately from registration of for mixed-sex marriage. Getting married without a GRC in an building which is inappropriately registered may cause problems further down the line – as to the nature of the problems people might face if the marriage collapsed, that’s one for the courts to sort out. I fear the answer would favor whoever can afford better lawyers which will often not be the trans person in the relationship. Updated 30/04: This statement was a misunderstanding on my part – you do not need to have a building registered separately for civil marriage, only for religious marriage.

Thanks to Jess Key for doing the digging around in the legislation on these last two points.

On contacting their local registry office, many people have been told that there is no requirement to specify legal gender when applying for a marriage license, (e.g. It is acceptable to apply with a passport rather than birth certificate) no requirement for legal gender to be revealed during the marriage ceremony and no requirement for legal gender to be revealed on the resulting marriage certificate.

This tallies with our understanding of the law and is a huge benefit to trans folk who have legally changed their name and live full time in their acquired gender but for whom it would not be desirable or would not be possible to change their legal gender. As well as the emotional impact of being incorrectly gendered on your wedding day, people in this position may have transitioned many years ago and fear “coming out” to friends, colleagues etc if their birth gender is listed on notices or referred to during the wedding ceremony.

Unfortunately, the advice given has been contradicted by DCMS who stated that marriage documents would all show birth gender for those not in possession of a Gender Recognition Certificate. At least some solicitors also seem to be unclear as to what the position is, in particular with the correct wording (husband or wife) to be used during the ceremony.

If you could clarify your understanding of the situation regarding this for people who do not hold a GRC, we would be grateful. Any references to official policy would also be useful.

The Other Spousal Veto

The other Sarah has dug out some revealing statistics from the Ministry of Justice.

The first statistic is interesting, but probably not that surprising for anyone involved in trans activism. There is a clause in the Gender Recognition Act 2004 that allows the Secretary of State to refer to the courts any case where they believe gender recognition might have been obtained fraudulently. Despite the fact that the Gender Recognition Panel (GRP) insist on documentary evidence that someone transitioned at least two years ago, that they provide letters from two doctors on the GRP’s list of approved doctors and up until now, that they divorce, there was still a fraud clause included in the act just in case.

No case has even made it as far as a referral to the courts due to fraud, which rather takes the wind out of the sails of anyone suggesting gender recognition is too easy to obtain, or that people do it because they want to commit fraud. (You can change your name without also changing your gender, anyway)

The second statistic is rather more worrying, however. Many people will know about the spousal veto included in the Same-Sex Marriage Act that allows spouses to de facto veto gender recognition of even an estranged partner. But there is an older spousal veto: Section 12(h) of the Matrimonial Causes Act, which was inserted by the Gender Recognition Act way back in 2004.

It was always thought that this clause, which allows someone to void their marriage if they find out their partner had obtained legal gender recognition prior to the marriage, was largely theoretical. There are some safeguards – there’s a time limit of three years after marriage to annul unless you get special permission from a judge, and it only applies if you didn’t know your spouse had a Gender Recognition Certificate. (This last point is a little tricky, because it’s hard for someone who is not out to prove they told their spouse something so it’s likely to descend into a case of he-said-she-said in court)

As with the spousal veto, this is just another case of the law feeling it needs to create special cases surrounding trans folk. But this is unnecessary – if trust in the marriage has broken down to that extent, why not resort to the usual divorce process – just as you would have to if your new husband or wife turned out to be a convicted criminal.

Unfortunately, it turns out not to be so theoretical after all. As a result of the Freedom of Information request, we now know that at least 13 marriages have been annulled because the spouse claimed not to have known their partner had a GRC. The reason is only recorded in 60% of cases, so the actual figure is higher – 21 or 22 cases in total, which is two or three cases a year.

So that’s yet another way in which trans folk have less rights in marriage than everyone else.

Equal marriage? I wish.

Another LGBT+ awards controversy: Pink News and Baroness Stowell

There does seem to be something about the LGb(t) community and awards, doesn’t there?

Pink News have played a blinder by giving their “parliamentarian of the year” award to Baroness Stowell. Yes, that’s the same Baroness Stowell that will cause hardened trans veterans of the same-sex marriage bill to wince when they hear her name, for it was her who gallantly defended the spousal veto as the bill passed through the House of Lords, shooting down every suggestion and compromise proposed on this and other trans-related topics.

It perhaps should not be too surprising that many people, both trans folk and allies, are somewhat miffed this morning at the news. At the time of writing, the only defence Pink News have put up is that it was an “independent panel of judges, although there would have been nothing to stop them shortlisting her in the first place…

(The award was shared with Yvette Cooper, although it is not clear what in particular Yvette Cooper was singled out for an award when there were many people on all sides of the house who engaged far more above and beyond)

The trouble with these awards is that it is often a small panel, with perhaps one trans person on. Unless you’re very careful picking that person then they’re unlikely to have the breath of knowledge to avoid obvious (To us) SNAFUs such as this one. In this case, a non-politician from the trans community was asked to vote on the award and didn’t have the background knowledge (And would not have been expected to!) to brief others accordingly.

The fix is to ensure proper representation of trans folk within ostensibly LGBT+ organisations, for when the nominations are initially put together and on panels. Given how much more politically active out trans folk are compared to the wider out community, it is not sufficient to have just one trans person on a panel of ten. (Around one third of the elected LGBT+LibDems executive is non-cis – I don’t know the figures for other parties) Even if you base a panel on population numbers, remember the huge numbers of not-out, non-transitioning or pre-transition trans folk – up to 1% of the UK population, with a wide enough definition.

Where “equal marriage” leaves trans folk

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.

Ranting at the BBC about factually inaccurate trans reporting

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

Fast-Track Gender Recognition is back (Sort of)

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.

Scottish “Equal” marriage and Trans issues… here we go again

The Scottish parliament has just released it’s own “Equal” Marriage Bill. (PDF Link)

The nature of devolved legislative powers is that there is much they can’t fix, such as reintroduction of the fast-track Gender Recognition Certificate (GRC) process. However, the things they could have fixed from the English and Welsh version… they haven’t.

Firstly, the spousal veto is still present, without time limit. (Schedule 2, paragraph 3 – starts on the bottom of page 38) In a nutshell, if you want gender recognition including employment law protection and you are married, you’d better hope you have a cooperative spouse. Otherwise, you’ll be forced to go through the cost of initiating an annulment yourself. That is, of course, assuming your spouse isn’t inclined to engage in delaying tactics over any divorce because they can make you wait a long, long time to get your legal rights if so.

Quite why the legal gender of the person you are married to is more important than if they are living as and perceived by the world as a particular gender, or if they have a particular genital configuration, has yet to be explained by anyone involved. For the avoidance of doubt, because many legislators didn’t know this, a spouse has no say in change of legal name and going “full time”, in starting hormone treatment or in surgery. There is also no other situation that partners might find just as objectionable, such as religious conversion or racking up huge debts, that require a special veto clause in legislation rather than using the generic marriage-broken-down-irretrievably clauses. Such “you must have your husband/partners consent” clauses were, rightly, removed from legislation a long time ago. GRCs are unique in having this reintroduced.

They have also made no move to restore marriages stolen under the old system.

On the plus side, it doesn’t look as if someone can annul their marriage just because their partner had a GRC from before they were married if they’re in Scotland. That’s something they have right historically, at least.

But it’s almost as if they just copied what Westminster did and were not paying attention.

Trans marriage rights reach the House of Lords

Today was the third and final day of the House of Lords committee stage for the Marriage (Same-Sex Couples) Bill. First of all, some background on the current state of the bill for trans folk – overall, it’s progressive because it removes the forced-divorce requirement of the current situation. Even if your spouse was 100% cooperative and happy to remain married, the lack of same-sex marriage in this country (And of opposite-sex civil partnerships, for those in civil partnerships) meant you had to divorce and get re-married/civil-partnered in order to obtain gender recognition.

Beyond that, it appears to have been the position of government to try to limit trans rights as much as possible.

A whole raft of possible improvements were suggested, many of which were raised by trans activists over the course of several meetings with civil servants. I’ve covered some of them here, although removal of gendered language (i.e. say “partner” instead of “husband/wife”), survivor pensions and reinstatement of the old fast-track GRC process were also discussed. (More on fast track later)

Several months on and things are not looking good.

The government has shot down almost all of the amendments, granting only survivor pensions during the passage of the bill through the commons. (Notably, the one suggestion that benefits not just cis people but cis wives specifically – it only has a beneficial effect for the wife of a trans woman)

This left trans activists in the unenviable position of deciding where to concentrate limited political capital, with the remaining items eventually being spousal veto and fast-track. Even then, the abolition of the spousal veto to gender recognition completely was not going to be possible – instead a watered down version (Amendments 46ZA through 46ZG) was produced which time-limited it to 6 months, after which a full gender recognition certificate could be applied for. (12 months if the partner started proceedings first)

With the veto in place, the entire financial and emotional burden for initiating annulment proceedings falls upon the transitioning partner, as if it is their fault for being trans. It also becomes possible for a particularly non-cooperative partner to delay or even stall proceedings totally for many years, possibly using someone’s legal rights as a bargaining chip to gain benefits or just out of malice. (This sort of behavior is all too common in acrimonious divorces, sadly – even to the extent of pre-emptively starting proceedings and abandoning them to prevent the other side from initiating divorce themselves and delaying things as much as possible)

Baronesses Barker and Gould proposed the amendment in the House of Lords today, with the relevant discussion starting from 3:41pm. (Hansard transcript also available.) There were some particularly good quotes from Baroness Gould: “No other area of law requires spousal consent for a change in the relationship…formal spousal consent is a new concept in law. Without this amendment, the government is saying to trans people that they are somehow second class citizens“. Baroness Butler-Sloss also spoke up in favor meaning the amendment had, significantly, support from LibDem, Labour and Crossbench peers.

The government response from Baroness Stowell was, essentially, “no, we’re not going to do this” with her response going so far as to suggest the decision to end a marriage because of gender recognition was one that was entirely the problem of the trans person. However, it was ill-prepared and they were clearly not expecting to be pushed on the issue. Eventually the amendment was withdrawn (This is normal practice, amendments do not generally get pushed to the vote, particularly at this stage) with the government committing to have more discussions and report back in writing.

Not a victory by any stretch of the imagination, particularly given that this was supposed to be a compromise amendment for the government to meet us half-way in the first place.

The one small glimmer of hope is that there may be government amendments at the next stage to re-introduce fast track: The mechanism by which someone who has transitioned for a long period (several years) to obtain a Gender Recognition Certificate with reduced requirement for reports from doctors, many of whom may no longer be practicing. Despite this, there is much predictable anger on Twitter at the government’s point-blank refusal to consider any trans rights, even when compromises are proposed.

Finally, to clear up a couple of misconceptions I’ve seen elsewhere:

  • The interim Gender Recognition Certificate-based procedure to dissolve the old marriage and re-contract a new one on the same day when you’re issued a doesn’t work in practice due to the way the paperwork is handled. (I think it’s only been successful once) Usually there is a delay of several weeks, especially if you’re trying to organise a ceremony around it. There would be all sorts of inheritance problems if one partner dies during this problem but thankfully I don’t believe this has ever happened.
  • The ability for a spouse to divorce someone who had a GRC before they were married (Unless they can prove they told them about it somehow) isn’t introduced by this bill – it’s from the original Gender Recognition Act 2004. However, it’s something that was raised as part of this bill and the government refused to change. (For some reason, they consider existing “unreasonable behavior” divorces to be insufficient – trans folk need to be punished for their “deception”.