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”.

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