Same Sex Marriage Bill – Transgender Implications

The government has published its long-awaited proposals for same sex marriage. This is a technical blog post, looking at what the implcations for trans people are:

I have a non-binary identity

The government’s equal marriage consultation set the tone by starting off talking about “marriage regardless of gender”. This was hopeful in that it suggested that trans issues were being given equal consideration to the comparatively more straightforward issue of same sex marriage in a cisnormative situation.

Note however that this bill is called the “Marriage (Same Sex Couples) Bill”. This seems like a retrograde step. We’re back to talking about “same sex” and “opposite sex” rather than “regardless of gender”. Indeed, it goes on, when talkming about how “marriage” is to be interpreted in existing legislation:

A reference to marriage is to be read as including a reference to marriage of a same sex couple

Same goes for cohabiting people who aren’t married – extension is to be granted to same sex couples.

Furthermore:

(a) “husband” includes a man who is married to another man;
(b) “wife” includes a woman who is married to another woman

This is pretty thin for non-binary people. If you’re neither a man nor a woman, or your marriage can’t be described as either “opposite sex” or “same sex”, then you’re not included in any of this. Where the consultation simply avoided this “opposite sex/same sex/man/woman” distinction entirely with “marriage regardless of gender”, what we now have in the bill is “marriage for the genders of male and female”.

If that’s not you and you want to get married, you’ll likely have to lie about who you are.

I want a civil partnership

Nothing has changed – you and your partner have to be the “same sex”, even if that’s a completely nonsensical way to describe your relationship. If the concept of “same sex” doesn’t mean anything in your relationship, you’ll likely have to lie if you want one of these.

I’m in a civil partnership and I’m transitioning

If you are in one of these and want a Gender Recognition Certificate, you have a few options:

  • Convert your civil partnership to a marriage before having anything to do with the Gender Recognition Panel.

  • Get an Interim Gender Recognition Certificate and annul your civil partnership. This is the same as at present and there are no proposals to end this barbaric practice.
  • Have your civil partner transition to the same binary gender as you (if one or both of you aren’t binary, lie) and apply for a GRC at the same time. The highly competent and efficient civil servants who administer all this stuff will make sure this works smoothly (warning: sarcasm may apply).
  • Don’t get a gender recognition certificate. This is what lots of people in this situation (both in civil partnerships and marriages) already do, because they regard their relationship as more important than legal recognition as their proper gender. I wish I hadn’t found out I was one of these people until too late.

If you want to transition into an “opposite sex relationship” in the eyes of the state and retain your civil partnership, you can’t. If you have lots of money you may want to consider speaking to a human rights lawyer at this point.

I’m already married and I want to stay married and I want a Gender Recognition Certificate

Congratulations. You fall into the category of “trans people for whom this is actually useful”. You can have one. Your existing relationship will continue to be recognised. It’s not clear if you can get your name fixed on a reissued marriage certificate the way you can on your birth certificate; the bill doesn’t say.

I was married, I had my marriage annulled, I’m now in a civil partnership, can I have my marriage back?

I’m in this situation. The answer is no, you can’t. It stinks, doesn’t it? The government screwed us over and it’s not really interested in sorting that out. It’s not that the bill prohibits restoration of our relationships per-se; it just completely ignores the issue. It’s almost as if they’re really embarrassed about what they did to us and hope that by not mentioning it, it’ll just go away.

Oh, right…

I’m married, my relationship has turned acrimonious. We have a house/kids/shared stamp collection [delete as applicable], it’s all really toxic, does this affect my rights under this bill?

I have some bad news for you. You might want to sit down.

The stuff about marriage being no impediment to getting a Gender Recognition Certificate any more … that’s not entirely true.

When you apply for a GRC, if you’re married, you need your spouse to consent in writing to you getting a GRC.

That’s right – this person who probably has a restraining order against you, and is threatening to never let you see your children again, and has told all your mutual friends that you’re dead, or have been kidnapped by penguins, or anything to escape the shame of being married to one of them, this person has a veto over your legal gender.

It’s only a temporary veto. If they don’t sign the form and you apply for a GRC, you get an Interim Gender Recognition Certificate. You then have to go through the annulment process as before. Your partner can stall this for a bit by not responding to court letters and hiring solicitors and stuff. Basically, you have to go through the pain of an acrimonious divorce before you can have a Gender Recognition Certificate, even if you’ve been separated for years, probably on account of the stress your poor ex partner will have to go through if they realise that you have a piece of paper in your desk drawer which makes them officially gay.

A note on consummation

It’s not clear what this means for trans people who don’t have the expected genital configuration. If the government don’t tighten this up, expect another hilarious court case along the lines of Corbett v Corbett real soon now.

Conclusion

If the government were to publish a bill that provided for marriage for same sex couples, and then noticed that they got the bare minimal bit of Gender Recognition Act reform thrown in for free, but didn’t decide to actually go out of their way to do a single damned thing for trans people, it would would look exactly like this one.

Shame really – it showed so much promise. We’ve been thrown under the bus again, but it’s what we’re used to, right?

I’d better stop, as I seem to be getting a bit cross.

21 thoughts on “Same Sex Marriage Bill – Transgender Implications

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  3. I am bloody furious that yet again the transgender community have been overlooked by decision makers…I appreciate that this is a huge step forward for homosexuals but as the current law lumps us together with the gay community should we not be receiving the same rights or maybe we should be gettin the same rights as so called “ordinary people”…i think in the 21st century the government needs a huge wake up call!!!

    • I don’t think we’ve been entirely overlooked. It’s just that all we got is what falls out of legislating for same sex marriage. The consultation hinted at more.

  4. I’m so sorry that you’ve been treated like this. Can nothing be done in the way of amendment at this stage?

    We could very easily have been in the same situation.

    • Amendments are definitely possible at this stage. Am already in talks along those lines. We need other trans people to push their MPs on this.

  5. Hi Sarah, so trans people have been thrown under the bus. Do you know if intersex people are included in any way in this Bill, or we have, as per usual, been ignored altogether yet again?

        • I would really like to talk to Intersex Lib Dems wanting to get active in this area. We desperately need someone to represent Intersex issues in LGBT+LD and I don’t feel able to do it, not being Intersex and not wishing to be appropriative.

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  7. I’m not trans or intersex, and I had no idea of the fact that the bill made no effort to accommodate you. Is there anything I, or other people, could do? Write to MPs/Lords?

    • Thank you for asking. Yes, indeed. Please write to your MP and ask that they support any amendments aimed at improving the situation for transgender people with respect to the above issues.

      And thank you again!

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  9. Im in a civil partnership and is transitioning FTM does this mean I will be able to converter to a marriage and have my new name used on it? Thank you

    • You’ll be able to convert to a marriage. I don’t know about the name situation, but I would think you should be able to.

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  11. Hi Sarah, just wanted to say thank you so much for writing this. It’s the clearest statement on the issues that I’ve been able to find and has really helped clarify my understanding of the bill.

    In solidarity,
    K

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  13. Actually the intersex issue is precisely the one you mention: consummation.

    It’s unclear (i.e.no case law) but seems likely that if a new birth certificate is issued under GRA then the Corbett test (which remains valid case law for now) applies at the date that new birth certificate is registered not at birth. Thus someone who has had genital surgery becomes no longer transsexual under the Corbett test. Those who have not had full surgery might remain transsexual or become intersex. The permutations are actually more complex than that.

    Thus people who have thought of themselves as trans, might find they have become inteintersex (or vice versa if an intersex person somehow managed to get a GRC).

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