Marriage (Same Sex Couples)

Memorandum submitted by Helen Belcher (MB 107)

1. This submission is made by Helen Belcher. I am a woman with a transsexual history, in that I was registered male at birth and changed my name and gender presentation in 2004, following three distinct diagnoses of gender dysphoria. I did not chose to be trans. Indeed, for many, many years, I tried very hard not to accept that I was trans. This denial almost drove me to suicide.

2. I still live with and am still happily married to my wife of nearly 19 years, and we have two teenage children. We decided that, in order to provide a stable family life for our children, we would not go through the barbaric process of divorce, gender recognition and civil partnership. This has forced me to unfairly choose between Article 8 and Article 12 of the European Convention on Human Rights.

3. We know other people who undertook this process and, with only one exception, they found it traumatic and long-winded – there being significant difficulties in ensuring that the three processes could dovetail seamlessly. The exception was, perhaps unsurprisingly, the trans woman and her wife who had significant media interest and attention on the day the Gender Recognition Act came into force.

4. My lack of gender recognition does cause us some occasional administrative inconvenience and me some personal unease and distress, particularly when dealing with insurance renewals and other official forms that demand I provide my gender.

5. Both of us strongly welcome the principles behind the Marriage (Same Sex) Bill that is currently before the Committee, especially as it relates to the gender recognition process, as this makes the divorce/annulment and re-constitution of our marriage unnecessary. I have said as much to both the Prime Minister and Home Secretary in person.

6. However I still have some concerns about some of the implications that arise from the way the Bill is currently worded. A Bill, motivated by equality and fairness, and which correctly rights wrongs, should not leave obvious wrongs still in place.

7. I have contributed to the submission to the Committee already made by the Gender Identity Research and Education Society (GIRES). Many of the points I make will be similar to those raised by GIRES, although I may approach them in a slightly different way.

8. The issues I wish to highlight include the dilemma that trans people will face if they are members of public and/or occupational pension schemes, the imposition of a spousal veto upon gender recognition, the difficulties with the gendered language currently in the Bill, a proposal to re-introduce a fast-track gender recognition procedure, a request to resolve the issue of those marriages that were dissolved (effectively under duress) in order for one spouse to gain gender recognition, and an issue with the Matrimonial Causes Act 1973.

Public and Occupational Pension Schemes

9. It is my understanding that the spouses of trans people in public sector and occupational pension schemes may lose out financially, in some cases quite considerably, if their trans partner is granted gender recognition as a woman if the Bill remains unamended. The proposal seems to be that the surviving spouse’s pension rights would be restricted to the equivalent same-sex marriage basis. However these are contributions that have already been paid for.

10. This financial dilemma is as barbaric as the current choice between gender recognition and ending a marriage. It would be a disincentive for those who were married before 2004 and/or 1988 to consider gender recognition. For those who have been married a long time, this would be a considerable disincentive. I know at least one couple where the spouse’s survivor benefit would be effectively halved if the trans person gained gender recognition.

11. The proposal appears to be as a result of perceived administrative convenience, and also appears to be in direct contravention of a European Union Council Directive from 1986.

12. The European Court of Human Rights, in its judgement in the Goodwin v UK case in 2002, states "the Court considers that society may reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the sexual identity chosen by them at great personal cost."

13. The Bill should be amended so that the prior "opposite-sex" status for such marriages is recorded within the pensions scheme records (presumably held by DWP or HM Treasury) to enable the benefits to continue to be treated on the basis of the contributions that have been paid. To do otherwise would seem like the state is stealing benefits from the surviving spouse.

Spousal Veto

14. The Bill before the Committee currently requires the spouse’s consent to change the context of the marriage. Pension rights aside, it is not entirely clear what the spouse is actually consenting to – after all, not every trans person is a member of a public or occupational pension scheme. The legislation still continues to allow a discriminatory distinction between "same-sex" marriage and "opposite-sex" marriage, presumably on the grounds of perceived sexual orientation, without clear purpose, especially if the pensions issue referred to above is resolved.

15. By the time a trans person becomes eligible for gender recognition, people will generally perceive that individual as already being of their "acquired gender". If the spouse refuses consent (to this intangible, perceived change of status to their marriage), then the trans person’s gender recognition process halts, and there is nothing the trans person can do to change that situation. It is quite possible that divorce proceedings may already be underway. This is a gross breach of the trans person’s rights under Article 8 of the European Convention on Human Rights.

16. Relationships where one partner "comes out" as trans can cause disruption and hostility between the partners. Because of my work on support forums for trans people, I know of several cases which have resulted in acrimonious divorce as a result of such disclosure. Some trans people have been forced through long, drawn-out divorce proceedings with no ability to resolve them. The legislation as currently drafted would hand the right of gender recognition solely to such an obstructive spouse, who may delay it, without good purpose, for many years and, potentially, indefinitely.

17. I believe that there is an amendment before the Committee which removes the right of spouses, obstructive or not, to block gender recognition by withholding consent. I would urge the Committee to support this amendment.

Pre-Existing Civil Partnerships

18. There are trans people who have contracted civil partnerships who may, for a number of reasons, desire that the civil partnership be allowed to continue without interruption following one partner’s gender recognition. The current proposals do not allow this to happen. Instead the civil partnership would have to be converted into a marriage prior to gender recognition, thereby incurring the couple additional costs compared to those already in a marriage prior to gender recognition. This additional cost could be considered as discriminatory on the grounds of sexual orientation.

19. Further, some trans people may have entered civil partnerships with other trans people. If their paths to gender recognition do not coincide then the "same-sex" civil partnership will be forced to convert to a "same-sex" marriage, before converting (upon partner A’s gender recognition) to an "opposite-sex" marriage, before reverting (upon partner B’s gender recognition) to a "same-sex" marriage. The forced conversion to marriage achieves no purpose here, and the civil partnership cannot be regained without divorce.

20. I understand that the Ministry of Justice appreciates that two trans people may be in a civil partnership, but the Ministry appears to have only recently understood that the partners’ paths to their respective gender recognition may take place in completely different timeframes. The current proposals require the partners to co-ordinate their gender recognition applications. While I am aware this has happened, my experience leads to me to consider this to be the exception rather than the norm.

21. I consider it far more likely that two trans people in a civil partnership will "transition" and seek gender recognition at different times – as described in paragraph 18. To allow the current proposal to stand unamended may place unreasonable pressure on the "late-transitioning" partner to consider "transition" and gender recognition at the same time as their partner, which may not be appropriate for that individual, or to place unreasonable pressure on the "early-transitioning" partner to defer gender recognition.

22. I strongly urge the Committee to pass an amendment to allow "opposite-sex" civil partnerships to cover the situations in paragraphs 17 and 18/20, even if the Bill is not amended to allow "opposite-sex" civil partnerships to be contracted. The German model, where a civil partnership is valid if it was contracted by two people who were the "same sex" at the time, is a useful precedent here.

Gendered Language and Intersex/Non-Binary People

23. It is important that the legislation avoids gendered terms, such as "husband" and "wife", as much as possible. In the consultation phase prior to the Bill being published, the term used was equal marriage. I greatly prefer this term.

24. My wife is still my wife, despite my "transition". However, she may well struggle to refer to me as her wife, even after 10 years. For the state to impose that description on me would cause her great difficulty, which may disrupt our family life, thereby breaching Article 12 of the European Convention on Human Rights. Equally, however, I would (and do) object to being labelled the husband of my wife. I do not consider myself to be male, despite the absence of a Gender Recognition Certificate.

25. There are many people who do not identify themselves as either male or female, or identify themselves as a mixture of both male and female. These "non-binary" people would include some intersex people and some trans people. Studies indicate that as many as 1% of the population may be intersex – although that is not to say that 1% of the population consider themselves "non-binary". Research is lacking in this area.

26. I have noted that some members on the Committee seem concerned about consummation. Talking in such terms may well alienate some intersex people who could not effectively consummate their marriage as either male or female – the current law thereby rendering such people, in theory at least, unmarriageable.

27. The language in the Bill needs to be inclusive, and must not alienate intersex or non-binary people. Indeed, this is an additional reason for removing the distinction between "same-sex" and "opposite-sex" pension rights discussed above.

28. The Bill should be amended to make it possible for parties to a marriage to be able to choose which terms are applicable, including but not necessarily restricted to "husband", "wife", "partner" and/or "spouse".

Fast-Track Gender Recognition

29. Section 27 of the Gender Recognition Act 2004 implemented a fast-track procedure for those individuals who had lived in their "acquired gender" (to use the term in the Act) for more than 6 years. People applying under section 27 were required to provide less evidence than those who were not applying under that section. It was recognised that the original documents that (or medics who) diagnosed gender dysphoria may be tricky to track down in such cases. This section had a sunset clause, and expired in 2007.

30. Some trans people who were eligible for this fast-track procedure prior to 2007 would have also been married, and would have decided (as I have) not to undertake the gender recognition process because they valued their marriage more. It is fair, therefore, that the fast-track procedure be reinstated, at least for these people.

31. However, the argument that original documents or, indeed, medics may be difficult to track down remains as valid today as it did in 2004. Even though I "transitioned" in 2004, and would not have been eligible for the fast-track procedure by the time it expired, the psychiatrist who provided my diagnosis and covered my transition has retired some years ago. There are many others in similar situations.

32. I would like to see Section 27 of the Gender Recognition Act reinstated without a sunset clause. It should be reasonable to assume that someone who has lived in their "acquired gender" for 6 years or more is unlikely to revert, and they may well have difficulties providing the relevant documentation from that time back.

33. Additionally reinstating such a fast-track procedure should reduce the workload on the Gender Recognition Panel for each application made under such a procedure – something that should be valuable in these cash-straitened times. I note that the Ministry of Justice appears concerned about the increase in workload that may result for the Panel should this Bill be enacted. This proposal should go some way to alleviating that pressure.

"Stolen Marriages"

34. There are some trans people whose dysphoria was so great, or whose financial circumstances were such, that they felt forced to go through the current process of divorce or annulment prior to gender recognition. Many people I know who did undertake gender recognition and reconstitute their marriage as a civil partnership feel that their marriage was, in some way, stolen by the state at much cost. Often they had to pay thousands of pounds for the various court proceedings and lawyers’ fees, let alone the fees for the gender recognition process and subsequent civil partnership. The emotional cost of this action should also not be ignored.

35. I appreciate that defining such relationships in law may be difficult, but it would be again barbaric to force such people to have to pay to have their relationship once again recognised as a marriage. Indeed, I believe that many such couples would greatly value having the marriage reinstated as if it had never been dissolved or annulled in the first place.

Non-Disclosure of Gender History as Grounds for Divorce/Annulment

36. Currently, a marriage involving a trans person may be annulled (under section 12(h) of the Matrimonial Causes Act 1973) if the trans person has a Gender Recognition Certificate and does not disclose their gender history to their spouse.

37. If the trans person does not have a Gender Recognition Certificate, then section 12(h) cannot be used, even if the trans person does not disclose their gender history to their spouse.

38. This discrepancy places a discriminatory burden upon trans people who hold Gender Recognition Certificates to disclose their gender history to prospective spouses. As such, it is a disincentive to apply for gender recognition.

39. To resolve this, section 12(h) of the Matrimonial Causes Act should be repealed. Instead, divorce in such situations may be granted under section 12(c), which gives grounds of duress, mistake or unsound mind. The process would be that the petitioner would claim that informed consent to the marriage was not gained due to the mistake made by the trans person in not disclosing their gender history.

March 2013

Prepared 13th March 2013