Marriage (Same Sex Couples)

Memorandum submitted by Sarah Noble (MB 111)

My name is Sarah Noble. In addition to the application of the bill to LGB people, as a transgender rights advocate, I have particular interest in the bill as it applies to transgender people.

1. I notice that when the consultation into the bill was announced, Lynne Featherstone, then a junior minister for equalities, and also Theresa May, then also the Minister for Women and Equalities, announced that the bill would allow people to seek a gender recognition certificate (GRC) without having to annul their marriages. Such a change is welcome, given the "Sophie’s Choice" that many trans people must make between legal recognition of their gender and of their relationship.

2. During the Report Stage of the Gender Recognition Act 2004 (GRA), Andrew Mitchell tabled an amendment that would allow people who married prior to that Act’s commencement to retain their marriages. The amendment was opposed by the Government of the time, was whipped against, and fell. The minister responsible for the Act, David Lammy, stated:

Based on a fundamental principle, the Government stand by the requirement that marriage is for opposite-sex couples. I realise that the hon. Gentleman's proposal is well intentioned towards transgendered people who are together, but the Government's position is that such a possibility is remote, and in those circumstances, we believe that ending such a marriage and beginning afresh would not be unreasonable. On that basis, I am unable to accept the new clause.

3. This statement, I believe, also puts to rest the canard that civil partnerships were, from their outset, the start of a "slippery slope" towards same-sex marriage. It is clear that the Government of the day were committed to the idea that civil partnerships for same-sex couples was enough, somewhat to the detriment of many couples in this situation.

4. The bill as proposed does mitigate this  awful choice somewhat, but there are parts of the bill which still force trans people into making a difficult choice:

a. As proposed, married people seeking a GRC must include a statutory declaration of their partner’s consent to the continuation of their marriage. Otherwise, the applicant will only be issued an interim GRC. For many trans people, this is impossible due to estrangement with their partner. As separation is in itself grounds for divorce/annulment, removing this provision would cause no harm.

b. People in civil partnerships seeking a GRC must dissolve their partnership under the bill, as civil partnerships will remain exclusive to same-sex couples.

5. On that basis, I support amendments tabled by Julian Huppert, Hugh Bayley, Chris Bryant, and Kate Green to not only allow people to remain married or in civil partnerships while one or both partners are seeking a GRC, but reinstate marriages, with retroactive effect, for those people who have already made the choice to seek a GRC. I also support amendments tabled that would:

a. Introduce civil partnerships for mixed-sex couples, not only on a general point of equality, but also to provide a solution for the problem outlined in 4b.

b. Remove the "spousal veto" as mentioned in 4a.

c. Remove one partner holding a GRC as a reason under the Matrimonial Causes Act to void a marriage.

d. Reinstate the "fast track" to gender recognition that expired two years after commencement of the GRA.

6. I have my concerns, along the same lines as GIRES, UKIA, and Christie Elan-Cane, that the bill includes unnecessary gendered language. A bill that ensures marriages of two people regardless of gender is preferable to one that only allows marriages for male-male, male-female, and female-female couples. While a moot point due to the current legal system of gender, it may be a subject of discussion in the future.

7. I also have my concerns that the bill and amendments tabled expose how complicated the pension system, especially concerning survivor benefits, is with regards to gender and sexuality. I believe that reform of the pension system to introduce progressive pension equality should be considered by this and future Governments.

8. I would also like to address some comments made both during the Second Reading debate and in committee that imply that this is progress the LGBT community do not want. While Stonewall indeed did not press for same-sex marriage until 2010, this opposition/recalcitrance was highly controversial amongst the LGBT community. Indeed, Stonewall themselves admitted, under pressure, that they "never pretended to be a democratic member organisation". There also remain serious criticisms within the transgender community of Stonewall.

9. In general, I support the bill as introduced over no bill at all, but I also support an amended bill over the introduced bill.

March 2013

Prepared 13th March 2013