Marriage (Same Sex Couples)

Memorandum submitted by The Gender Identity Research and Education Society (MB 29)

Introduction

1. This submission is made by The Gender Identity Research and Education Society (GIRES). GIRES is a charity that provides information, policy advice and education in the transgender field, with the aim of encouraging a welcoming environment for trans people, and better social inclusion for them and their families. The Equal Marriage Bill is crucial to the delivery of fair and equal treatment in the future of trans people and their spouses; it is also hoped that those who have been subject to previous inequalities arising from the conflict between the GRA and marriage as well as other legislation will now, in some measure, achieve justice and restitution. We have identified, below, steps that could deliver these ends. We have not yet drafted all the amending clauses that our recommendations would entail in the Bill. We plan to complete that task by working with the Bill drafting team. However, we will send what we have prepared so far as a separate Annex to this submission. Moreover we support the amendments prepared by Zoe O’Connell and Sarah Brown that have already been tabled.

Summary of issues

2. Ending of a relationship for one party to obtain a Gender Recognition Certificate (GRC) is wrong in principle and there is no case for excluding different legal sex couples from civil partnerships.

3. The Bill redefines an existing marriage as a same sex marriage following a trans spouse’s gender recognition. As a consequence, a wife’s survivor benefits in her trans spouse’s occupational pension scheme change from the married wife basis to the more restricted same sex basis. The wife’s survivor benefits may therefore be drastically reduced or totally lost as a result of gender recognition, which may result in an unfair and unacceptable condition on the trans spouse’s human rights to gender recognition.

4. Furthermore, the Bill contains gender specific language that might be wholly inappropriate for many trans affected marriages and is a clear indication that non-gendered/intersex people have been excluded from the Bill.

5. There has been no attempt to undo the hurt inflicted on couples who had their marriages ‘stolen’ for one party to obtain their legal rights. This may be a challenge for government but something must be done to reinstate such marriages from their original date.

6. The Bill fails to appreciate the pressures within the family unit during the difficult time of transition. The proposed measures do not address the destabilising effect on families of the Gender Recognition Act 2004 (GRA), because they fail to achieve a fair balance between the rights of the spouse and the GRC applicant. The Bill is unnecessarily complicated as a result. Furthermore, if the unfair balance were to be retained, the time limit for  the conversion of interim GRCs to full GRCs is unreasonably short.

7. Under the Matrimonial Causes Act (1973), the enforced gender-based disclosure requirement on GRC holders, prior to entering a marriage or civil partnership is discriminatory. This requirement does not apply to trans non-GRC holders. Moreover, no other identity group, other than trans, is targeted in terms of a highly invasive disclosure requirement.

8. We are extremely concerned there is no new ‘fast track’ application process for long term transitioned people, as originally provided by the GRA.

Schedule 5 - 4A (3) - the treatment of trans people in a civil partnership

9. GIRES takes the view that gender recognition is a personal issue and should not be assessed in any relationship context. The Bill, as proposed, removes the requirement for annulment of a marriage before a GRC is issued but a civil partnership must be ended before one or both parties can obtain a GRC. This is both wrong in principle and also discriminates against heterosexual couples who may wish to form a civil partnership. It is accepted that the civil partnership can be converted to a marriage and indeed some couples may wish to do so.

10. However, in ending discrimination against same legal sex couples, the Bill introduces discrimination against mixed sex couples. If government is unwilling to open civil partnerships to opposite sex couples, it is proposed that those who are in civil partnerships and wish to obtain a GRC should be allowed not to convert, on the basis that they met the requirements for a civil partnership at the time it was entered.

Schedule 4 - Part 6 - Regression of survivor’s rights in occupational pension schemes as a result of gender recognition

11. The Bill provides an exception to avoid loss of wife’s state pension on spouse’s gender recognition in an existing marriage, but fails to avoid regression of wife’s survivor rights in occupational pension schemes on recognition. Regression occurs because a wife’s marital status switches from opposite sex to same sex, to apply more limited same sex rules. Whereas married women’s survivor benefits are based on years accrued from 6/4/1978 onwards, public sector pension schemes only give survivor benefits to same sex couples from 6/4/1988 onwards (potential loss 10 years’ rights) while significant numbers of private sector schemes only provide from 6/12/2005 onwards (potential loss 27 years’ rights). While private sector schemes have discretion to retain wives’ original survivor benefits on gender recognition, public schemes have NO discretion. Loss of wife’s survivor benefits on recognition may impose an impossible and incalculable condition of gender recognition, potentially denying significant amounts of, or all survivor benefits. (See examples in Annex A.)

12. Therefore, one stated aim of the government’s equal marriage proposals, for spouses to obtain recognition in a subsisting marriage without prior annulment, will fail a significant proportion of individuals intended to benefit.

13. We feel the imposition of this obstacle upon recognition within marriage contravenes the transsexual spouse’s Article 8 rights at least, while the proposed loss of wife’s survivor rights is thought contrary to EU Council Directive 86/378/EEC of 24 July 1986 relating to occupational pensions. The true comparator of a wife whose husband undergoes gender reassignment and its ultimate conclusion, gender recognition, is the wife whose husband does not undergo gender reassignment/recognition. We therefore feel the proposed treatment of wives’ survivor rights on gender recognition is unlawful. A comparison with female same sex couples is a spurious result of imposing existing civil partnership rules as a matter of administrative convenience. Such couples have not been previously married, neither party made extra contributions on account of survivor rights until 1988, neither party ever had pre-1988 survivor rights and their rights, when granted in 2005, were previously unprovided scheme liabilities.

14. The Minister’s oral evidence of 12 February to Committee gave only two reasons for this treatment:

a: it would impose extra administrative/regulatory burdens - We disagree and in any case refer to paragraph 91 Goodwin v UK (ECHR/2002/588) judgment which, in deciding that transsexual people have the right to legal recognition, stated in relation to the practicalities of recognition that "No concrete or substantial hardship or detriment to the public interest has indeed been demonstrated as likely to flow from any change to the status of transsexuals and, as regards other possible consequences, 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." Therefore administrative/regulatory convenience is insufficient to negate these rights of transsexual people and their spouses.

b. that it would necessitate intrusive questions to deceased transsexual spouses’ wives to evaluate survivor benefits – We disagree again, as pension schemes should be able to identify benefits clearly when they are notified of any gender recognition in marriage. And, sadly, intrusive questions are already an everyday risk of being a transsexual person or their spouse, privacy being a primary reason for the GRA’s enactment.

Schedule 3 Part 2 - Inappropriate gender-specific language

15. Although the understanding was that legal gender was to be taken out of marriage law, the terms ‘husband and husband’ or ‘wife and wife’ will be used in equal marriage ceremonies. This may suit the gay and lesbian community. Such terminology will be inappropriate for many in a trans affected marriage, if these terms are employed on revised marriage certificates. A non-trans female spouse may be unwilling to consider her ‘ex husband’ as her wife despite a GRC award.

16. Such folk may be more comfortable considering themselves ‘spouses’. Trans affected marriages are not necessarily gay or lesbian relationships. There is no evidence to suggest that a spouse’s sexual orientation changes on the partner’s gender transition! In the context of trans affected marriages, the option to use the term ‘spouse’ should be a choice.

17. Discriminatory language with regard to trans people in relation to the Bill on religious grounds (use of the terms "husband" and "wife") should not be allowed. In our view, religious discrimination against trans people on marriage is already sufficiently provided for in the GRA’s conscience clause allowing Church of England priests to refuse to marry an individual whose gender is legally recognised under the GRA.

18. The Bill does not address the needs of the ‘non-binary’ community. These people have identities that are not completely congruent with the sex in which they were registered at birth. This will include those who have intersex conditions. Note those that do not fit the binary are not even covered under ‘gender reassignment’ in the 2010 Equality Act. If such people get married, the terminology used (husband/wife) will clearly be wholly inappropriate.

Schedule 5 - Stolen marriages

19. Although Schedule 5 allows couples who ended their marriages under duress and formed a civil partnership to convert to a marriage, it will not be a conversion back to their original marriage (that some consider ‘stolen’). To quote one person:

"After a circuit judge annulled our marriage, we left the court in tears, holding hands. Over the next few weeks, we barely let each other out of sight. It felt as if something visceral had been torn away. It still hurts; the three and a bit years since haven't lessened that. The court even confiscated our marriage certificate, and not knowing they were going to, I never made a copy. As far as the state is concerned, our marriage never existed, and the only proof I have otherwise is a decree absolute."

20. A reasonable person would surely agree that a great wrong has been done to such folk. Putting someone in a position where they must choose between their human rights and ending their marriage is incredibly cruel. Whilst we applaud ending this cruelty for new couples, a mechanism for reinstating the original marriage, as far as possible, would go some way to make amends for the great distress caused that continues to be felt.

21. Furthermore, such folk paid the legal costs for their original marriage and their civil partnership and will no doubt be asked to pay further fees if they wish to convert their civil partnerships to a marriage. This is completely unfair and an important matter of principle.

22. Our recommendation is that any married couple who annulled for the award of a GRC and then formed a civil partnership within an appropriate time limit should be allowed, on request, to have their original marriage reinstated ab initio. Section 96 of the Civil Partnership Act included a mechanism for attempting to make these relationships as continuous as possible, under the somewhat clunky system which currently exists and suggests an appropriate time-limit. This should result in a marriage certificate issued in their current names, showing the original date of marriage, and the marriage should be considered to have been continuous.

Schedule 5 section 4 - Family destabilisation/impact on GRC applicant due to the inappropriate balance struck between GRC applicant and spouse

23. Currently, and as proposed in the Bill, if an Interim GRC is awarded, the non-trans spouse is required to sign annulment forms etc to end the marriage. That spouse may not want the marriage to be ended or indeed may be openly hostile to the trans partner or uncontactable. Often, hostility is due to anger at the apparent ’loss’ of the spouse on transition, even if they remain together, a type of bereavement process that needs time to play out. At other times, lack of spousal cooperation in the gender recognition process is an attempt to make the partner change their mind and ‘revert’. This all causes major stresses in the family and has a negative impact on children. All need time to adjust. Marriages that could have adjusted have been broken up; families unnecessarily destroyed. The immense pressure on the GRC candidate to rid themselves of an inappropriate gender label can only be understood by those in that position. This in itself is a factor that can and has destabilised and destroyed families.

24. As the spouse would continue to have (in effect) a permanent veto on her partner obtaining legal rights, the reason for this veto must be substantial to deny such legal rights. The GRC application can only be made after the person has transitioned to the opposite gender role for at least two years. The spouse thus has had at least two years to consider if they are comfortable continuing in a relationship with somebody who will be of the same legal gender. Indeed, even before the application is made, spouses will frequently be the same physical sex following the trans spouse’s gender reassignment surgery. If the non-trans spouse’s views were that deeply held, then they will already have had at least two years to leave/take steps to end the marriage. The Bill appears to presume that the non-trans spouse might be unfairly bounced from their current marriage into a legal same sex marriage. This is clearly not the case. The spouse has had plenty of time to take action in accordance with strongly held beliefs.

25. The consequence to the applicant of not awarding a GRC on the application alone, due to uncooperative/hostile/absent/unknown location spouses, has to be balanced against the rights of spouses who have a strongly held belief that same legal sex marriage is wrong but have not taken steps to remove themselves from that relationship.

26. GIRES remains convinced that a correct balance has yet to be achieved in the Bill in order to overcome the negative consequences to the applicant, spouse and children. Massive simplification of the Bill could be achieved leading to more efficient and faster application processes within the Gender Recognition Panel (GRP) by removing the provisions for Interim GRCs. We welcome the opportunity to review solutions with the Bill Team, which should include granting a full GRC based only on the trans person’s application, while simultaneously sending a formal notification of the grant to the non-trans spouse. That notification should enable the non-trans spouse to end the marriage or civil partnership within 6 months from date of issue Schedule 5 4A - Conversion of an Interim GRC into a GRC

27. GIRES opposes retaining Interim GRCs. However, if the government could make a convincing case for for doing so, GIRES acknowledges that the Bill introduces the valuable principle of giving the couple time to adjust to their new circumstances when an application for a GRC has been made but one or both parties remain unsure if the marriage should continue. The Interim GRC is a certificate, which confirms that the applicant has met the requirements for gender recognition. We are unclear why the certificate is only valid for 6 months for use in initiating an annulment. However, a new use is proposed in the Bill as it can now be submitted to the GRP, with spousal consent, to facilitate a GRC award.

It should be accepted that the applicant does not cease to meet the requirements for gender recognition when the 6 month time limit expires. Given this, and the reality that family adjustment often takes many years, there should be no time limit imposed unless there is an overriding legal reason for invalidating the Interim GRC in the conversion to GRC process after 6 months. The effect here would be to reduce often immense pressure on the couple, to make a decision they may not be ready to take within 6 months or indeed 6 years. Families that might otherwise remain intact are being destroyed (at potential cost to the public purse) by having to make decisions before they are ready.

Matrimonial Causes Act 1973 Section 12(h) - Inconsistent treatment GRC/non-GRC holders

28. If a transgender person with a GRC does not disclose gender history then the other party could exit the relationship relatively quickly through nullity, rather than divorce, proceedings by relying on s12(h) of the Matrimonial Causes Act 1973.

29. If a transgender person without a GRC went through a ceremony of marriage without disclosing gender history, the other party could not rely on s.12(h) as it only applies to persons with a GRC. However, the other party could rely on s.12(c) which allows nullity proceedings where a party did not validly consent due to duress, mistake or unsound mind. The claim here would be that consent was lacking due to the other party's mistake - which would amount to a claim that there was a discrepancy between apparent gender and legal gender. Thus, irrespective of possession of a GRC, transgender people intent on marriage are singled out, compared to cisgender people at large, to bear this special (gender-based) disclosure requirement.

30. Accordingly, the focus should be on abolishing the requirement to disclose i.e. repeal Matrimonial Causes Act 1973 Section 12(h).

Reintroduction of Fast Track

31. When the GRA was enacted, a temporary Fast Track process enabled those who had been living in role for 6 years and had a formal diagnosis of gender dysphoria or had undergone genital reassignment surgery , to meet the evidence requirement for GRC award, provided they were unmarried. We think the Fast Track should be reintroduced for a limited period when the GRA is revised. The Fast Track process was denied, at the enactment of the GRA, to married folk who would have otherwise qualified. If the process was considered appropriate then, it is now similarly justified for long term transitioned married individuals. The provision of such a process within the Bill will cut its implementation costs by significantly reducing the GRP’s workload.

32. GIRES is aware that many older married trans people will not be applying for a GRC as the effect of gathering information could ‘out’ them in a community in which their gender history is unknown. Many are worried by ‘leaky’ information systems in General Practice establishments and their lack of understanding of how to deal with sensitive information related to patients with a transsexual history. Many such establishments are totally unaware of the provisions of s.22 of the GRA.

Prepared by:

Ø Helen Belcher

Ø Jenny-Anne Bishop

Ø Sarah Brown

Ø Paula Dooley

Ø Christl Hughes

Ø Celia Macleod

Ø Jay McNeill

Ø Zoe O’Connell

Ø Bernard Reed

Ø Terry Reed

Ø Alex Sharpe

Ø Sarah Wood

February 2013

ANNEX A

(see also separate Excel table of calculation)

Marriages (Same Sex Couples )

Draft amendments to prevent regression of the survivor rights of a wife in an existing marriage, following a spouse’s gender recognition.

A. Analysis

I have arrived at these amendments by using what I believe to be an up to date version of the Pension Schemes Act 1993 available at http://www.dwp.gov.uk/docs/a5-1251.pdf , updating this to see the effect of the amendments proposed in Schedule 4 Part 6 of the Marriages (Same Sex Couples) Bill, and then drafting amendments to the Act so updated that will prevent the regression of the wife’s survivor rights following gender recognition. These amendments were arrived at by analysing each paragraph of Part 6 in turn as below, to arrive at the suggested text of amendments included at B below:

Sub paragraph 16 – Draft amendment 1 below ensures that wives in same sex couples as a result of their spouse’s gender recognition also benefit from the exception in Schedule 9 Para 18 Equality Act 2010 afforded to husbands and wives in opposite sex marriages.

Sub paragraph 17 – I believe that no amendment is required as this paragraph functions only to extend guaranteed minimum payment provisions of Section 8 Pension Schemes Act 1993 to same sex couples in addition to husbands, wives and civil partners.

Sub paragraph 18 – Draft amendment s 2 and 3 amend Section 17 (3) and (4) respectively, to avoid placing the limitation to accrued years from the tax year 1988-1989 onwards on wives in same sex couples as a result of their spouse’s gender recognition. Draft amendment 4 provides a definition of such wives. This seeks to follow the models provided in the Part 5 exceptions for such couples.

Sub paragraph 19 – The current clause in the Bill ensures that same sex couples are afforded survivors’ rights. Draft amendments 5 to 7 collectively ensure that wives in same sex couples as a result of their spouse’s gender recognition are included in the categories entitled under Section 24D (2) entitled to access pension rights accrued between 6 April 1977 and 5 April 1997, and that such wives are removed from the categories in Section 24D (3) whose entitlement in restricted to the period 5 April 1988 to 5 April 1997.

Sub paragraph 20 – As explained in the Explanatory Notes to the Bill, Section 37 of the Pensions Schemes Act 1993 prohibits alterations to the rules of a contracted-out scheme unless the alteration is of a prescribed description and except in prescribed circumstances. Section 37(3) prohibits such alterations by schemes that were formerly contracted-out so long as any person is entitled to receive benefits for the period when the scheme was contracted-out. Section 37(4) limits the application of section 37(3) when the beneficiary is a widower or surviving civil partner. The effect of the amendment in paragraph 20 is that this limitation may also be applied when the person entitled to receive benefits under the scheme is so entitled because of being a survivor of a marriage with a person of the same sex. Draft amendment 8 removes this limitation where the beneficiary is a survivor who is a wife who was in a same sex couple as a result of their spouse’s gender recognition.

Sub paragraph 21 – I believe that no amendment is required as this paragraph functions only to extend to same sex couples the further provisions of Section 47 (1) Pension Schemes Act 1993 regarding the effect of entitlement to guaranteed minimum pension on payment of social security benefits.

Sub paragraph 22 – I believe that no amendment is required as this paragraph functions only to extend the basis of re-valuation provisions of Section 84 Pension Schemes Act 1993 to same sex couples in addition to husbands, wives and civil partners.

Sub paragraph 23 – I believe that no amendment is required as this paragraph functions a definition in Schedule 3 (1) Pension Schemes Act 1993 to add surviving same sex spouses to widows, widowers and surviving civil partners.

B. Suggested text of amendment

1. At Schedule 4 Page 34 Line 4, at end insert

"(c) a woman who is married to a woman who is her spouse where -

(i) the spouse is a woman by virtue of a full gender recognition certificate having been issued under the Gender Recognition Act 2004, and

(ii) the marriage subsisted before the time when that certificate was issued.".

2. At Schedule 4, Page 34, Line 22, after (4) delete ":after "partner’s" insert "or surviving same sex spouse’s"." and insert

"-

(a) after "partner’s" insert "or surviving same sex spouse’s";

(b) at the end insert "but this limitation does not apply to a surviving same sex spouse by virtue of gender recognition as defined in (4C) below."

3. At Schedule 4, Page 34, Line 21, insert

"(2A) In subsection (3) after "widow’s", insert "or a survivor same sex spouse’s, where within (4C) below,".

4. At Schedule 4, Page 34, Line 22, at end insert

" (3A) After subsection (4B) insert

"(4C) A surviving same sex spouse is "a same sex spouse by virtue of gender recognition" where she was married to-

(a) a spouse who was a woman by virtue of a full gender recognition certificate having been issued under the Gender Recognition Act 2004, and

(b) the marriage subsisted before the time when that certificate was issued."

5. At Schedule 4, Page 34, Line 29, leave out "is a man married to a woman, and the earner " and insert "is a man married to a woman, or a woman within (4) below who is married to a woman, and the earner"

6. At Schedule 4, Page 34, Line 32, leave out "is a married woman, a man married to a man, or a civil partner, and the earner dies" and insert "is a married woman except within (4) below, a man married to a man, or a civil partner, and the earner dies".

7. At Schedule 4, Page 34, Line 34, at end insert

"(4) A woman by virtue of a full gender recognition certificate having been issued under the Gender Recognition Act 2004, whose marriage subsisted before the time when that certificate was issued."

8. At Schedule 4, Page 34, Line 35, delete ", in subsection (4), for "widower or surviving civil partner of an earner" substitute "widower of a female earner, the survivor of a marriage with an earner of the same sex, or the survivor of a civil partnership with an earner,". "

and insert

"-

(a) in subsection (4), for "widower or surviving civil partner of an earner" substitute "widower of a female earner, the survivor of a marriage with an earner of the same sex, or the survivor of a civil partnership with an earner,";

(b) at the end insert

"(5) The limitation in subsection 4 shall not apply to the survivor of a marriage with an earner of the same sex in which the survivor was married to-

(a) a spouse who was a woman by virtue of a full gender recognition certificate having been issued under the Gender Recognition Act 2004, and

(b) the marriage subsisted before the time when that certificate was issued."

Prepared 27th February 2013