4. Submission from the Croydon Area Gay
Society
We are responding to the Call For Evidence on
the proposed Gender Recognition Bill. We are concerned only with
section 3(3), which stipulates that full recognition of change
of gender will be denied to a transsexual person who remains married
to someone of the transsexual person's acquired gender.
We make one minor proposal to avoid an inconsistency
in this proposal in the Bill.
We argue that the proposal to deny full legal
recognition of acquired gender to someone who is already married
is wrong because:
(1) it undermines the value and permanence
of marriage;
(2) it is unjust to spouses, children and
other relatives; and
(3) it conflicts with the transsexual person's
right to "private . . . life".
Finally we propose a simpler solution that maybe
more just and consistent with current law[1]
MINOR PROPOSAL
As we are a "Gay Society", we are
very much aware of the number of countries that recognise same-sex
marriage. In Canada, for example, "marriage" is legally
the same for same-sex and mixed-sex couples.
The Bill proposes recognition of transsexual
marriages for the UK. Section 3(4) proposes that similar foreign
transsexual marriages should be recognised in the UK on the same
basis.
So logically, where a foreign same-sex couple
married abroad, immigrated to the UK, and one of the spouses changes
gender, their marriage should also be recognised in the UK. The
Gender Recognition Bill is the appropriate instrument to provide
for this contingency in the clause that follows the present section
3(4).
The clause might look something like the one
below.
3 (4b)
A marriage is a relevant post-recognition marriage
if it was recognised under the law of the approved country or
territory in question as a same-sex marriage, but the applicants
are now resident in the UK, only one has changed gender and fulfils
the eligibility criteria for an interim gender recognition certificate.
Clearly it would be inappropriate for this to
be subject to a time limitation, like the six months proposed
in 3(5).
This point is separate from those that follow.
In the items that follow we argue that marriages
should not need to be annulled as the proposed Act would require,
and suggest how they would be dealt with better.
The proposal to deny full legal recognition
of acquired gender to someone who is already married is wrong
because:
(1) IT UNDERMINES
THE VALUE
AND PERMANENCE
OF MARRIAGE.
Several transsexuals have explained that they
made life-long marriage vows in good faith, and intend to keep
them. This marriage commitment is part of the cement that binds
society together, and should not be undermined by any government.
The possibility of annulling a marriage was
sensitive and carefully considered. Nevertheless, the intent to
annul a marriage that is valid is the same as the intent to divorce—and
this is what is unacceptable, as some of the following comments
illustrate.
"My marriage and the associated vows as
far as I am personally concerned was a commitment for life. I
said it and I meant it. It is a shame that society can make oaths
that say one thing and when inconvenient make an excuse of `It
was a mistake' and dissolve it. I do not, . . . to me it will
always be my personal commitment."
"We were married in church as practising
Christians and have always been faithful to each other. The commitment
we made then means a great deal to us both and it would be extremely
painful and wrong for us to divorce."
"My husband and I took part in a public
act of sacrament in which we made a mutual commitment . . . 36
years ago . . . Surely a government that prides itself on the
promotion of family values should be doing everything it can to
preserve marriages rather than—encouraging their dissolution."
"I want to have full legal recognition but
I can't just divorce Chris . . . We are both practising Christians
and take our marriage bond seriously."
"We remain as close as ever, very much in
love and determined to remain married."
The proposal to deny full legal recognition
of acquired gender to someone who is already married is wrong
because:
(2) IT IS
UNJUST TO
THAT PERSON,
THEIR SPOUSE,
CHILDREN AND
OTHER RELATIVES.
The legal status of marriage guarantees certain
rights of inheritance, and benefits from the spouse's pension.
Indirectly it empowers each spouse to support the other through
rights such as hospital visiting. These rights would be lost if
the marriage were annulled.
(2a) Side effects of dissolving a marriage
Most female-to-male transsexual applicants will
have brought up children while their husband was the breadwinner.
Such an applicant now relies on their inheritance rights to their
husband's home, wealth and pension. The applicant would lose many
or all of these rights if the marriage were annulled.
Even if the couple made wills to guarantee that
the applicant inherited property and wealth, the bequest would
incur inheritance tax. The Bill proposes no corresponding adjustment
to the law to preserve the full bequest as the couple expected
and planned while they were married. Pension funds would often
be paid only at the discretion of trustees.
In other circumstances and to different extents,
the loss of home, wealth and pension applies to some male-to-female
transsexuals.
"In the 21st century the right of transsexuals
to . . . security in the full sense enjoyed by others in society"
was affirmed in the findings of Goodwin and I v. UK (under the
heading Article 8, second paragraph. Our emphasis). Thus the requirement
that to change one's legal gender one must annul one's marriage
with the resulting loss of security (financial and otherwise)
appears to contravene current precedent.
The rights and duties of marriage do not stop
at one's spouse. Inheritance rights include children, in some
cases grandchildren and can include relatives on both sides of
the family.
When one marries one often acquires an array
of nephews and nieces to whom one has special duties on birthdays
and Christmases—duties usually of a considerable financial
value.
When one marries one accepts that one's spouse's
parent or parents may eventually need to be cared for and to move
into the marital home. Often it is not the parent's own son or
daughter, but the son or daughter in law who has to take the primary
duty of care.
If one's fiancé (e) has children from
a previously deceased spouse, when one marries, one accepts these
step children as one's own, in fact, if not in law.
All of these parties and others are affected
when a marriage is dissolved. It is unjust that these parties
should suffer by the annulment of a legal marriage.
(2b) Side effects if a civil partnership
were substituted for marriage
There is a common expectation that the government
will permit transsexual people to "convert" their marriages
to civil partnerships.
But some of the rights and duties of marriage
are not included in the government's civil partnership proposals.
For instance:
— The law requires trustees of pension
funds to pay pension benefits to one's spouse, but there is no
proposal to include this requirement for civil partners. Roman
Catholic trustees are already constrained not to do so, and many
others will be disinclined to do so. So even if a couple were
able to "convert" their marriage to a civil partnership,
they would be unable to maintain the level of mutual support to
which they committed themselves in marriage, and on which they
have budgeted and planned throughout their marriage. This was
found to be unacceptable in the Goodwin findings quoted under
2a.
— The civil partnership proposals recognise
no in-law relationships with one's partner's family (described
under 2a) as a marriage does.
— For many the support of their local
church community is very important. The acceptance and blessing
of many church communities for the relationship would be withdrawn
if the individual decided to substitute a civil partnership for
their church wedding.
— A civil partnership defines a couple
as homosexual, a misconception that has long offended people who
have fought for their identity as transsexual, and one which certainly
misrepresents their spouses.
For these reasons it would be unjust to require
that one should "convert" one's marriage into a civil
partnership in order to gain full recognition of acquired gender.
The finding of the European Court of Human Rights, in the case
of Goodwin v. UK found that the right to legal marriage applied
to transsexual people, not the right to be transsexual as an alternative
to retaining one's marriage, or vice versa.
"At these (extremely difficult) times, our
marriage promises become very important to us, and give us reasons
to work through the changes in our relationship. If we have to
convert our marriage to a civil partnership, the feeling of continuity
and permanence would be removed, and the impetus to stay together
through difficult times would be much less.
"In addition to our feelings we have made
various decisions (legal, financial, child care etc) based on
the shared rights and responsibilities of marriage and fear that
a civil partnership will not be able to retain all of these in
every situation."
The proposal to deny full legal recognition
of acquired gender to someone who is already married is wrong
because:
(3) IT CONFLICTS
WITH THE
RIGHT TO
PRIVATE LIFE
AND RIGHT
TO MARRY.
It is to the credit of the Government that it
has proposed ingenious means to allow a transsexual person to
gain full legal recognition of their acquired gender, without
revealing the fact that they changed gender. A great deal of thought
has gone into this, and it fits the requirements of the findings
in the Goodwin case on privacy well.
But marriage is not private. It is a matter
of public record. Annulment is so uncommon that a public record
of it would strongly imply that one of the couple had changed
gender, and no one could convert their marriage to a civil partnership,
without a full gender recognition certificate.
So to require a change of marital status contravenes
the right to privacy that Goodwin and I v. UK upheld. The ECtHR
found that the UK government must honour both Ms Goodman's right
to privacy and her right to marry, not one or the other.
The Bill's present proposal is unacceptable
on grounds of compassion. Many transsexual people—and it
is believed to be the great majority—disappear quietly back
into society in their acquired gender, after the traumatic years
of transitioning. It would be unacceptable to this invisible majority
of transsexuals to require that they engage in a publicly recorded
act of annulment and thus sacrifice the degree of normality that
they have suffered so much to attain.
Section 14 "Prohibition on disclosure of
information" sub-sections (1) and (2) makes it an offence
to disclose a person's transsexual history. Yet this is exactly
what civil servants would be required to do if they were to process
a public annulment or a public conversion of marriage to civil
partnership. The parts of section 14 would become either meaningless
or unenforceable if a public change of marital status were required.
PRIVACY IN
MARRIAGE AND
IN CIVIL
PARTNERSHIP
There is already a strong case to be made that
both marriages and the proposed civil partnerships should be capable
of being transacted privately. Few couples would have a justifiable
case for privacy. It is undoubtedly less than one per cent of
such relationships. This minority of cases would include people
who would be in clear danger of murder if their marriage or sexuality
were known.
If the government were to require married transsexual
people to annul their marriages (possibly converting them to civil
partnerships) then we urge the government to recognise married
transsexuals as part of this small minority.
To permit privacy in marriage or civil partnership
it is necessary that the following contingencies must be catered
for in law:
— Anyone must be able to lodge an objection,
valid, or otherwise, to a marriage or civil partnership. This
provision is already in place as one's application to marry can
be made only at one's local registry office. (The same is proposed
for civil partnerships.) Registry offices keep "on file"
records of alleged impediments. So the mechanism to object effectively
is in place already.
— The couple may need to prove their
legal relationship for certain purposes. To this end they will
have a certificate of their relationship (marriage or civil partnership).
— If it was suspected that the certificate
was forged, the couple would have to be able to give written consent
to checking their details on the central register. This would
also apply where public or private bodies needed to confirm or
check the status of the partners with the partners' consent.
— Certain public and private bodies
would need to investigate the legal relationship of an individual
without their consent. In the case of Police, immigration, tax
authorities or insurance companies, limited information could
be supplied on a need-to-know basis, with the legal requirement
to restrict its use and access to it.
The introduction of privacy to marriage and
civil partnerships, in extreme cases appears to be a viable option.
So we would urge that this should be considered as a requirement,
if gender recognition were made dependent upon annulment of marriage.
The Government proposes to start recording all
new records of marriages electronically by 2004. This lends urgency
to this point. However the current proposal is that while the
couple's occupations and addresses will not be public, the names
will be accessible via the Internet. It is not simple to search
public records in only one name. However the ability to identify
a record by two people's names, will make this information accessible
with great precision and very little difficulty.
However, we propose a better way forward.
PROPOSAL
The Bill has been carefully thought out to allow
a couple to avoid the sensitive issues of filing for divorce.
It has also avoided defining all current transsexual marriages
as null, with the consequent loss of legal and financial protection
for all involved. But the Bill puts the onus on the transsexual
person to change their marital status to fit legislation that
they could not have foreseen when they planned and provided for
their future security.
In the Goodwin case, "The Court did not
underestimate the important repercussions which any major change
in the system would inevitably have . . . these problems were
far from insuperable." The "Court considered that society
might 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."
Section 3(3) of the Bill addresses the issue
of an existing marriage of someone who is no longer fully of the
opposite gender to that of their legal spouse. This last kind
of marriage arises as a result of "the conflict between social
reality and law" (Goodwin findings under "Article 8",
first paragraph).
A similar position occurs over intersex people.
There are over 80 distinct medical diagnoses of the intersex condition.
This condition has not, we believe, been cited as an impediment
to legal UK marriage. Neither is it found necessary to recognise
the condition on birth certificates. Intersex people do not require
special modifications to the marriage laws, nor certificates to
give them legal status.
We urge the Government to allow existing marriages
of transsexual people to be recognised in the same way, just as
they are now, and to treat transsexual and intersex people with
the same respect; to quote from Christine Goodwin's case, to allow
them equally "to jive in dignity and worth".
However, if the government still finds it necessary
to mark existing transsexual marriages alone with a special certificate,
then the Bill proposes a sound basis for issuing an "interim
gender recognition certificate" for transsexual people who
retain their marriages. The criteria of eligibility for this "interim"
certificate could apply to a "gender recognition marriage
certificate" instead. Equally uncommon, this certificate
would award legal recognition to these exemplary marriages, which
are all too rare, and which survive to support spouses and their
families, in spite of the exceptional stresses imposed by gender
change.
This avoids breaching the right to privacy of
transsexual people. It would avoid denying the legal and financial
support that they have built up for their dependants, their spouses
and themselves. It is realistic. But above all, it is compassionate.
We believe that this may be a just, legal and
more satisfactory solution to this problem.
11 September 2003
1 The terms "gender", "acquired gender",
"full recognition" of gender change, "full gender
recognition certificate" and "interim gender recognition
certificate" are used in the senses used or defined in the
Bill. The "right to private life" and "right to
marry" refer to the European Convention on Human Rights and
to the finding of the European Court of Human Rights in the case
of Goodwin and I v UK. Back
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