23.Submission from C and D[52]
1. We submit this evidence for consideration
in an individual rather than a corporate capacity, as a married
couple directly affected by the proposal that married couples
should annul their marriages before the transsexual partner can
obtain a birth certificate in their acquired gender, key to their
rights in that new gender.
1.1 Although marriages are not permitted
between people who are of the same sex at the time of the ceremony,
so long as the state can offer no equivalent "partnership
agreement" to gender-reassigned people and their spouses
who were lawfully married at the time of their marriage, it should
not oblige parties to a such a marriage to dissolve it so that
one of the parties can acquire their human right to respect for
their private life.
2. We believe the draft bill is wrong to
require transsexuals who are married to annul their marriages
before they can obtain a birth certificate in their acquired gender:
2.1 The requirement to dissolve a marriage
is inconsistent with the rest of the thinking in the draft bill,
wherein all previous obligations are maintained after gender change
and all the results of such a marriage (for instance, parenthood
and parentage) are held good.
2.2 The requirement to dissolve a marriage
is not a prerequisite for treatment leading to physical gender
reassignment and therefore it should not be a prerequisite for
the issue of a full gender recognition certificate and a revised
birth certificate.
2.2.1 While we understand that the NHS demands
divorce as a prerequisite to irreversible treatment for gender
dysphoria, we know from our own experience that NHS consultants
in private practice view each case on its merits, and that the
requirement to secure a signed statement of informed consent from
a spouse is an allowed alternative to providing proof of divorce.
2.2.2 We know personally of two such cases,
our own and another, where to preserve their marriages and to
avoid the publicity of court hearings (imagine: "Mrs X vs
Ms X, a petition for divorce") the parties paid for the medical,
surgical and psychiatric aspects of treatment to be carried out
privately in the UK, at considerable expense.
2.3 The sufficient purpose of marriage is
that two people should be a comfort to one another, and in consequence
they accept certain responsibilities and duties and they receive
certain benefits and favourable treatments. Transsexuals who are
obliged to annul will forego their rights to those benefits (arising
from legal and moral obligations on their spouse) and to favourable
treatments of tax, inheritance, and rights of next of kin; annulment
constitutes an unreasonable price for their acquiring human rights
in their acquired gender.
2.3.1 The state should not require them
to set aside their moral and financial duty to care for each other
(eg in the event of sickness, even when that sickness is gender
dysphoria), and indeed and rightly a court would not allow a final
separation to obviate the obligations of one towards the other.
Since the obligations which came through marriage cannot in practice
be set aside, the state should not seek to deprive the parties
to a marriage of the favourable treatments (eg tax, inheritance,
rights of next of kin) which also come through marriage, while
they are willing to continue their marriages.
2.4 The state does not otherwise require
the dissolution of the marriages of persons who are lawfully married
as a precondition of their full enjoyment of their human rights,
except in so far as they wish to remarry.
2.4.1 It is inconsistent and unreasonable
for the state to do so following a person's treatment for gender
dysphoria, especially given the underlying complexity of the definition
of sex and the commonplace (though infrequently found) possibilities
of a mismatch between sex and gender, and the consequent possibilities
of same-sex (eg where androgen insensitivity syndrome leads to
someone with XY sex chromosomes being issued with a birth certificate
stating them to be female, and they later lawfully marry someone
else who carries XY sex chromosomes but whose course of anatomical
development was not atypical and who therefore holds a birth certificate
stating them to be male) and of same gender marriages.
2.4.2 It is also pertinent that the state
already permits same gender marriages, where a person who has
undergone gender reassignment may lawfully marry someone of the
same gender so long as the birth certificates show one party to
be male and the other female.
2.4.3 If "same sex" marriages
can be tolerated because they are lawful when entered into, and
"same gender" marriages can already be undertaken, the
state should not make a problem for parties to marriages lawfully
entered into when, as a result of one party's treatment for gender
dysphoria, they become "same gender" and "same
sex" marriages.
2.5 When the cause of a departure from the
heterosexual marital norm is known and the instances are infrequent,
exceptional cases will not set aside the general rule (that marriages
are usually contracted between two sexes and two genders).
2.5.1 Allowing the circumstances which would
generate a same sex marriage to be unusual and confined to the
instance of gender dysphoria leading to the issue of a changed
birth certificate, one can hardly envisage that other people would
marry, one of them feign gender dysphoria, manage to deceive two
experienced consultant gender psychiatrists, and go through with
treatment usually leading to surgery, in order to arrive at a
same sex marriage. Allowing this exception surely will provoke
no mass imitation.
2.5.2 The state therefore does not need
to coerce those people who constitute "the exception"
(eg by denying them their human rights until they conform to the
norm) in order to prevent such exceptions from becoming the norm.
2.6 We can foresee that annulment might
not be a reasonable requirement in instances where the parties
to a marriage affected by gender dysphoria have lost touch with
each other, which we understand often to be the case; it would
be unreasonable to prevent the issue of a gender recognition certificate
because the transsexual party therefore could not serve papers
on the other, and equally unreasonable for a transsexual to have
their marriage annulled by their spouse unawares.
2.7 We can foresee that the requirement
to annulment may not be reasonable where a marriage has been contracted
in another state between a UK national and a national of that
other state; we wonder whether such a state would regard a valid
marriage as dissolved because the transsexual, English partner
had applied to an English court. We know of one instance in Australia
where such a dissolution would be required for the British, transsexual
partner to acquire a birth certificate in her new gender. Incidentally,
because she holds a British birth certificate, she cannot avail
herself of the gender change procedures available to Australian
citizens.
3. We believe the draft bill is wrong to
require married partners of transsexuals to have their marriage
annulled before their spouse can obtain a birth certificate in
their acquired gender:
3.1 Partners of transsexuals marry them
in good faith and often in shared ignorance of their underlying
gender dysphoria, and at the point of marriage they adopt a moral
duty to care for them in sickness, even when that sickness is
gender dysphoria and when the treatment for that illness leads
to gender reassignment. Innocent parties to such a marriage should
not face annulment in order to enable their spouse to acquire
a birth certificate appropriate to their acquired gender.
3.1.1 In our case, both of us were aware
at the outset that one of us suffered from gender dysphoria (though
neither of us knew what it was called, where it might lead, and
that it might be treated). There was no dishonesty in our relationship
about the feeling of dysphoria; when the gender dysphoria became
acute some long while after we were married we wanted to preserve
our marriage. We have maintained our marriage through and beyond
treatment and gender reassignment, neither regarding the illness
of one party with gender dysphoria as grounds for annulment. We
can not see why the state should require one of us to have her
marriage annulled by the other in order that one party to the
marriage can be recognised fully in her acquired gender.
3.1.2 We know of another case where a couple
have maintained their marriage through treatment and after reassignment,
neither regarding the illness of one party with gender dysphoria
as grounds to dissolve their marriage. They too regard their marriage
vows as binding on them and, were annulment required, they would
be prevented from going forward with the "gender recognition"
process to the point where the right to privacy for one of them
in her acquired gender was secured by the issue of a revised birth
certificate.
3.2 Persons who have managed to cope with
the gender reassignment of their partner within their marriage
should not be obliged to go through the anguish of annulment and
the breaking of their vows so their spouse can acquire their human
right to respect for their private life. It should not be the
business of the state to inflict such hurt.
3.3 In consequence of marriage, both parties
accept certain responsibilities and duties and they receive certain
benefits and favourable treatments. The spouses of transsexuals
who are on the receiving end of an annulment will also (see 2.3)
forego their right to those benefits (arising from legal and moral
obligations on their spouse) and to those favourable treatments
of tax, inheritance, and rights of next of kin; the proposed price
(annulment) for their transsexual spouse's acquisition of human
rights in their acquired gender constitutes an unreasonable infringement
of their own rights.
3.3.1 In our case, where our marriage has
persisted through full gender reassignment, one party, after gender
reassignment, now maintains the other in her household at her
own expense due to her spouse's advanced age and associated infirmity.
Clearly it is of benefit that the one party is honouring her marital
obligations to the other, and clearly the party benefiting had
reasonable expectations that marriage could lead to such care.
3.4 We can foresee that annulment might
not be a reasonable requirement in instances where the parties
to a marriage affected by gender dysphoria have lost touch with
each other, which we understand often to be the case; it would
be unreasonable to allow an annulment when the non transsexual
party to a marriage was not even aware of proceedings, just as
it would be unreasonable to prevent the issue of a gender recognition
certificate because the party seeking annulment could not find
the other to serve papers.
31 August 2003
52 The authors of this memorandum provided their names
and addresses but asked for them not to be published Back
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