Joint Committee On Human Rights Written Evidence

47.Submission from Janet and Sarah Wood

1.   Introduction

  We are providing evidence in connection with the draft Gender Recognition Bill dealing with the amendment of the birth certificates of transsexuals to reflect their new gender role. We do hope that the Committee finds time to consider our evidence.

2.   Brief Summary

  It is important to stress that we wholeheartedly agree with the main thrust of the bill, subject generally to the sort of common sense amendments proposed by the organisation Liberty in its response to the Joint Committee on Human Rights. To summarise our main concern, we are very worried by the Bill's treatment of existing marriages, which we feel lacks both reason and humanity. This note, therefore, is solely about the proposals for existing marriages.

3.   Background

  We are a couple married in 1980, now living as Janet and Sarah Wood. Sarah is a transsexual, now living and working as a woman. She can recall experiencing gender identity difficulties throughout her life, but these caused her increasing anguish through the 1990's. Ultimately, on what we considered to be the verge of a nervous breakdown, she decided to seek help and support in taking the momentous step of living in society as a female. She finally achieved this at the end of April 2001, since when she has lived and worked as Sarah, aiding her gender transition through cosmetic surgery and hair removal to give her the confidence to succeed in her new gender role. She is also lucky enough to be receiving the support of the NHS in counselling, the administration of female hormones, the provision of speech therapy, and is on the waiting list for gender reassignment surgery to complete her transition to the female sex as far as she is able.

  3.1  Sarah feels privileged to have had the unequivocal support of those around her, in her family, friends and work. As a result she has been able to continue to lead a full life as a responsible and happy member of society. She feels the greatest privilege of all (and rare for transsexuals, given the pressures that result from gender transition) is that she has retained the support of her marriage partner Janet through all this. Our bonds of marriage and mutual love and respect have, if anything, been more strongly forged as a result of all we have been through in the last five years.

4.   Consequences of the new Bill

  We think the draft Bill will be very acceptable to the majority of transsexuals we know who are not in existing marriages. From a reading of the draft bill we have no doubt that Sarah would qualify to have her birth certificate amended to achieve an important form of official recognition of her female role, as well as being able to avoid the embarrassment caused on any occasion that requires the production of her birth certificate. Under the current proposals our existing marriage will preclude this as Sarah can be only be granted full recognition under the new law if she presents evidence that our marriage is dissolved or annulled or that Janet has died.

  4.1  It seems therefore that we would have to sacrifice our marriage if Sarah's birth certificate is to be amended. While granting with one hand one human right, the official recognition of Sarah's new gender by way of an amended birth certificate, the other hand seeks to withdraw another human right, to continue our marriage of over 23 years. This is despite the fact that we take the substance of our marriage vows far more seriously than do many couples these days. We cannot therefore see this as an outcome that will satisfy the ECHR.

  4.2  It is also a concern that, once the Gender Recognition Bill comes into force, that the certificate obtainable under it will in practice become the test of whether a transsexual is generally entitled to be treated as a member of their new gender. For example, a transsexual only recently lost a case in Court (involving Consignia plc) that denied her the right to use the ladies toilets until she had undergone gender reassignment surgery. With the bill in place, this harsh criterion may be somewhat ameliorated by the lesser conditions requited to obtain a certificate, but this would still leave many in limbo. It is difficult to convey the feelings of indignity that a transsexual suffers when their basic rights such as this are always at risk of being publicly challenged. The use of the certificate in this way could make it necessary for Sarah to seek a certificate notwithstanding the risk to our marriage.

5.   Reasoning Behind The Proposed Treatment of Existing Marriages

  We understand from correspondence with the Department of Constitutional Affairs that "the decision to require that existing marriages should be annulled was not an easy one to make" but we cannot find any clear explanation of how this decision was arrived at. This makes it difficult for us to challenge the basis for the decision, but we have nevertheless considered the following possibilities.

  5.1  One possibility is that the decision was based on maintaining the existing legal status quo, so that any marriage between those of the same sex must always be totally forbidden, even where this is solely by virtue of a non retrospective deeming provision such as the Gender Recognition Bill. But surely this bill is about changing the law? If Parliament can change one aspect, it can surely change another. We cannot therefore see why, on this basis alone, it might be considered impossible to make an exception from the single sex marriage ban for those existing marriages caught by these provisions.

  5.2  The decision may be derived from whatever motivates the existing policy on marriage. We do not know if the motivation to strictly adhere to this policy stems primarily from religious reasons or from some wider notion of the need to maintain the "traditional marriage between persons of opposite biological sex" in order "to protect marriage as the basis of the family" (phrases from the Report of the Interdepartmental Working Group on Transsexual People). We can't imagine in today's diverse society that this decision can be purely based on religious concerns—indeed why should religious concerns be the arbiter of whether or not a marriage of two atheists persists? If protection of the institution of marriage as the basis of the family is the motivating factor, then we are a loss to see what threat such marriages as ours pose to the overall fabric of society.

  5.3  A further possibility is the worst of all, that the decision was based upon the view that there are so few people affected by this provision that they simply do not matter, and that our welfare is de minimis in the affairs of state. In our view, our minority position should work in the opposite direction. The number of marriages that survive this trauma must be so few that we can be regarded as sui generis. We suspect there are more than the 36 couples quoted by Press for Change in their report to the Committee (they certainly do not know of our marriage for example) but probably there are no more than 200 nationally at most. Sarah works in the field of tax law and is well aware that taxation is just one area of UK law that is riddled with provisos and exceptions to take into account special cases, and beyond that there are many extra statutory concessions that deal with equitable concerns that the law would otherwise disadvantage. So why cannot the Gender Recognition Bill provide an exception to avoid the disadvantage to existing marriages by allowing these to continue despite the re registration of the transsexual spouse's birth certificate?

6.   What is a marriage?

  Another comment in correspondence with the Department of Constitutional Affairs attempted to reassure us "the Government is not about undermining strong and stable relationships", going on to say that "It is the marriage that cannot continue, not the relationship." We were extremely concerned by such semantics from those civil servants responsible for drafting this bill that seems to so easily dismiss the marriage as an inconsequential aspect of a relationship such as ours. Our marriage is in fact the core of our relationship, something that matters to us over and above the bundle of legal rights and obligations that go with it.

  6.1  The Department also referred to the possible alternative of the proposed civil partnership scheme but, to be honest, we regard the notion of a civil partnership as a poor relation to marriage (which it may well turn out to be), a view only encouraged by the lengths to which the Government has gone to differentiate it from marriage. We ARE married, and we value our marriage, not merely for its legal relationship, but for the degree of commitment we have made to each other. By taking a profoundly legalistic view of marriage in framing the bill, the state of marriage is devalued. Marriage, for some of us at least, is primarily about our human relationship and only secondarily about our legal relationship, very important though that is.

7.   Impact of the Bill

  We also think that the impact assessment for this Bill is deficient as it makes no mention whatsoever of the proposed treatment of existing marriages, nor of its impact on those admittedly few transsexuals (and their spouses) affected by this. We note however that it does go into some detail about the need to avoid costly and unnecessary legal challenges. We simply cannot understand who stands to benefit by penalising people in our position in this way, nor who stands to lose if the Government or Parliament allow the exclusion we are asking for. To enact this measure as it stands will be to do so in full knowledge of the consequence that it will leave the Government open to future human rights challenges from people in our position.

8.   Inconsistency of Treatment

  The bill provides for an exemption for Anglican clergy from their obligation to marry people if their legal gender derives from the provisions of the Bill. We have no objection to this—we feel that such questions should rightly be a matter for the church and it members.

  8.1  What we cannot understand is why the bill sees fit to grant an exception to the Anglican clergy to refuse to marry a transsexual in their new gender, but then signally fails to provide an exclusion to allow the survival of existing marriages. How can the bill justify denying us our marriage should Sarah change her gender, but then allow the Anglican clergy to decide not to accept this gender change legislation whenever they feel like it. lf one party can have an exclusion in the bill, then why not the other?

9.   Conclusion

  This evidence amounts to a plea to the committee to see fair play for people in existing marriages like ours. We are two people, with a long and generally very happily marriage that has been forged in the trials of gender transition. The achievement of a female birth certificate will represent a logical end to Sarah's long and difficult journey, but why should Sarah's impending right to a new birth certificate be compromised by, or fatal to, our marriage?

  9.1  If the draft bill is enacted as it stands then, subject to the approval required, Sarah will become entitled to a female birth certificate. With or without that certificate, society in general will still perceive us as two women living together in some manner. But if she applies under her new right to amend her birth certificate, this could deny us the right to remain married. What on earth does society gain by forcing people in our position to make such a stark choice between one human right and another in such a way, and in threatening a strong marriage to underpin many weaker ones?

10.   Submission

  We would be extremely grateful if you could therefore reflect upon the need to amend this aspect of the legislation. In our opinion the most obvious thing to do would be to provide an exception for those admittedly rare marriages that make it through a gender identity crisis, to allow transsexuals like Sarah to change their birth certificates AND retain their marriage status. It would be all too easy for the lawyers to dispassionately dispose of our relationship and others like it as a matter of legal tidiness.

13 October 2003

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