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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