Spousal veto

No VetoAs things stand in England/Wales, same-sex couples cannot marry, they can only enter into a civil partnership. And different-sex couples can only marry, not enter into a civil partnership. (Since the law here only recognises two genders, F and M, I’m stuck using this gender-binary language in order to discuss this issue.) This is all set to change, with the passing of the Marriage (Same Sex Couples) Bill through the House of Lords a couple of days ago, meaning that this is set to become law at some point soon, and any couple should be able to marry. But of course, it’s not that simple for trans people.

Until this becomes law, if a trans person wants to marry someone, they have to be legally the “other” sex from their intended spouse, otherwise they have to settle for a civil partnership (and vice versa). Changing your legal sex, for the purposes of getting hitched, requires a GRC (Gender Recognition Certificate). When someone who is married (or in a civil partnership) transitions and wishes to obtain a GRC , things start to get complicated. Until the new law passes, a married trans person would have to divorce their spouse and then enter into a civil partnership after obtaining a GRC (and vice versa).

You’d think that once the new law passes, this would all become moot. And it should. In an ideal world, where anyone can get married (or enter into a civil partnership) gender regardless, all that would be meaningless. But two things prevent it being that straightforward.

One, obviously, is that it’s still not going to be possible for different-sex couples to be in a civil partnership, so a couple that’s already in one when one spouse transitions will still have to divorce, and then get married after the issue of the GRC. There is an amendment in the new law which will float a discussion of civil partnerships for different-sex couples (at some point in the next few years, ho hum), but at least it’s in the air that this is needed.

The other, and more insidious, issue as far as trans spouses are concerned, is the amendment that’s being termed the Spousal Veto. This is the amendment that requires a trans spouse to get their spouse’s permission before obtaining a GRC. The stated reason for the necessity of this amendment is that it is “unfair” for a spouse to suddenly find themselves in a same-sex marriage without their consent. This is problematic for all kinds of reasons. One is that it clearly and implicitly maintains the idea that marriage is absolutely not “equal”, if the right of someone not to be in a same-sex marriage is being upheld in this way  – it’s pretty inherently homophobic, as well as transphobic, at heart.

The main problem, for me, is that it is giving one spouse legal power over the other. In practice, what it’s going to mean is that a spouse who’s not happy that their partner is transitioning has the power to prevent them from being their true gender, unless they divorce. It also means that estranged spouses have the power to prevent their trans spouses from fully transitioning out of spite, should they wish to (and there is evidence already that this goes on a lot).

I do appreciate that for someone to have their spouse transition can be devastating, and often does lead to the breakup of marriages/civil partnerships. But by the time someone can apply for their GRC, they are required to have been living full-time in their “new” gender for two years, and I would think that’s plenty of “forewarning” to their spouse if they don’t wish to remain their spouse under these changed conditions.

To me, giving a trans person’s spouse this “right” to exercise power over their spouse is as absurd as it would be, for example, to have a law requiring them to have their trans spouse’s permission to divorce them. There should not be laws that give people power over each other in this way, at all. It’s a clear statement that the law considers a cis spouse’s rights of more value than a trans spouse’s rights. This is unacceptable.

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