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Wednesday, 2 April 2014

EVERY PERSON HAS RIGHTS.

EVERY PERSON HAS RIGHTS.

I am often seen as being 'Press for Change' - but in fact I am only a grassroots activist like anyone else who volunteers for PFC. However I am also a trained and experience legal academic whose job it is to read case law and legislation and work out exactly what it requires from people.

PFC ‘s position on any spousal veto would be that it was an appalling intrusion on the civil liberties and hard won Human Rights of trans people.[Note 1]

PFC also takes the position that whilst fighting for the rights of ALL trans people, PFC will do nothing to remove the rights of any socially and legally disadvantaged group.[Note 2]

PFC is a diverse set of individuals with a grassroots approach to campaigning – as far as I am personally concerned the issue is not that people disagree with my interpretation of the law, rather I am totally open to being shown a different understanding of the law.

However, I have read the relevant parts of the Marriage (Same Sex Couples) Act 2013 in full and my view (as a lawyer) is that many people have acquired a significant misunderstanding of what the amendments to the Gender Recognition Act 2004 by the Marriage (Same Sex Couples) Act 2013 actually do, and what they mean. It is well worth reading what the legislation says in full in Schedule 5 of the Marriage (Same Sex Couples) Act 2013 at http://www.legislation.gov.uk/ukpga/2013/30/schedule/5/enacted

WHAT DOES SPOUSAL CONSENT IN THE MARRIAGE (SAME SEX COUPLES) ACT 2013  ACTUALLY DO?


The Marriage (Same Sex Couples) Act 2013, Schedule 5 and the Marriage and Civil Partnership Act 2014 (Scotland) Schedule 2 asks a trans person is in a pre-existing marriage to provide evidence with their application for a Gender Recognition certificate that their:

“spouse consents to the marriage continuing after the issue of a full gender recognition certificate”[Note 3]

This should be in the form of a Statutory Declaration of Spousal consent. To avoid the possibility of fraud, on receiving this the Gender Recognition Panel, , must give the spouse notice that it has been submitted to them.

If the gender recognition application is successful, the Gender Recognition Panel, must again notify the spouse of the issue of the full Gender Recognition certificate.[Note 4]
What is clear, on reading the Acts is that the spouse is simply being asked to consent to their marriage continuing.

CAN A SPOUSE VETO A GENDER RECOGNITION APPLICATION?

No, they cannot.


If the non-trans spouse doesn’t consent to the marriage continuing if it is to become a same sex marriage, the current form of marriage will continue. It is still the marriage of a husband and wife, not a wife and wife. Their marriage would continue to be a marriage that was made under the old version of our marriage law, with vows which demanded that the person promise that they were not getting married to someone of the same legal sex.

It is also quite clear that a spouse cannot veto an application for a Gender Recognition certificate.

A trans person who is married can still apply for a Gender Recognition certificate. If their spouse will not provide the required consent for the marriage to change, then the trans person can still choose to obtain their legal recognition by choosing to end the marriage either by seeking a divorce and after the divorce applying for a Gender Recognition certificate, or by applying for an interim Gender Recognition certificate and then having the marriage annulled. Immediately the annulment decision is given, the court will give them their full Gender Recognition certificate.  

WHY DO THESE PROVISIONS EXIST?

These provisions are not an attack on the civil liberties or Human Rights of Trans people. They are there to protect the rights of the spouses of trans people.

They do not give spouses any right of veto over a person’s application for a Gender Recognition certificate, rather they are designed to ensure that spouses are protected from unscrupulous actions by a spouse who is applying for a Gender Recognition certificate.  The provisions ensure the spouse knows what is happening, and ensure they are happy with the marriage continuing even though it is to be transformed into a same sex marriage.  

Both of my grandmothers were deserted by their husbands during WWII. My maternal grandmother was to find out that her husband had remarried, twice, without divorcing her. When he was prosecuted, she was so ashamed that she developed a lifelong mental health problem that ultimately resulted in her refusing food and starving to death. Three families, all involving children were wrecked because he refused to live in the real world rather than the fantasy one of his own making.  Imagine if my maternal grandmother had found that not only had he created two other families, but that her husband was  now a 'she', and as far as the law was concerned she was a lesbian now living in a same sex marriage.

I will repeat what I have said before: In PFC we see what might be referred to as the 'blunt' end of the trans community. I meet trans women (mostly) who have left their original spouse without divorcing them, and got married as a member of their new gender role. And they have no intention of telling their wife that they are now a woman, and they have no intention of telling their 'husband' that they are not legally female,  nor that their marriage is neither legal (because they are still married as a legal male), nor that they are legally male. They contact PFC when they realise the facade of lies is about to collapse. Whilst we do our best to support them through what is going to be a very difficult time, we wish we could have stopped them creating this fantasy mess in the first place.

I have no doubt whatsoever that without the requirement for spousal consent some trans people (probably only a very few) will apply for an obtain a Gender Recognition certificate without telling their spouse that their marriage is going to be changed to a same sex marriage. By not providing for spousal consent the state would be creating the risk of a dreadful intrusion on the civil liberties and Human rights of the spouse.

I go back to my original points - any spousal veto would be an appalling intrusion on the civil liberties and hard won Human Rights of trans people and we would do everything we could to prevent that occurring. However, women have long been a socially and legally disadvantaged group, especially within marriage. The very least we can do is support their right to know when they are married and what sort of marriage they are in. If they find that change to be unacceptable to them, then the very least the law should do is give them the facility to insist the marriage is ended whether by divorce or by annulment.

I am sorry if people  feel they cannot support this position, but I could not support a legal framework which allowed women potentially to have their marriage status changed without their consent.

The Marriage (Same Sex Couples) Act 2013 really does NOT provide a spousal veto. Rather it ensures spouses talk to each about whether they are (ultimately) content for the marriage to change into a same sex marriage.

If they are not happy for that change, then they really do have to look at the writing on the wall – the marriage is over, and they need to think about formalising that position by recognising each other’s rights.

I would suggest anyone who is unsure what the legislation actually says that they go to http://www.legislation.gov.uk/ukpga/2013/30/schedule/5/enacted and read Schedule 5 in full.

NOTES

[[1]] PFC’s Mission statement, s4.04 states the PFC Campaign “work towards achieving the following rights and liberties for all trans people in the U.K”:  The right to marry in the individual’s preferred gender role.
[2] Rule 3 of Press for Change’s Code of Conduct (2001) states:  ‘We are always very careful to act so that in improving the rights of one group, we don't damage those of another’. Rule 8 states: ‘Press for Change RESPECTS all other people and we never attack other minority groups’.
[3]  The Gender Recognition Act 2004 s.3, ss.(6b)(a) as amended by The Marriage (Same Sex Couples) Act 2013, schedule 5, s.3, ss (6b)(a)
[4] The Gender Recognition Act 2004 s.3(a) as amended by the Marriage (Same Sex Couples) Act 2013, sch.5

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