June 22nd, 2013


Unequal Marriage

One of life's little ironies has come into sharp focus through a conversation on a friend's Facebook page.

Back in 2004, the Gender Recognition Act introduced Gender Recognition Certificates to an eager world (or at least the UK). The purpose of these documents was to allow trans people to establish their gender for all legal purposes, even including getting a new birth certificate. Barring a few concessions to the CofE, who got their surplices in a twist over the idea of marrying trans people in church, it was pretty comprehensive, and accordingly the bar for obtaining GRCs was set fairly high. They could be obtained only after two years of living full-time in one's acquired gender, and then only on application to a gatekeeping Gender Recognition Panel, who would consider each case individually.

In 2010 came the Equality Act, which ironically made life rather less equal for trans people by singling them out as the one "protected group" against whom it was specifically permissible to discriminate. And now, three years later, we have the Equal Marriage Bill, which has the excellent aim of allowing same-sex marriage, but also some unfortunate consequences for trans people which no one in the Government (such is their keenness to get the Bill through) is inclined to address, lest the LGB boat be rocked.

To explain, I need to go back to another anomaly, which has actually been in place since the 2004 Act. This is the provision that if a person doesn't tell their prospective spouse before marriage that they were originally assigned a different gender, that is grounds for annulment. That may sound very reasonable - after all, it's the sort of thing you'd want a spouse to (let you) know, right? But let's put it in context by looking at a few of things you cannot get an annulment for failing to disclose. For example:

* That you are infertile
* That you have convictions for child rape
* That you killed your last six husbands/wives with a pitchfork

None of these things is sufficiently serious to warrant annulment, should your fiance(e) happen not to mention them before tying the knot. In fact, being trans is the only non-disclosure that renders your marriage void.

Now, in a perfect storm, all these elements are coalescing to make legislative nonsense of the Equal Marriage Bill, at least as far as trans people are concerned. The disclosure provision I describe above was a kind of afterglow from the Matrimonial Causes Act 1973, which states that a marriage can be annulled if both parties are the same sex. Under the Equal Marriage Act, of course, marriage is open to all sex combinations; however, trans-panic is alive and well, and for this reason the Bill as it currently stands means that trans people with GRCs - but only those with GRCs - will be vulnerable to having their marriages annulled if they do not disclose the fact. In other words,the very piece of paper that was meant to put them on a footing of legal equality with cis people, the one they had to jump through so many hoops to get, is the one being used to discriminate against them. Ironic, no?

I am neither married nor do I have a GRC, nor (if I had one) can I easily envisage circumstances in which I would not wish a prospective spouse to know it, so I'm not directly affected by all this - but as a study in the unintended effects of piecemeal, compromised legislation informed by prejudice, it's both depressing and instructive.