The Same Sex Marriage Bill And Gender Recognition

Flora Renz
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Two steps forward, one awkward shuffle to the side: The Same Sex Marriage Bill and Gender Recognition


Let’s talk a bit more about the Same Sex Marriage Bill, because that clearly is a topic that has hardly been covered in the media. The bill, if it passes, does many great things. For example we can finally stop trying to figure out if ‘civilly partnered’ is actually a grammatically correct equivalent to ‘married’. The bill also does many things that at first glance look like boring administrative procedures that are only going to be of interest to crazed academics and those of us with chronic insomnia and a love of legal documents. Hidden among those less newspaper headline worthy amendments is Schedule 5 of the Same Sex Marriage Bill.

Schedule 5 amends the Gender Recognition Act, i.e. the piece of law that allows you to legally change your gender. At the moment, if you are married or in a civil partnership when applying for a Gender Recognition Certificate (GRC) you will be issued with an interim certificate and you then have to annul your existing relationship. There currently is a fast-track procedure which allows you to convert one kind of legal relationship into the other on the same day but people are still quite rightly critical of the fact that they have to formally dissolve what may be a perfectly happy relationship.

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Obviously equal marriage would be the perfect solution to this particular issue as a mandatory annulment of your marriage is not necessary if everybody can get married. To reflect this, the Same Sex Marriage Bill does indeed remove the existing divorce requirement and even allows for a couple in a civil partnership to simply stay in civil partnership if they are both transitioning at the same time. So far so uncontroversial for anybody but the occasional Daily Mail columnist.

However, things get a bit more dubious as soon as you move on to paragraph 2 of schedule 5. This introduces a new piece of evidence which anybody applying for a GRC has to provide. If the Same Sex Marriage Bill passes in its current form, applicants who are in a legally recognised relationship will have to also provide written consent from their spouses declaring that they wish their relationship to continue. Those who do not do so can only get an interim certificate which is only valid for 6 months, under the assumption that they will dissolve their relationship in that time.

Okay, so the best case scenario is that this consent form is merely another annoying document that you have to provide but that will at least mean that you do not have to formally dissolve your relationship anymore. But if you are in a relationship that has broken down and you are in the middle of an unpleasant divorce battle, possibly involving a dispute about children and custody, then you are, to use the official legal term, completely screwed. You will just have to wait for your divorce to be finalised, which can take a shockingly long time and always feels at least twice as long as that, before the government will allow you to change something which at that point really has no impact on your (ex-) spouse. Sounds great, right?

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Well the bill also includes another great amendment which says that even if you provide written consent from your partner indicating that they want to stay in the relationship they will still be officially notified once an application for a GRC. Apart from the fact I dread to think what that particular letter template will read like, this is also worrisome for another reason. Why do law makers think anybody needs to be notified about their partner’s transition? Unless lawmakers assume we all have the memory of a concussed gold fish and simply forgot the consent form that has already been submitted, there simply is no good reason for this.

There are however two possible bad reasons for this: The first could be that politicians simply do not understand how transition and the GRA actually work. They assume it is a quick and easy process like getting a new passport at the post office (rather than something that takes years and generally involves drastic physical change) and so a spouse might one day wake up and realise they are now legally married to someone of the opposite/same sex and had just never realised that this was going to happen (despite writing that pesky consent letter). The other option is even less cheerful: Lawmakers do not think that marriage between straight and gay people is entirely the same thing.

If marriage was truly equal for everyone then there is simply no reason why you need to be notified that your relationship status might change, because it does not in fact change. If, however, politicians still believe that sexual orientation makes such a fundamental difference to the nature of your relationship then getting a written “warning” in the mail makes perfect sense. Essentially that letter is saying ‘OH MY GOD YOU ARE ABOUT TO BE TURNED GAY, ARE YOU SURE ABOUT THIS??’ This does fit pretty well with court cases from before the Gender Recognition Act was passed, where judges loved to discuss at length about how trans people were trying to con their spouses into being gay married.

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Obviously this is complete speculation. Sadly, politicians rarely admit to introducing a particular piece of law because they don’t like gay people or trans people. And many laws do indeed contain pointless rules that have no actual purpose and just make everybody’s life that little bit more difficult without having any particularly malicious intent behind them. But the fact that this has received little to no mainstream media attention and as such politicians have not been forced to talk about this at all has me a little worried. The requirement for consent from your spouse might just be a badly thought out administrative requirement but the introduction of a written notification for spouses has some very real and worrisome implications for everybody who considers this bill an unqualified success. How much does the government actually believe in equality for LGBT people?

About Flora Renz

Currently compensating for all my failings as a PhD student by eating my way around London and bribing my entire department with baked goods. Still unsure if I want to be Nigella or marry her. Definitely want to live in a gingerbread house. Think Beetroot is an abomination.