Trans activists were left ‘despairing and angry’ at England and Wales’ equal marriage bill saying they have been betrayed by the British government and LGBT allies.
The bill now has to pass through the House of Lords where it will face opposition but the government appears determined to ensure it passes.
Trans activists say government proposals went a little way to fix what were widely seen as anomalies in the treatment of trans individuals when it came to marriage.
But plans were rejected to compensate trans people for ‘stolen marriages’, where a husband and wife in a loving relationship are forced to divorce when one transitions.
And the government failed to use the bill to rectify other aspects of already existing marriage law that trans people see as ‘offensive’.
This includes allowing husbands or wives to void marriages if their partner fails to reveal part of their gender history when they wed.
The ‘stolen marriage’ issue arose in respect of the granting of gender recognition certificates (GRC’s) in line with the Gender Recognition Act 2004.
This allowed an individual for the first time to amend their birth certificate to align all aspects of their gender history for official purposes.
But since equal marriage was not available in 2004, an absolute requirement for obtaining a GRC was that individuals first divorce. They could then have a civil partnership, offering marriage rights to gay couples since 2005, if they wished.
This caused significant grief to those who had managed to hold on to their partner through the transition journey.
There was, too, an added practical problem: where an individual traded marriage for civil partnership, their spouse would lose all ‘survivor’s benefits’ – the bit of pension they would obtain by out-living their partner – accrued during the marriage.
So obtaining a GRC could cost a spouse tens of thousands of pounds in pension.
If the new marriage bill completes its progress through parliament, that anomaly will be cleared. Divorce will not be required to obtain a GRC. And couples translating an existing marriage to a new ‘protected’ marriage will not lose any pension rights.
However, as junior Equalities Minister, Helen Grant told the Commons on Tuesday night, no compensation would be paid to those individuals who had been forced to choose between marriage and GRC in the years since the passing of the Gender Recognition Act.
In addition the new bill means that, before obtaining a GRC, trans individuals in a marriage must obtain the consent of their spouse.
One trans activist has already said this breaches human rights.
According to Helen Belcher, a member of the UK Parliamentary Forum on Gender Identity: ‘Above anything else that can happen in a marriage – bankruptcy, life-changing surgery and name change – gender change alone will require spousal consent.
‘This is deeply troubling because abstract objections are put ahead of an individual’s human rights. It also ignores the reality of obstructive spouses which will leave some trans people stranded for years without gender recognition and nothing they can do about it.’
The government also refused to remove from marriage law the option for a partner to have their marriage declared void if their spouse failed to disclose the fact that they possessed a GRC.
This is not, technically, the same as failure to disclose other material facts relating to gender history, which would continue to be covered by other sections of matrimonial law.
Trans campaigners say this undermines the utility of the GRC, itself already under fire. The main reason for obtaining a certificate is to tidy up the past, to remove from the records any trace of gender inconsistency.
But if its possession remains, also, grounds for dissolving a marriage, then the arguments against obtaining one grow stronger.
Concerns have grown further after the police and Crown Prosecution Service (CPS) to prosecute for trans people for assault when they don’t tell their lover about their gender history before sex.
Authorities have not taken any comparable action in respect of individuals who had failed to disclose their past history as sex offenders or child abusers.
Trans campaigners say the CPS will not engage with them on the issue.
But they feel this sends out a very clear message that failure to disclose ‘real gender’ is viewed as a more serious criminal act than being a rapist, thereby encouraging and providing mitigation for transphobic assault.
Government insistence on keeping special provisions for trans divorce within current matrimonial law is viewed as adding considerably to this impression.
In the United States, campaigns for equal marriage have frequently fractured, with trans groups accusing LGB activists of focusing primarily on gay issues with only vague promises to follow through on issues that affect the trans community after. The outcome of this week’s debates make it increasingly likely similar fault lines opening up in the UK.
GSN is awaiting a response from the UK government’s Equalities Department.
A separate legislative process is being pursued to introduce equal marriage in Scotland.