Baroness Barker: It’s time to abolish the ‘spousal veto’ over gender recognition for married trans people

Posted On: 
28th October 2019

My Private Member’s Bill will update the law to provide fairer protection for trans people and their spouses, writes Baroness Barker

“Not having legal gender recognition can stop them applying for jobs or acquiring property”
Credit: 
PA

Before England and Wales introduced same-sex marriage, it was necessary for married trans people to end their marriages for the trans person to gain legal gender recognition. Some couples in this situation did not wish to end their marriages, so the transitioning person did not apply for legal recognition. Others felt compelled to end their marriages and then contract new ones after gender recognition had been granted, which they describe as like having their marriages “stolen”.

Thankfully this is no longer the case. However, instead, when a married trans person seeks gender recognition, their spouse must give permission.

Current legislation maintains that the spouse is only consenting to the continuation of the marriage. In practise, they actually have the power to consent – or not – to their partner’s gender being legally recognised. If the spouse’s permission is withheld then the trans person is blocked from having their gender legally recognised. The marriage continues to exist.

After gender recognition is granted, either party has six months to end the marriage. However, there is a loophole. Before the Marriage (Same Sex Couples) Act 2013 came into effect, married trans people could only receive an Interim Gender Recognition Certificate (“IGRC”), which is merely a document stating that a GRC can be provided to the applicant if they divorce. The IGRC allows a swift annulment of a marriage, but only if the application is made within six months of receipt of the IGRC. If divorce proceedings have already been initiated, an IGRC cannot be used to end a marriage. This allows a spouse to draw the matter out for years. During that time the trans person does not have legal gender recognition and this can stop them applying for jobs or acquiring property.

Explicit spousal consent now only applies in these gender recognition cases. No other marriage-changing event, such as relocating or converting to a religion or declaring oneself bankrupt, or even changing one’s name, requires such consent.

For those married and currently living in Scotland, the law allows for the trans person to apply to a sheriff court to gain full gender recognition, and not have to end their marriage.

It is not clear why the Government came up with spousal consent. Spouses who met with ministers at the time did not ask for this power. For some, it puts them in a position in which they do not wish to be. They do think it reasonable that they should be informed that their spouse is applying for a Gender Recognition Certificate. Therefore my Private Member’s Bill requires the person making the application to make a statutory declaration that they have taken reasonable steps to inform their spouse.

I am not arguing that people should be forced to remain in a marriage which they no longer wish to continue. People should be able to divorce or seek an annulment. Legislation for that already exists and that should be the mechanism by which disagreements are judged and arrangements for future support are made. These are matters which should be decided mutually by the couple, but not by one of them withholding consent.

When a person seeks gender recognition they must have been living as their gender for at least two years, as prescribed by the Gender Recognition Act 2004. Decisions about the future of the marriage would almost always have been taken much earlier, often when the trans person transitions socially or medically to their new gender. Whatever the decision, this is an extremely difficult experience. Some marriages endure, but sometimes relationships break down in acrimony. If that is the case there is nothing to be gained by prolonging the dispute.

My Bill removes the veto, but requires the person transitioning to inform their spouse of their application for legal recognition. This is a matter of high importance to a small number of people, and as such it is an appropriate subject for a Private Member’s Bill.

Baroness Barker is a Liberal Democrat peer