Imagine: you want to set up a new company but the law requires you to have the written consent of your wife; or you’ve just got pregnant, but you haven’t got a piece of paper with your husband’s signature on it stating he’s OK with that; or you’ve just been involved in a major car accident, sadly without your spouse’s written approval.
Each of these actions, and we can all think of many similar ones, may well change the nature of your existing marriage quite considerably. Hopefully we’d have talked through and gained agreement on these changes beforehand, as far as we’re able.
But the requirement that we need written consent from our spouse would be, quite rightly, treated as an outrage.
Yet that is exactly what is being proposed in the UK government’s same-sex marriage bill for England and wales for trans people in existing marriages. If married, a trans person’s gender recognition will require the written consent of their spouse.
Given that spousal consent is (not yet) required for trans people to undergo surgery or to change their name, to force it to obtain a human right – that of self-determination – seems very one-sided indeed.
The current system is flawed – not least because there is no way for a marriage to continue if a trans spouse wants gender recognition. The ‘spousal veto’ has been proposed because civil servants heard spouses’ current concerns the first they might hear about a gender recognition application was the thud of divorce papers accompanied by an interim gender recognition certificate.
The reason given by the civil servants behind the scenes is that the spouse needs to approve the change in their marital status. Except there is no change in their marital status – the couple will still be married. Spouses would like to be told that a gender recognition application is underway. But there is a world of difference between ‘informing’ and ‘requiring consent’.
The concept of uncooperative spouses, especially when there are children involved, is not unknown amongst divorce lawyers. Many trans people have marriages which break up at the point of disclosure or transition. Some of these relationships become incredibly hostile, with the non-trans spouse actively blocking and ignoring letters.
Divorce proceedings may not be completed for some considerable time, especially if financial arrangements cannot be agreed when those negotiations may go on indefinitely. To delay a trans person’s gender recognition (which may impact them financially and emotionally) simply because an uncooperative spouse is already deliberately ignoring letters appears particularly cruel. The civil servants I have spoken to all admit that situation is likely to arise.
The discussions around re-instating the gender recognition ‘fast track’ procedure, for those who have been living in their ‘acquired gender’ for six years or more, also provide interesting insights. Reinstating fast-track doesn’t currently appear in the bill, but the government has indicated it is willing to consider enhancing it to reintroduce the measure, and amendments have been tabled accordingly. This is quite significant for many married trans people who, quite often, have held back from divorce but would find it difficult to now muster all the medical evidence required.
The argument for the fast track procedure in the first place was people who transitioned many years ago could find it difficult to track down all the information they need. After all, psychiatrists may have retired, paperwork goes missing, and, if you’ve lived ‘in role’ for six years or more, you are highly unlikely to revert to your ‘birth gender’. (You’re actually highly unlikely to revert anyway.)
Discussions with the same civil servants recently revealed their interpretation of ministerial views was the fast-track should be re-opened only for those who were adversely affected by it closing the first time, and it should only be open for a matter of a few months.
But surely the difficulties faced in 2007 (when the fast-track route closed) by those who transitioned before 2001 are the same as those faced now by those who transitioned before 2007, or will be the same as those faced in 2026 by those who transition in 2020?
The concessions seem consistently slow and reluctant. There doesn’t appear to be any commitment at the highest levels to listen and understand. Instead it seems that blocking and obfuscation is the name of the game.
Trans people I have spoken to support the principles behind the same-sex marriage bill being debated in parliament by an overwhelming majority, with caveats. There are significant worries that, once again, trans people’s rights are being seen as secondary to other peoples’ concerns. And that speaks volumes about the way trans people are still seen by policy makers.