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Why trans people can finally breathe a sigh of relief in Scotland

Why trans people can finally breathe a sigh of relief in Scotland

Same-sex marriage will be legal in Scotland from 16 December. Hogmanay, our New Year’s Eve, will take on special significance for many couples this year as this will be when the first same-sex weddings take place.

As couples across Scotland plan their big day, trans people who are already married or in a civil partnership can breathe a sigh of relief knowing they can finally have the gender they live as legally recognized without being forced to break up their families.

In 2005, many trans people in the UK won the right to have their gender legally recognized, the culmination of decades of campaigning in the courts and parliament.

But that new right did not apply to all trans people.

In particular, the Gender Recognition Act forces trans people who are married to choose between their marriage and their right to gender recognition. A married trans person can only get gender recognition if they first divorce, and of course many have been married for years in a marriage that continues to be loving and affirming, and which they want to keep.

But that untenable choice is coming to an end. The Scottish Government announced today that from 16 December, trans people who married in Scotland will finally be able to get gender recognition without divorcing.

The UK Government is responsible for the rules for trans people who married in England and Wales, and has set the date there at 10 December.

So by Christmas, trans people who married in England, Wales and Scotland will finally be able to apply for gender recognition, and get it while continuing their marriage. Unfortunately, people who married in Northern Ireland still won’t have the same right, because the Democratic Unionist Party continue to veto LGBTI rights there.

Those who married in Scotland will then be able to get a new marriage certificate in their new name and showing their new chosen designation ‘bride’, ‘bridegroom’ or neither. There will be two ways of doing that. Couples can have a full ‘renewal’ marriage ceremony, which can be conducted by a registrar, religious celebrant or belief (humanist) celebrant. Or they can simply re-register the marriage for free.

For people who married in Scotland there is an additional right – to get gender recognition as your own decision, a decision that cannot be blocked by your spouse.

The campaign we led against the so called ‘spousal veto’ persuaded the Scottish Parliament Equal Opportunities Committee to accept an amendment from Linda Fabiani MSP, to remove the veto from the Marriage and Civil Partnership (Scotland) Act 2014.

The effect of that is to enable trans people who do not have their spouse’s consent to apply to the gender recognition panel for an interim gender recognition certificate, and then get that automatically converted to full gender recognition by the sheriff court in Scotland. The only drawback is that a replacement marriage certificate can’t be issued unless and until the non-trans spouse agrees to it being issued. But the marriage continues anyway, in full legal effect, uninterrupted.

This is just one aspect of the legislation which makes Scotland’s equal marriage law one of the most progressive in the world and strengthens our place as a leader on LGBTI equality.

Mixed sex civil partnership has not yet been introduced anywhere in the UK, although Scotland’s equal marriage campaign continues to work for it. Therefore, if one person in a civil partnership wants to get gender recognition, they will have to convert to a marriage before submitting their application.

The Scottish Government intends to introduce a streamlined process next year, enabling applicants to obtain gender recognition and have their civil partnership converted to a marriage in one step. If both civil partners want to get gender recognition, they can keep their civil partnership so long as they both apply to the GRP for gender recognition at the same time.

Although these changes will be widely celebrated, for trans and intersex people there is still a way to go before we achieve legal equality.

The Scottish Transgender Alliance and Equality Network will be addressing this with the Equal Recognition Campaign to strengthen trans and intersex equality and human rights.

We are excited to be launching the campaign at the first Trans and Intersex Conference of the Isles, which the Scottish Transgender Alliance is hosting on the 1 and 2 November in Edinburgh. The conference will be a first in bringing together trans and intersex activists from across the UK, Ireland, the Channel Islands and the Isle of Man.

You can book a place at the Conference of the Isles here. For more information on the Scottish gender recognition process for married and civil partnered people see here.