Spousal veto

England and Wales have just made marriage between two people of the same sex legal. This is grand news, in some respects, moving us a little closer towards marriage equality. However, things are not so great for trans folks.* The Corbett v Corbett court ruling in 1970 meant that the law treated trans people as being their biological sex. This affected such things as: ability to marry, employment protections, which prison you could be sent to, and so on. In 2004 (!), under pressure from the European Court of Human Rights, the government issued a Gender Recognition Certificate (GRC), allowing trans people to apply for a new birth certificate and so gain rights lost by the 1970 ruling. (The 2010 Equality Act removed some of those rights for good, although it didn’t take things back to the dark days of 1970). However, since marriage could only be between two people of the opposite sex, you couldn’t apply for a GRC if you were married. You needed to either get divorced and then legally change your sex, or stay married and remain your biological sex in the eyes of the law. The new marriage laws just passed should have ended these complications, but this hasn’t happened. It’s no longer essential to get divorced in order to be issued with a GRC, but you have to have your spouse’s permission to apply for one. If your spouse doesn’t give permission, then you have to get divorced. This seems like a pretty strange ruling. The government say they’ve added this clause so that ‘both parties have a say in the future of their marriage’. But what kind of say, exactly, do they have in mind? The only scenario that I can think of is someone, married to a transperson who has transitioned for more than two years (a requirement of being issued with a GRC), who – despite, one presumes, living with their spouse, being seen out and about with their spouse, going to friends’ houses with their spouse, etc. – is so deeply in denial about the situation, that they insist on thinking that their spouse is still a man/woman, and has the power to deny their spouse their rights on this basis. Why might one be in such denial? One obvious reason is that by recognising your spouse’s sex, you thereby acknowledge that you are in a homosexual relationship. The government’s ‘spousal veto’ clause thus seems to be about privileging the straight identity of the cis-partner over that of the trans person.

You can read more, including news about campaigns (completely ineffective so far) here.

*Slight understatement.

23 thoughts on “Spousal veto

  1. Sorry… pedantic note that it is England and Wales, not the UK. Scotland is likely to follow suit very soon.

  2. “The government’s ‘spousal veto’ clause thus seems to be about privileging the straight identity of the cis-partner over that of the trans person.” – nicely put.

    Just a note about one point – I saw on sarah brown’s blog (the link you gave) that she said the Equality Act 2010 had ‘revoked the employment nondiscrimination protections granted by a Gender Recognition Certificate.’

    I’m not absolutely certain that’s false, but I can’t find anything to back it up: gender reassignment is a protected characteristic under the Equality Act, and all the relevant employment provisions apply to it (making direct discrimination, indirect discrimination, harassment and victimisation unlawful). So – as far as I can tell, and I could be wrong – I don’t think there are any protections which the Equality Act 2010 revoked and didn’t replace with something equivalent.

  3. All laws that give other adults power over adults of sound mind and body strike me as being strange and undemocratic. It’s understandable that these gender/sex issues present legal challenges; but requiring the consent of another adult to make legal claim to a sexual/gender identity is strange.

  4. It’s passing strange. I look forward to the day it is a dinosaur bone in the ash-heap of history.

  5. It is, beta, disgraceful that every non-traditional identity and behavior that deviates from the 19th Century hetero-sexist (Victorian or Puritanical) patriarchal sex/gender paradigm must be fought with blood, sweat, and tears; but that’s how the domineering status quo rolls. Their seems to be no end to the rat bastards and their oppressive busy-body nature.

    First, I would like to see bias against sexual/gender identifications fully embraced by the lion’s share of feminists.

  6. If your spouse is dead-set against your sex change, divorce is probably a good idea anyway. I don’t see the strangeness with them having a say while you’re married, though. What principle does it violate? Autonomy? One popular idea of marriage is of a kind of union. ‘Union’ pretty much implies right off the bat that at least some autonomy is lost.

    wileywitch seemed to have a good principle with the adults not having power over other adults thing. But, I’d let my spouse stop me from doing things that I’d never let my neighbor or some politician touch. So, it seems that there’s something more fine-grained going on here than just an adult v. adult thing.

  7. I agree with Asur here. Part of what it is to enter into a legally recognized marriage is to mutually give “other adults power over adults of sound mind and body.” That said, any legitimate interests on the part of the married partner in these cases is surely covered by that spouse’s right to divorce, without the need for a spousal veto regarding the GRC.

  8. No, “union” between two consenting adults is not necessarily any loss of autonomy. Union could and sould mean the two confer, they are allies, they partner. But I do not yield my autonomous decision-making abilities regarding my body and identity to another by partnering. That is not a conception of marriage that I would be interested in, and it is not one we should consider unproblematic. Most changes to laws regarding married individuals over the past few decades have been dedicated to enhancing their autonomy with respect to body and identity, and this is a good direction to go in.

  9. While I don’t agree with Asur and Derek about what marriage ought to be, I think there are quite a few people who hold their views on the institutions of marriage. Perhaps more importantly, I think both legislators and folks on the street tend to hold those views, and tend to interact with married people (and legislate) in light of those views. Those views are a big reason why my long-term partner and I refuse to be married.

  10. I’m not sure what view of marriage you think I’ve expressed. I thought I was making a rather banal descriptive/logical claim about what it is to have a legally recognized marriage.

    Although the details vary by legal jurisdiction, entering into a legal marriage involves conferring legal rights on one another. Those rights need not be absolute, and they need not involve a comprehensive undermining of my legal right to make a broad range of choices on my own. But my spouse has legally enforceable claims against me that no one else has, which gives us power over one another. That’s why, among other things, legal marriage rights are so important, and it’s why ‘divorce attorney’ is its own specialized branch of legal practice.

    What would it mean to have a legal marriage that didn’t involve some such conference of rights? And why would such legal recognition matter?

    But let me also reiterate that I completely agree that the law should not require spousal consent for a change in legally recognized gender. Divorce is an adequate legal remedy for spouses who don’t like their partner’s change in gender identity.

  11. Well said Derek. Though if divorce is an adequate legal remedy for the husband or wife exercising the so-called “spousal veto”, it would seem to be one that works as well for the one seeking the Gender Recognition Certificate. Either way you end up with two divorced people.

  12. So you think it makes sense to FORCE disadvantaged people to wait to go through a divorce before being allowed to have access to BASIC HUMAN RIGHTS?! Cis privilege is a hell of a thing.

  13. Rachel, not sure which commenter you’re directing your attention to, but if Derek@ #12, note that he specifically says indeed he agrees the law should NOT require spousal consent at all — so if I’m reading him right, he’s saying that one should be free to file for a GRC, and a spouse of said filer that wants a “veto” has the option to leave/divorce if that’s what they choose. Truly, a spouse can force one to go through the hell of a divorce for any reason at all.

    On the other hand, if Rachel is replying to Nemo @ #13, I can’t make sense of his comment so have no explanation there.

  14. beta, I suspect what Rachel was replying to Derek and pointing out that divorces sometimes take quite a bit of time. It all depends, of course, on the details of marriage in your jurisdiction. But they’re often pretty slow-going.

    @Derek, who said: “What would it mean to have a legal marriage that didn’t involve some such conference of rights? And why would such legal recognition matter?”

    Personally, I don’t care much about legal recognition. I’m on board with abolishing the public institution of marriage. But that might depend on some irrelevant details of my own life. I’m white, have a decent job, etc. I’m not exactly in the top 10% of the socio-economic ladder or anything, but I’m in a good enough position to tell someone to buzz off if they have a problem with my relationship.

    But I think there are lots of other people, especially people in more marginalized positions/relationships, who would point to the social benefits of legal recognition. I’ve known people who have gotten married because they wanted the public legitimacy conferred by the legal recognition. That would be present even without any of those “rights.”

  15. I should also say that I was reading Derek as claiming that the trans* person’s actions would have to wait until the divorce was finalized. But I now see that there’s an alternative reading of his remarks.

  16. I don’t know how I can be clearer than I was at #12: I agree completely with the original post. Spousal veto is unjustified, and it’s unjustified because it wrongly privileges the interests of the non-transitioning spouse in the recognition of his/her identity as straight (or gay) over the transitioning spouse’s interest in the recognition of his/her gender identity.

    What I objected to was the suggestion of some posts that there was no such balancing act, either because spouses have no morally legitimate interest in the gender identity of their partner or because marriage should give spouses no legally enforceable claims against one another. I guess I don’t see how you can plausibly combine the views that (i) marriage matters, (ii) gender matters, and (iii) the social recognition of marriage and gender matter with the position that (iv) spouses have no morally defensible interest in the social recognition of one another’s gender identity.

    I hold (i)-(iii) so I reject (iv). But I agree with the original post that the legitimate interests we have in our spouses’ socially recognized gender identity is best protected by the same mechanism that protects most of our other morally legitimate interests in our spouses’ lives – the ability to stop being their spouse.

  17. Though I didn’t see it mentioned in the blog piece linked in the OP, the European Court of Human Rights recently addressed a similar case originating in Finland involving a male-to-female sex reassignment. There, the national law provided that the applicant for the Finnish equivalent of a GRC needed to be either unmarried or have the consent of the spouse. (In Finland, obtention of the GRC would have transformed the marriage into a civil partnership that, the Court noted, was functionally equivalent.) At any rate, in that case the ECHR found as follows:

    “While it is true that the applicant faces daily situations in which the incorrect identity number creates inconvenience for her, the Court considers that the applicant has a real possibility to change that state of affairs: her marriage can be turned at any time, ex lege, into a civil partnership with the consent of her spouse. If no such consent is obtained, the applicant has the possibility to divorce. For the Court it is not disproportionate to require that the spouse give consent to such a change as her rights are also at stake. Nor is it disproportionate that the applicant’s marriage be turned into a civil partnership as the latter is a real option which provides legal protection for same-sex couples which is almost identical to that of marriage.”

    http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-114486

  18. Also, back in 1981, The Hastings Center Report devoted part of an issue to some related matters, in which several distinguished philosophers and ethicists offered a “case ethics” analysis, from various applied ethical traditions, of the following scenario:

    “THE CASE: John has been married for eight years and is the father of three children. Even before his marriage he had suffered from identification with the other sex. Increasingly, however, he finds his male role unacceptable, and he now seeks hormone therapy and sex-change surgery to become a female. His wife objects, arguing that she is incapable of managing the family alone and is unwilling to live with him if he undergoes the surgery and therapy. John is unwilling to forego [sic] the therapy and surgery. As his physician, may you begin the hormone therapy at his request? Do you need the prior consent of his wife? If the therapy and surgery are completed, with or without her consent, will John still be married to his wife?” (Emphasis mine.)

    http://onlinelibrary.wiley.com/doi/10.2307/3561335/abstract

    Obviously there are some factual and legal dissimilarities with regard to the case in the OP, but it’s an interesting parallel. In any event, since the link requires a subscription that some readers may not have, I briefly summarize below the thoughts of the contributors on the specific question of the spouse’s consent:

    –Baruch Brody concludes that John is not entitled to undergo sex-change surgery without his wife’s consent because he is not ethically entitled to unilaterally terminate their marriage. Brody assumes for the sake of the analysis that John would become a female and that his marriage would terminate because of the resulting lack of complementarity of the sexes of the spouses (while noting the absence of consensus on either of these assumptions).

    –Richard McCormick contends “Since the surgery would be viewed as morally wrong in itself, it would not be purged of basic moral wrongfulness by the wife’s consent. However, were such consent given, the injustice would be removed – at least the injustice to the wife. Volenti non fit injuria (given consent there is no injustice).”

    –David Smith hedges a bit on the consent question, but does aver that “John’s wife’s consent is irrelevant to a determination of the morality of the sex change. … If his choice is wrong, it is not because she objects.” Smith finds it worth considering, though, that if John had the operation prior to marriage but concealed it from his wife, the marriage would not have been validly consented.

    –Stephen Toulmin asserts that “whenever the sexual character of any marriage is basically changed, the question of mutual consent is morally important”, but stops short of maintaining that the wife’s consent is ethically required. Toulmin pleads the incompleteness and ambiguity of the hypothetical facts as presented.

  19. We’re a sapient species with sexually dimorphic non-neuroplastic neurology. Pretty sure trans people’s biological sex is their identified sex with at least the same degree of accuracy to which we assume that to be the case for cis people.

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