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.