We have won same-sex marriage. Now we must fight for trans* rights

Yesterday the Marriage (Same Sex Couples) Bill passed its final stage in the House of Lords, making same-sex marriage legal in England and Wales.

Trans rights

Jack Saffery-Rowe is LGBT officer at Royal Holloway University

Yesterday the Marriage (Same Sex Couples) Bill passed its final stage in the House of Lords, making same-sex marriage legal in England and Wales.

This is a huge victory for the LGBT movement after 20 years of campaigning.

Same-sex couples can now have their relationship legally recognised on an equal footing to opposite-sex couples for the first time in British history.

But this is not the final battle.

Throughout the height of campaigning for the bill trans* people have been almost entirely erased from the discussion, most visibly by Stonewall.

Stonewall is the leading LGB rights organisation in the UK, but has had the pomposity to call this bill ‘equal’ marriage.

However we do not have truly equal marriage, and won’t do so for a long time.

We must fight for non-binary and poly* relationships to be legally recognised in the same way.

The impact that this bill has on trans* people is complex.

Before the bill trans* people who were in a marriage or a civil partnership and wanted their affirmed gender legally recognised (for example, for pensions) by having it changed on their birth certificate, were forced to end the marriage or civil partnership, get the Gender Recognition Certificate (GRC) (which changes the birth certificate), and then enter into the ‘other’ form – the option of ‘marriage’ or of ‘civil partnership’ permitted to the affirmed gender of the individual.

For a GRC to be issued, the trans* person has to be living as their affirmed gender for two years, which implies to a reasonable degree of certainty that their spouse would be aware of their transition.

Now, instead of a divorce, for the GRC to be issued and the trans* person to have their birth certificate changed the spouse has to consent to their partner being granted a GRC and the conversion of the union between opposite and same sex. This form of consent requires a statutory declaration signed in front of a solicitor, which also costs money.

Given that 51 per cent of trans* people who come out to their partner or spouse can expect a negative reaction in the long term, 29 per cent of trans* people stated that their spouse has made getting a divorce difficult, and 44 per cent of partners and spouses have actively attempted to prevent their trans* partner from transitioning, this creates a situation in which trans* people could be blocked from having their affirmed gender legally recognised by a partner, possibly even a partner that they are trying to divorce.

Worst still, some have claimed that this is the final frontier of queer rights and that we are now equal. This is not the case. LGB and T people are still the subject of some of the most violent attacks in the UK.

In June 2012, gay teenager Steven Simpson was burnt to death for being gay and autistic at his 18th birthday party by Jordan Sheard. Sheard received just three and a half years imprisonment for Steven’s murder. Sheard’s lawyer described it as “the result of a criminally stupid prank that went wrong in a bad way.”

The verdict of manslaughter was widely condemned; however nothing further has come of it.

Lucy Meadows was a school teacher who was hounded by the right-wing press for being a trans woman. On 19 March this year, Lucy was found dead in her home after committing suicide. The response from the press, primarily the Daily Mail and its bigot-in-chief Richard Littlejohn was entirely unapologetic.

This was just one of a string of transphobic attacks in recent years.

These deaths are a call to arms for the fight for true equality. Same-sex marriage is limited and will do little to curb this trend of violence against queer people. Fighting homophobia, biphobia and, most of all, transphobia should be the priority in our movement over the coming years.

33 Responses to “We have won same-sex marriage. Now we must fight for trans* rights”

  1. bluecatbabe

    Sorry, just run that past me again. You object to spouses being consulted as to whether their existing marriage is to be deemed a same-sex or an opposite-sex one? Seriously? And the reason is … what? That consulting a solicitor costs money? (True: why not campaign for better access to legal aid?) The hounding to death of a young teacher, which, though certainly evidence of appalling transphobia in the media, has nothing to do with the marriage laws?
    Remind me, what rights does the spouse have? Any? For example, the right to be consulted about the status and nature of their own marriage?
    As for the self-reported comment that spouses have ‘made divorce difficult’ – given what partners who have been divorced from opposite-sex cis-gendered partners say, I’m surprised the figures for transfolk are so low.

  2. OldLb

    This time, try telling the electorate what you are going to do.

    Its better than enacting secret legistlation that you didn’t tell the voters you had as a plan.

  3. Justice for all

    How about the large number of bi-sexuals? I live with both my partners, we share everything, but if something happens to me only one of my partner will get my estate. The otherone will be leftout.

  4. GO

    But surely it wouldn’t be right for one partner in a marriage to be able unilaterally to effect ‘the conversion of the union between opposite and same sex’, such that (say) a homosexual-identifying woman (cis or trans*) could suddenly find herself in a legally recognised marriage to a heterosexual-identifying trans* man?

    That looks to me like a mirror image of the very problem you’re trying to avoid – one partner being able to define the other’s identity for them. Either one person has the right to say ‘I’m affirming my identity as [say] a heterosexual man, so as far as our marriage goes you’re going to have to be my heterosexual wife’, or the other has the right to say ‘I’m a homosexual woman, so as far as our marriage goes you’re going to have to be a homosexual woman too’. And it seems reasonable to me that the legal nature of the original marriage contract should stay the same unless both partners agree to change it.

  5. Selohesra

    If we broaden definition and scope of marriage wide enough then the tax planning lawyers are going to have field day with IHT avoidance schemes

  6. Norman Dostal

    gay isnt the same as trans-who lumped them in? no offense….

  7. Norman Dostal

    liar-bisexuals date one at a time-dumb argument

  8. ---

    I think the word for that issue is polyamory, rather than bisexuality. It will require a much larger cultural shift for poly relationships to be legally recognised, because the move towards acceptance of same-sex marriage move isn’t really as progressive/radical as some think.

  9. Neil Cameron

    So you are a bisexual polygamist.

    The complexities of polygamy boggle the mind and are too much for any legal system to accommodate (for now anyway).
    The allocation and codification of the allocation rights and obligations for any polygamous union is complex enough before you even consider the legal imbalance between the different ‘types’ of polygamous union: all hetero, all bi, all homo, hetero-bi, bi-homo, hetero-bi-homo combinations. For as long as each type differs there will be legal discrimination, which causes problems for the constitutionality of that law.

    Marriage laws are equipped to handle monogamy, and we are only now beginning to find a way to handle hetero vs homo monogamous marriages. Give it a couple more centuries before the law can accommodate polygamy.

  10. Jess Key

    You need to remember that legal gender recognition is a human right and confers a lot of legal protections. Without that recognition the trans* person is at risk.
    You also need to remember that legal gender recognition can only be applied for once the trans* person has been living full-time as that gender for at least two years. This isn’t a sudden surprise being sprung on the partner, they’ve had two years to get out of the marriage if they object. The trans* person will have had to change their name and may have had hormone treatment and gender reassignment surgery – none of which requires spoousal consent. They may be physically indistinguishable from a cis person, have changed most of their ID, yet you want to spouse to be able to stop them from altering their birth certificate and gaining their legal protections and human rights?
    Imagine a messy divorce where the cis spouse drags proceedings out for years with unreasonable demands. The trans* spouse is effectively bullied into agreeing to them in order to get their human rights.
    Or imagine a domestic abuse victim being told “yes of course ill give consent to your gender recognition just as soon as I know you love me”. You’ve just handed the abuser yet another means of control.
    Or imagine if the cis spouse is happy with the transition and wants the marriage to continue but they end up in a coma or mentally impaired before they can sign it. Trans person must now choose between divorcing the person they love or waiting until they die.
    No spousal consent is needed for anything else at all, in fact such requirements have all been abolished over time as they are oppressive. Why single out trans* people for special treatment?

  11. GO

    “You also need to remember that legal gender recognition can only be applied for once the trans* person has been living full-time as that gender for at least two years. This isn’t a sudden surprise being sprung on the partner, they’ve had two years to get out of the marriage if they object.”

    OK, this is a good point. Still, when it comes to making or changing a contract, isn’t it a general principle that any party has the right to back out right up to the moment the contract is made or changed? There’s something distinctly uncomfortable about the idea that someone could have their own marriage contract rewritten against their will because ‘if they didn’t like it they should have done something sooner’.

    “Imagine a messy divorce where the cis spouse drags proceedings out for years with unreasonable demands. The trans* spouse is effectively bullied into agreeing to them in order to get their human rights.”

    You’re assuming there *is* a cis spouse. But surely the spouse of the person seeking to have their newly-affirmed gender legally recognized might also be trans*?

    “Or imagine a domestic abuse victim being told “yes of course ill give consent to your gender recognition just as soon as I know you love me”. You’ve just handed the abuser yet another means of control.”

    So the idea is that a heterosexual male abuser (say) might tell his wife, who is seeking legal recognition for a male gender identity: “do as I say and I’ll consent to your gender recognition and stay with you as a homosexual partner in a same-sex marriage”? Well OK, but if we’re assuming abusers might be willing to use the fundamentals of their marriage contract and their own identity as bargaining chips in this way, we could just as easily imagine abusers using the threat legally changing their own gender identity as a means of control. So the problem theoretically arises either way.

    “No spousal consent is needed for anything else at all, in fact such requirements have all been abolished over time as they are oppressive.”

    This just isn’t true. In fact at least one requirement for spousal consent has been *introduced* in recent decades because the *absence* of such a requirement was oppressive: the requirement for a spouse to consent to sex. I don’t see why a requirement for a spouse to consent to fundamental changes to their own marriage contract is any less reasonable.

  12. Jess Key

    “when it comes to making or changing a contract, isn’t it a general principle that any party has the right to back out right up to the moment the contract is made or changed?”
    By your logic if a Catholic marries another Catholic in a Catholic wedding then there has to be spousal consent if one decides to drop religion or convert to a different denomination. Or if I marry an accountant I should be able to veto their career change. Or if I marry a blonde person then I should be able to veto their use of brown hair dye. Similarly your logic states that an employer should be able to veto a waiter becoming a waitress.
    Also you are forgetting that its already changed. Their name has changed for a start. Their genitals may have changed too. All you are able to prevent if their human rights being granted.
    Also in every other contract if there is a breach or change made to it that you don’t consent to then you can get out of it afterwards. For marriage this is an option in the form of divorce. If the spouse doesn’t like the change they can get out of the marriage, but you shouldn’t be able to deny them their human rights while you get around to it.

    “You’re assuming there *is* a cis spouse. But surely the spouse of the person seeking to have their newly-affirmed gender legally recognized might also be trans*?”

    True, but my argument stands even if the spouse is also trans*.

    “This just isn’t true. In fact at least one requirement for spousal consent has been *introduced* in recent decades because the *absence* of such a requirement was oppressive: the requirement for a spouse to consent to sex. I don’t see why a requirement for a spouse to consent to fundamental changes to their own marriage contract is any less reasonable.”

    Do you really think comparing rape with gender change is a good comparison? Do you believe spouses need protecting from trans* people in the same manner that they need protecting from rapists? you make a good point tho – every husband who married before that point had their marriage contract rewritten to remove presumption of consent to sex. This change in thousands of marriage contracts was done to protect the human rights of the wives. Similarly a very minor change to a marriage contract should be fine to protect the human rights of a trans* spouse – especially as name, appearance, genitals and social role may have already changed.

  13. Demon Teddy Bear

    “Jack Saffery-Rowe” … now there’s a working-class name! Yes, yes, we must fight for every perversion, however disgusting. What we must not do, never do, ever do, is … ask the people.
    Fascinating to see hate and elitism so closely intertwined.

  14. Jess Key

    “we could just as easily imagine abusers using the threat legally changing their own gender identity as a means of control. So the problem theoretically arises either way.”
    That person could already do it, but would need a medical diagnosis of gender dysphoria and 2 years living full time to get legal recognition. It hardly counts as a ‘threat’ when you are threatening to have a medical condition treated…

  15. GO

    “Yes, yes, we must fight for every perversion, however disgusting.”

    Nice.

    “What we must not do, never do, ever do, is … ask the people.”

    You’ve got a point, actually. When it comes to human rights issues, ‘asking the people’ is pretty irrelevant. No show-of-hands mandate is sufficient to justify denying anyone their rights. That’s why we don’t think that (say) slavery should be legal in places where a majority of people are in favour of slavery. If it takes an ‘elite’ group of politicians, judges etc. to push through laws protecting basic rights, so be it. Democracy and mob rule are not the same thing.

  16. Demon Teddy Bear

    Nice that you’re ashamed of the word but not the thing.
    The excuses for avoiding democracy are amusing, but equally disgusting. And vice is not a “basic right”, and lying about it does not make it so.

  17. GO

    “By your logic if a Catholic marries another Catholic in a Catholic wedding then there has to be spousal consent if one decides to drop religion or convert to a different denomination. Or if I marry an accountant I should be able to veto their career change. Or if I marry a blonde person then I should be able to veto their use of brown hair dye. Similarly your logic states that an employer should be able to veto a waiter becoming a waitress.”

    But in law, none of those things constitutes a change to the contract in question (as far as I know). A marriage’s going from being opposite-sex to same-sex or vice-versa, on the other hand, *does* constitute such a change. So the analogy doesn’t hold up.

    “Also you are forgetting that its already changed. Their name has changed for a start. Their genitals may have changed too. All you are able to prevent if their human rights being granted.”

    No: the spouse of the person seeking legal recognition for their newly affirmed gender identity can also prevent their *own* identity, and the nature of their *own* marriage contract, from being changed in the eyes of the law. This is the whole point. If I’m legally recognized today as (say) the spouse of a woman in an opposite-sex marriage, it’s not right that I could tomorrow be legally recognized as the spouse of a man in a same-sex marriage without my say-so. Of course the change would be ‘merely’ legal in a sense – as you say, my partner’s name etc. would already have changed – but it matters to us how we are seen in the eyes of the law. (Of course it does; that’s why this whole issue crops up in the first place.)

    “Also in every other contract if there is a breach or change made to it that you don’t consent to then you can get out of it afterwards.”

    No: a contract can be *breached* by one party unilaterally, but not *changed*. If I enter into a contract with you to, I dunno, fit a new kitchen in your house in return for £5,000, there’s no question of me just deciding unilaterally that the contract has changed and I’m now contracted to fit a new bathroom for £5,000 instead. Hence there’s no question of you having to ‘get out of’ that bathroom-fitting contract. It never existed, because you never agreed to it. The idea that someone who enters into a same-sex marriage to a woman (say) should end up having to ‘get out of’ an opposite-sex marriage to a man seems similarly nonsensical to me. (Note: I’m responding here to your point about how ‘every other’ contract works, not claiming any analogy between kitchen-fitting contracts and marriage contracts!)

    “Do you really think comparing rape with gender change is a good comparison? Do you believe spouses need protecting from trans* people in the same manner that they need protecting from rapists?”

    This just isn’t fair. You made the sweeping claims that ‘no spousal consent is needed for anything else at all’, and that all requirements for spousal consent are oppressive. I demonstrated the falsity of those claims by citing a well-known case of spousal consent being required and of this requirement not being oppressive, but instead being necessary to protect the rights of the spouse whose consent is required. This establishes the general principle that a requirement for spousal consent can be a means of protecting the rights of spouses against potential violations of their rights. That is by no means to imply that any and every violation of rights that might be thus protected against is comparable to rape in terms of its seriousness, its likelihood of happening, or anything else.

    “Similarly a very minor change to a marriage contract should be fine to protect the human rights of a trans* spouse”

    After all that, here’s the crux of the matter: I’m not at all sure it *is* a minor change. It’s the difference between me being, in the eyes of the law, a man in an opposite-sex marriage with a woman, or a man in a same-sex marriage with a man. And that is a big deal.

    A trans* man wrote to an advice page on the Guardian site recently. He explained that while he had come privately to identify as a man, as far as the rest of the world was concerned – including his partner – he was a lesbian woman. He wanted to be open about his gender identity but was worried, primarily, about the reaction of his partner, who he described as ‘fiercely gay’.

    Now suppose those two people were married. You’re suggesting that this man should, if push comes to shove, have the right unilaterally to change the legal status of his marriage from a same-sex union between two women, to an opposite-sex union between a man and a woman. A ‘fiercely gay’ woman whose sexual orientation is clearly central to her self-image. A woman who might well attach huge significance to the fact that her marriage is a same-sex marriage, the right to which she has fought long and hard for. I take your point about her having the option to ‘get out’ before that change is made, but I still feel that there’s something wrong in principle with the idea that her spouse should be able to just turn her into the wife in an opposite-sex marriage at the stroke of a pen.

  18. GO

    I wasn’t really suggesting that any abuser would be likely to use this threat with the genuine intention of carrying it out by going through the whole process of transitioning. Nor, though, do I think any abuser would be likely to promise to allow their partner to have their affirmed gender legally recognized, and to stay with them in a same-sex marriage, with the genuine intention of keeping that promise. I’m just pointing out that an abuser who sets out find something in the law that can be used to manipulate a victim through threats and promises can, theoretically, do so either way.

  19. GO

    One more point.

    A standard (and powerful) line of response to people who say they oppose same-sex marriage because they ‘don’t believe in it’ has been: “Don’t enter into a same-sex marriage, then. No one can force you.”

    Under this proposal, though, someone (your spouse in an existing opposite-sex marriage) *can*, in principle, force you to enter into a same-sex marriage by having a new gender identity legally recognized and changing the nature of your marriage against your will. Of course, in practice you might well manage to get a divorce finalized before it came to that – though even that would be partly down to your spouse – but the principle still looks objectionable to me.

    What was wrong with the principle that each individual should be able to enter into a same-sex or an opposite-sex marriage as they choose? What’s the problem with granting that trans* people have the right to legal recognition of their gender identity, but reserving for their spouses the right to decide whether that recognition can happen within their marriage or must happen outside it?

  20. Jack

    Hey. This was addressed at the LGBT+ community in general which has been focusing sole on this for the past year or so and erasing trans* from the agenda.

  21. Jack

    The issue is not about the status of the marriage as ‘homosexual’ or ‘heterosexual’ but about someone else deciding whether or not you can legally change your gender (i.e. get a GRC). I think that should absolutely be up to the individual.

  22. Jack

    Oh thanks for telling me what class I am purely from my name. Nice to know Katie Hopkins’ bigoted argument is wrong both ways.

  23. Jack

    I agree. I didn’t go into depth, but poly relationships should definitely be legally recognised. That’s the next fight on the horizon.

  24. Demon Teddy Bear

    My pleasure. Now go and get a real job, and lose the bigotry.

  25. Kevin McNamara

    you’re calling someone else a bigot? marvellous.

  26. Kevin McNamara

    do you suddenly speak for ALL bisexuals?

  27. Demon Teddy Bear

    Right back at you.

  28. Demon Teddy Bear

    More to the point, I have a close relationship with my accountant. How many “clients” can an accountant “marry”? For tax optimisation purposes? 🙂

  29. GO

    With respect, I don’t see why you get simply to decree that the one and only issue here is the one that concerns you – about someone else deciding whether or not you can legally change your gender. Your proposal does appear genuinely to raise another, parallel issue – about someone else deciding whether or not you become legally recognized as the spouse of a same-sex/opposite-sex partner in a same-sex/opposite-sex marriage.

    Let me repeat the ‘case study’ I described to Jess Key earlier:

    “A trans* man wrote to an advice page on the Guardian site recently. He explained that while he had come privately to identify as a man, as far as the rest of the world was concerned – including his partner – he was a lesbian woman. He wanted to be open about his gender identity but was worried, primarily, about the reaction of his partner, who he described as ‘fiercely gay’.”

    “Now suppose those two people were married. You’re suggesting that this man should, if push comes to shove, have the right unilaterally to change the legal status of his marriage from a same-sex union between two women, to an opposite-sex union between a man and a woman. A ‘fiercely gay’ woman whose sexual orientation is clearly central to her self-image. A woman who might well attach huge significance to the fact that her marriage is a same-sex marriage, the right to which she has fought long and hard for.”

    It seems to me that just as (in principle) your spouse should not be able to decide your legally-recognized gender for you, so (in principle) your spouse should not be able to decide your legally-recognized sexuality for you – which is effectively what would be happening if that trans* man took it upon himself to enter his ‘fiercely gay’ spouse into a legally-recognized marriage to a man.

    So: yes, it’s for you to decide whether you change your legally recognized gender; but it’s for your spouse to decide whether that can happen within the context of your marriage or must happen outside it (just because that affects your spouse’s legal status as well as your own).

  30. GO

    Suppose my wife and I separate but don’t take immediate steps to divorce. We lose touch for a few years. Then one day a legal document lands on my doormat telling me that I’m the spouse of another man in a legally recognized same-sex marriage. Hey presto, I’m officially gay! Or at least I’m officially living as a gay or bisexual man in a same-sex marriage with another man.

    Let’s ignore the practicalities (do I receive an amended marriage certificate? Is there a photocopy of my signature on it next to a real signature made my spouse in his new name?). What makes it OK in principle for my spouse to decide I’m going to have to be officially gay unless and until we get divorced? Why is that *less* of a problem than me deciding my spouse is going to have to be officially a woman until we get divorced? If it comes down to a choice between those two undesirable situations, shouldn’t the presumption be in favour of the status of the marriage remaining as previously agreed by both parties until either a change in that status is agreed by both parties, or the marriage is ended?

  31. Jack

    I accept that it may be difficult for someone to accept that a partner they assumed was cis is actually trans, but that doesn’t mean that you should be able to tell someone that they can’t get their gender legally recognised.

    Same-sex and opposite-sex marriages are now the same thing. It’s just marriage. Your sexuality isn’t ‘legally recognised’ by your marriage. Else, does the state not recognise bisexuals?

    Fundamentally, I think someone’s gender identity rests with them and only them. If your partner didn’t want to be with me because I’m of a different gender to what they thought I was, then that’s their problem not mine. Only I should make decisions about my gender identity.

  32. GO

    “that doesn’t mean that you should be able to tell someone that they can’t get their gender legally recognised.”

    Just to be clear: I’m certainly not suggesting you should be able to tell someone they *can’t* get their gender legally recognized. Just that, if they’re married to you, you should be able to insist that they divorce you first (since whether you want to be legally recognized as being in a marriage with a person of their affirmed gender is a matter for you).

    “Same-sex and opposite-sex marriages are now the same thing. It’s just marriage.”

    So why the reference in your original post to “the conversion of the union between opposite and same sex”?

    “Your sexuality isn’t ‘legally recognised’ by your marriage. Else, does the state not recognise bisexuals?”

    Through marriage? No, I suppose not. It recognizes people as being in sexual relationships either with a person of the same sex, or with a person of the opposite sex. That doesn’t amount to a legal recognition of their sexuality as they see it ‘in the round’, I suppose, but surely it’s fair to say that one’s marriage is nonetheless, among other things, a public and legally-recognized expression of something about one’s sexual identity? Isn’t same-sex marriage partly about recognizing that the sexual identities and relationships of gay and bisexual people are as legitimate as the sexual identities and relationships of heterosexual people?

    And whatever the strict truth about whether marriage ‘legally recognizes’ one’s sexual identity, surely it’s unarguable that a gay woman who finds herself married to a man, or a heterosexual man who finds himself married to a man, is right to think that her or his public, legal, official status gives a false impression of his or her sexual identity? And that should concern us for much the same reason that it should concern us when a trans* man or woman feels her or his public, legal, official status gives a false impression of her or his gender identity.

    “Fundamentally, I think someone’s gender identity rests with them and only them… Only I should make decisions about my gender identity.”

    I agree – but I also think someone’s *sexual* identity rests with them and only them. And I think that precludes anyone else from having their marriage publicly, legally recognized as involving a sexual relationship with a person of this or that gender. Hence we have a conflict of rights. Again, I suggest that the balance is best struck by allowing the spouse of someone seeking legal recognition of their newly affirmed gender to decide whether or not than can happen within the context of their marriage or must happen outside it.

  33. Space Marine Becka

    I’m cis and asexual so I don’t have a horse in this race but perhaps the solution is a combination of old and new?

    If the partner consents to the gender reassignment then the marriage is retained, if not the transgender partner is given a temporary certificate which can be used to obtain a divorce (with some sort of fast track provision to block the cis partner from being obstructive) since there’s definitely an irrevocable breakdown if the Cis partner is blocking the trans partner from having their gender legally recognised.

    It’s not ideal but what is in such a situation?

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