Comment: How Scotland’s same-sex marriage bill can be improved for trans and intersex people

Illustrated rainbow pride flag on a pink background.

Writing for, Scottish Transgender Alliance Development Officer Nathan Gale explains how Scotland’s same-sex marriage bill does not achieve equality for transgender and intersex people.

Many trans people and their allies are extremely disappointed and concerned that the Marriage (Same Sex Couples) Act 2013 for England and Wales has not adequately delivered marriage equality for trans and intersex people.

Not surprisingly, at the Scottish Transgender Alliance, one of the founding partners of the Scottish Equal Marriage Campaign, lots of people have been asking us how the campaign is going to ensure that trans and intersex people aren’t left behind during the passage of the Scottish bill. So we thought it would be good to set out on the changes we think are needed to make sure Scotland’s legislation is truly inclusive of trans and intersex people.

Spousal Veto

One of the most contentious parts of the bill is the inclusion of the so called “spousal veto”. This provision will require a trans person to get their spouse’s consent to remaining married to them before they can have their gender legally recognised. It is intended to protect the spouses of trans people from finding themselves in legally same-sex marriages, particularly as some people may have deeply held objections to same-sex marriage.

At first glance this may seem fairly reasonable. But trans people must have been living as the gender they identify as for at least two years before applying for gender recognition and so their marriage has been in effect a same-sex marriage for that time already. And their partner has had at least two years to divorce them if they are unhappy about staying in the marriage. What’s more, the granting of the gender recognition certificate has no practical implications for the non-trans spouse – their pension entitlements and all other rights remain unchanged – but the denial of gender recognition can have a huge impact on the trans person, putting them at risk of harassment and discrimination as their birth certificate does not reflect the gender they live as.

As the legislation stands if an applicant for gender recognition does not have the consent of their spouse the Gender Recognition Panel will issue them with an interim gender recognition certificate which they can then use to initiate divorce proceedings. Again this sounds straightforward, if their spouse doesn’t agree to staying married to them then surely getting a divorce should be a simple process? Unfortunately that is not the reality of the situation for many trans people because divorce proceedings are held up, sometimes for a number of years, by uncooperative spouses. It seems particularly unfair for a trans person to be denied their human rights when their spouse will neither provide their consent to gender recognition, or allow a divorce to proceed quickly.

We do understand that there may potentially be some non-trans spouses who feel strongly that they want their marriages to remain as they were originally solemnised and who might be distressed by the thought that their marriage would be re-registered and a new marriage certificate issued. But at the moment we don’t think the legislation is striking an appropriate balance between the rights of such people and their trans spouses, who thought once same sex-marriage was introduced they’d finally be able to get gender recognition.

The solution we are suggesting creates such a balance – it enables a trans spouse to be granted a full gender recognition certificate but does not enable the marriage to be re-registered if spousal consent is withheld. Under our proposal once the applicant has received their interim gender recognition certificate they will apply to the Sheriff Court to obtain full gender recognition. This will result in a gender recognition certificate and new birth certificate, but not in a re-registered marriage or new marriage certificate. It therefore has no impact on the non-trans spouse.

This is a distinctly Scottish solution. The Sheriff Court in Scotland already issues full gender recognition certificates when a divorce is granted on grounds of an interim certificate having been issued. Our solution has the advantage of not requiring any alternative procedures to be used by the Gender Recognition Panel for Scottish applicants as it is dependent on an application having already been dealt with by the panel.

The objective of the legislation is still achieved, that is to ensure that a non-trans spouse does not find themselves in a newly registered marriage in the names of two people of the same sex against their wishes. But our proposal ensures that trans people are able to access their human right to have the gender they identify as legally recognised.

Gender Neutral Marriage Ceremonies

We think it is extremely important for all couples, particularly those including intersex or trans people, to be able to have a gender-neutral marriage ceremony if they wish. Unfortunately, the way the bill is currently written means that religion and belief ceremonies between people of different legal sexes must include a declaration that the couple accept each other as “husband and wife”. Same-sex religion and belief marriage ceremonies will instead have to include a declaration that the couple accept each other “in marriage”.

But some couples who are on paper mixed sex may actually identify as same sex, and others may not think of themselves as male or female at all. So it would be highly offensive for them to have to describe themselves as “husband and wife”.

We agree that religious organisations should be able, if they wish, to conduct all their mixed-sex marriages using the gender-specific terms husband and wife. And those terms should also continue to be available for all couples who want to use them. But it is wrong to impose those terms on couples who would prefer to use the gender-neutral language and on organisations, such as the Humanists, who are perfectly happy for them to do so. We are pushing for the bill to be amended to enable religion and belief organisations that choose to, to offer to legally mixed sex couples the option of using the gender-neutral marriage ceremony declarations.

And finally …

There are a number of other changes which we would like to see to the bill in order for it to more fully provide for trans and intersex people, including lowering the age for gender recognition to 16. For a more detailed analysis of our proposed changes to the Marriage and Civil Partnership (Scotland Bill) see here.

To find out how to have your say on the bill visit the Equality Network website. 

Nathan Gale is the Development Officer at the Scottish Transgender Alliance