Comment: Removing the spousal veto will make Scotland’s equal marriage bill fairer

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Scottish National Party MSP Linda Fabiani writes for on why Scotland’s same-sex marriage bill needs to remove the spousal veto, which requires a married trans person to obtain written consent from their spouse before they can be granted gender recognition.

Today the Scottish Parliament’s Equal Opportunities Committee will consider and vote on an amendment I have submitted to remove the spousal veto from Scotland’s equal marriage bill.

The amendment, which was proposed by the Equality Network after consultation with transgender people and their partners, will remove the requirement for a married trans person to obtain written consent from their spouse before they can be granted gender recognition.

Obtaining gender recognition is an important administrative process which amends a person’s birth certificate to reflect the gender in which they live their life.

I strongly believe that access to legal gender recognition is a human right, and a deeply personal matter, that should not be able to be blocked by another person.

The amendment I’ve submitted will uphold the principle of personal autonomy and ensure a more progressive bill that strikes a fair balance of rights between the trans spouse and their partner.

Since Scotland secured devolution in 1999 we have been at the forefront of LGBT equality in Europe, at times leading the way in introducing trans inclusive laws and policies.

This is partly because we have a progressive parliament and partly because the democratic process in Scotland is very consultative, helping to enact well-considered legislation.

I want Scotland to continue in that tradition, and pass equal marriage legislation that protects the rights of trans people and advances equality in a way we can be truly proud of.

That’s why I was pleased that the Equal Opportunities Committee voiced its opposition to the spousal veto in its Stage One report and why I am hopeful that Committee members will support this amendment today.

As the Committee identified in its report there is simply no need for the spousal veto as the rights of the non-trans spouse are already protected.

If the non-trans spouse is unhappy that their partner is seeking gender recognition, and they come to the difficult decision that they no longer wish to remain in the marriage, they will have an uncontestable right to a divorce.

Giving the non-trans spouse the additional right to block their spouse’s gender recognition is therefore a disproportionate and entirely unnecessary measure that infringes on the trans spouse’s human rights.

The Equality Network’s amendment will redress the balance and ensure that trans people have the same level of personal autonomy afforded to married people in all other areas of their life.

There are all sorts of decisions that a married person can currently make which might impact on their spouse. Whether it’s choosing a new career, adopting a particular religion or belief, or indeed consenting to or refusing major medical treatment.

In such situations, the person is legally able to make the decision for themselves – their spouse has no legal veto.

Similarly, a trans person’s decision to undergo gender reassignment surgery could have a huge impact on their spouse, but they nonetheless have the freedom to make decisions about surgery for themselves.

Surely having their birth certificate amended is likely to have a much less significant impact on their spouse, and yet strangely as the bill stands it is this administrative step which the spouse can veto.

The only legitimate rationale for the non-trans spouse to have a say in their partner’s gender recognition would be if it affected their matrimonial rights, but under the bill none of the spouse’s rights are affected – the granting of the gender recognition certificate has no practical effect on the non-trans spouse.

As transgender equality is developing, an increasing number of European countries, who like Scotland are required to comply with the European Convention on Human Rights, are rightly treating legal gender recognition as a personal process and removing divorce and spousal consent requirements from their legislation.

It is worth noting that, other than England and Wales, none of the 10 European countries with same-sex marriage has a spousal consent requirement for gender recognition.

It would therefore be extremely disappointing if Scotland, with its proud track record of leading on LGBT equality, were to miss this opportunity to develop our laws in line with best practice.

Scotland’s equal marriage bill is an historic piece of legislation that I was proud to see an SNP government introduce.

There’s a reason we call it ‘equal marriage’ in Scotland, and if we are serious about our commitment to trans equality we must prove it by passing this amendment and delivering true marriage equality for all.

Linda Fabiani is the Member of the Scottish Parliament for East Kilbride.


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