Dear Mr Evans,

Submission on the proposed Gender Recognition Act 2003
from the Croydon Area Gay Society

We are responding to your Call For Evidence on the proposed Gender Recognition Bill. We are concerned only with section 3 (3), which stipulates that full recognition of change of gender will be denied to a transsexual person who remains married to someone of the transsexual person's acquired gender.

• We make one minor proposal to avoid an inconsistency in this proposal in the Bill.
• We argue that the proposal to deny full legal recognition of acquired gender to someone who is already married is wrong because
  
  1) it undermines the value and permanence of marriage
  2) it is unjust to spouses, children and other relatives
  3) it conflicts with the transsexual person's right to 'private … life'.
  
  
• Finally we propose a simpler solution that may be more just and consistent with current law.
  This document appears on our website: www.cags.org.uk

Yours sincerely,

Roger Burg
For the Croydon Area Gay Society

The terms 'gender', 'acquired gender', 'full recognition' of gender change, 'full gender recognition certificate' and 'interim gender recognition certificate' are used in the senses used or defined in the Bill.
The 'right to private life' and 'right to marry' refer to the European Convention on Human Rights and to the finding of the European Court of Human Rights in the case of Goodwin and I v. UK.

page 2

Minor Proposal

As we are a 'Gay Society', we are very much aware of the number of countries that recognise same-sex marriage. In Canada, for example, 'marriage' is legally the same for same-sex and mixed-sex couples.
The Bill proposes recognition of transsexual marriages for the UK. Section 3 (4) proposes that similar foreign transsexual marriages should be recognised in the UK on the same basis.

So logically, where a foreign same-sex couple married abroad, immigrated to the UK, and one of the spouses changes gender, their marriage should also be recognised in the UK. The Gender Recognition Bill is the appropriate instrument to provide for this contingency in the clause that follows the present section 3 (4).

The clause might look something like the one below.

3 (4b)

A marriage is a relevant post-recognition marriage if it was recognised under the law of the approved country or territory in question as a same-sex marriage, but the applicants are now resident in the UK, only one has changed gender and fulfils the eligibility criteria for an interim gender recognition certificate.

Clearly it would be inappropriate for this to be subject to a time limitation, like the six months proposed in 3 (5).

This point is separate from those that follow.

In the items that follow we argue that marriages should not need to be annulled as the proposed Act would require, and suggest how they would be dealt with better.

page 3

The proposal to deny full legal recognition of acquired gender to someone who is already married is wrong because

1) it undermines the value and permanence of marriage.

Several transsexuals have explained that they made life-long marriage vows in good faith, and intend to keep them. This marriage commitment is part of the cement that binds society together, and should not be undermined by any government.
The possibility of annulling a marriage was sensitive and carefully considered. Nevertheless, the intent to annul a marriage that is valid is the same as the intent to divorce - and this is what is unacceptable, as some of the following comments illustrate.

"My marriage and the associated vows as far as I am personally concerned was a commitment for life. I said it and I meant it. It is a shame that society can make oaths that say one thing and when inconvenient make an excuse of 'It was a mistake' and dissolve it. I do not, … to me it will always be my personal commitment."

"We were married in church as practising Christians and have always been faithful to each other. The commitment we made then means a great deal to us both and it would be extremely painful and wrong for us to divorce."

"My husband and I took part in a public act of sacrament in which we made a mutual commitment … thirty-six years ago … . Surely a government that prides itself on the promotion of family values should be doing everything it can to preserve marriages rather than encouraging their dissolution."

"I want to have full legal recognition but I can't just divorce Chris … . We are both practising Christians and take our marriage bond seriously."

"We remain as close as ever, very much in love and determined to remain married."

page 4

The proposal to deny full legal recognition of acquired gender to someone who is already married is wrong because:

2) it is unjust to that person, their spouse, children and other relatives.

The legal status of marriage guarantees certain rights of inheritance, and benefits from the spouse's pension. Indirectly it empowers each spouse to support the other through rights such as hospital visiting. These rights would be lost if the marriage were annulled.

2a) Side effects of dissolving a marriage

Most female-to-male transsexual applicants will have brought up children while their husband was the breadwinner. Such an applicant now relies on their inheritance rights to their husband's home, wealth and pension. The applicant would lose many or all of these rights if the marriage were annulled.

Even if the couple made wills to guarantee that the applicant inherited property and wealth, the bequest would incur inheritance tax. The Bill proposes no corresponding adjustment to the law to preserve the full bequest as the couple expected and planned while they were married. Pension funds would often be paid only at the discretion of trustees.

In other circumstances and to different extents, the loss of home, wealth and pension applies to some male-to-female transsexuals.

'In the twenty-first century the right of transsexuals to … security in the full sense enjoyed by others in society' was affirmed in the findings of Goodwin and I v. UK (under the heading Article 8, second paragraph. Our emphasis). Thus the requirement that to change one's legal gender one must annul one's marriage with the resulting loss of security (financial and otherwise) appears to contravene current precedent.

The rights and duties of marriage do not stop at one's spouse. Inheritance rights include children, in some cases grandchildren and can include relatives on both sides of the family.

When one marries one often acquires an array of nephews and nieces to whom one has special duties on birthdays and Christmases - duties usually of a considerable financial value.

When one marries one accepts that one's spouse's parent or parents may eventually need to be cared for and to move into the marital home. Often it is not the parent's own son or daughter, but the son or daughter in law who has to take the primary duty of care.

If one's fiancé(e) has children from a previously deceased spouse, when one marries, one accepts these step children as one's own, in fact, if not in law.

All of these parties and others are affected when a marriage is dissolved. It is unjust that these parties should suffer by the annulment of a legal marriage.

page 5

2b) Side effects if a civil partnership were substituted for marriage

There is a common expectation that the government will permit transsexual people to 'convert' their marriages to civil partnerships.

But some of the rights and duties of marriage are not included in the government's civil partnership proposals. For instance,

• the law requires trustees of pension funds to pay pension benefits to one's spouse, but there is no proposal to include this requirement for civil partners. Roman Catholic trustees are already constrained not to do so, and many others will be disinclined to do so. So even if a couple were able to 'convert' their marriage to a civil partnership, they would be unable to maintain the level of mutual support to which they committed themselves in marriage, and on which they have budgeted and planned throughout their marriage. This was found to be unacceptable in the Goodwin findings quoted under 2a.

• The civil partnership proposals recognise no in-law relationships with one's partner's family (described under 2a) as a marriage does.

• For many the support of their local church community is very important. The acceptance and blessing of many church communities for the relationship would be withdrawn if the individual decided to substitute a civil partnership for their church wedding.

• A civil partnership defines a couple as homosexual, a misconception that has long offended people who have fought for their identity as transsexual, and one which certainly misrepresents their spouses.

For these reasons it would be unjust to require that one should 'convert' one's marriage into a civil partnership in order to gain full recognition of acquired gender. The finding of the European Court of Human Rights, in the case of Goodwin v. UK found that the right to legal marriage applied to transsexual people, not the right to be transsexual as an alternative to retaining one's marriage, or vice versa.

"At these [extremely difficult] times, our marriage promises become very important to us, and give us reasons to work through the changes in our relationship. If we have to convert our marriage to a civil partnership, the feeling of continuity and permanence would be removed, and the impetus to stay together through difficult times would be much less.
"In addition to our feelings we have made various decisions (legal, financial, child care etc) based on the shared rights and responsibilities of marriage and fear that a civil partnership will not be able to retain all of these in every situation."

page 6

The proposal to deny full legal recognition of acquired gender to someone who is already married is wrong because:

3) it conflicts with the right to private life and right to marry.

It is to the credit of the Government that it has proposed ingenious means to allow a transsexual person to gain full legal recognition of their acquired gender, without revealing the fact that they changed gender. A great deal of thought has gone into this, and it fits the requirements of the findings in the Goodwin case on privacy well.

But marriage is not private. It is a matter of public record. Annulment is so uncommon that a public record of it would strongly imply that one of the couple had changed gender, and no one could convert their marriage to a civil partnership, without a full gender recognition certificate.

So to require a change of marital status contravenes the right to privacy that Goodwin and I v. UK upheld. The ECtHR found that the UK government must honour both Ms Goodman's right to privacy and her right to marry, not one or the other.

The Bill's present proposal is unacceptable on grounds of compassion. Many transsexual people - and it is believed to be the great majority - disappear quietly back into society in their acquired gender, after the traumatic years of transitioning. It would be unacceptable to this invisible majority of transsexuals to require that they engage in a publicly recorded act of annulment and thus sacrifice the degree of normality that they have suffered so much to attain.

Section 14 'Prohibition on disclosure of information' sub-sections (1) and (2) makes it an offence to disclose a person's transsexual history. Yet this is exactly what civil servants would be required to do if they were to process a public annulment or a public conversion of marriage to civil partnership. The parts of section 14 would become either meaningless or unenforceable if a public change of marital status were required.

Privacy in marriage and in civil partnership

There is already a strong case to be made that both marriages and the proposed civil partnerships should be capable of being transacted privately. Few couples would have a justifiable case for privacy. It is undoubtedly less than 1% of such relationships. This minority of cases would include people who would be in clear danger of murder if their marriage or sexuality were known.

If the government were to require married transsexual people to annul their marriages (possibly converting them to civil partnerships) then we urge the government to recognise married transsexuals as part of this small minority.

To permit privacy in marriage or civil partnership it is necessary that the following contingencies must be catered for in law:

• Anyone must be able to lodge an objection, valid or otherwise, to a marriage or civil partnership. This provision is already in place as one's application to marry can be made only at one's local registry office. (The same is proposed for civil partnerships.) Registry offices keep 'on file' records of alleged impediments. So the mechanism to object effectively is in place already.

• The couple may need to prove their legal relationship for certain purposes. To this end they will have a certificate of their relationship (marriage or civil partnership).

(page 7)

• If it was suspected that the certificate was forged, the couple would have to be able to give written consent to checking their details on the central register. This would also apply where public or private bodies needed to confirm or check the status of the partners with the partners' consent.

• Certain public and private bodies would need to investigate the legal relationship of an individual without their consent. In the case of Police, immigration, tax authorities or insurance companies, limited information could be supplied on a need-to-know basis, with the legal requirement to restrict its use and access to it.

The introduction of privacy to marriage and civil partnerships, in extreme cases appears to be a viable option. So we would urge that this should be considered as a requirement, if gender recognition were made dependent upon annulment of marriage.

The government proposes to start storing recording all new records of marriages electronically by 2004. This lends urgency to this point. However the current proposal is that while the couple's occupations and addresses will not be public, the other details will be accessible via the Internet. It is not simple to search public record in only one name. However the ability to identify a record by two people's names, will make this information accessible with great precision and very little difficulty.

However, we propose a better way forward.

page 8

Proposal

The Bill has been carefully thought out to allow a couple to avoid the sensitive issues of filing for divorce. It has also avoided defining all current transsexual marriages as null, with the consequent loss of legal and financial protection for all involved. But the Bill puts the onus on the transsexual person to change their marital status to fit legislation that they could not have foreseen when they planned and provided for their future security.

In the Goodwin case, 'The Court did not underestimate the important repercussions which any major change in the system would inevitably have … these problems were far from insuperable.' The 'Court considered that society might reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the sexual identity chosen by them at great personal cost.'

Section 3 (3) of the Bill addresses the issue of an existing marriage of someone who is no longer fully of the opposite gender to that of their legal spouse. This last kind of marriage arises as a result of 'the conflict between social reality and law' (Goodwin findings under 'Article 8', first paragraph).

A similar position occurs over intersex people. There are over 80 distinct medical diagnoses of the intersex condition. This condition has not, we believe, been cited as an impediment to legal UK marriage. Neither is it found necessary to recognise the condition on birth certificates. Intersex people do not require special modifications to the marriage laws, nor certificates to give them legal status.
We urge the Government to allow existing marriages of transsexual people to be recognised in the same way, just as they are now, and to treat transsexual and intersex people with the same respect; to quote from Christine Goodwin's case, to allow them equally 'to live in dignity and worth'.

However, if the government still finds it necessary to mark existing transsexual marriages alone with a special certificate, then the Bill proposes a sound basis for issuing an 'interim gender recognition certificate' for transsexual people who retain their marriages. The criteria of eligibility for this 'interim' certificate could apply to a 'gender recognition marriage certificate' instead. Equally uncommon, this certificate would award legal recognition to these exemplary marriages, which are all too rare, and which survive to support spouses and their families, in spite of the exceptional stresses imposed by gender change.

This avoids breaching the right to privacy of transsexual people. It would avoid denying the legal and financial support that they have built up for their dependants, their spouses and themselves. It is realistic. But above all, it is compassionate.

We believe that this may be a just, legal and more satisfactory solution to this problem.