Where “equal marriage” leaves trans folk

Created 18 July 2013 by Zoe O'Connell

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To tidy up a few loose ends, now that the Marriage (Same-Sex Couples) Act 2013 is an Act and not merely a Bill, here is a summary of its effects on the trans community.

None of this takes effect until the necessary procedures are put in place and the Secretary of State gives it the green light to go ahead – that’s not currently expected to happen for at least a year. As things stand, the first same-sex marriages will happen before the trans-related provisions are put into effect. It is also possible that procedures in practice will differ slightly from what’s intended from the legislation for practical or other reasons. We saw this happen with the Gender Recognition Act 2003.

Applying for a Gender Recognition Certificate

If you are applying for a Gender Recognition Certificate and you…

  • Transitioned after 2008 & are not married or civil partnered then there is no change.
  • Transitioned before 2008 & are married at the time of application, then you may be able to use the “Fast Track” procedure. The date is set at 6 years prior to the commencement of the relevant section and we don’t know when it will come into force yet, so it may end up being a cutoff date in 2009 if commencement doesn’t happen until 2015. The caveats for this are:
    • Your marital status at the time of transition makes no difference. If you transitioned a decade ago but didn’t get a GRC because you were married but have subsequently been widowed, you can not use the Fast Track process. Conversely, you do not need to have been married at the time of transition and could get married for the sole purpose of obtaining a Fast Track GRC
    • You must be “ordinarily resident” in Great Britain, i.e. excluding Northern Ireland. This appears to have been put in place to avoid complications with Northern Ireland but unfortunately rules out anyone born in this country and living abroad.
    • “Fast Track” isn’t any faster from the Gender Recognition Panel’s point of view, it is a reduced documentary requirement – evidence of surgery or a diagnosis of gender dysphoria. I do not know if anyone tried this under the old Fast Track system when the GRA2003 first came into force, but it would appear that the surgery does not need to have been as an adult. This potentially allows someone with an intersex condition who is married to obtain Gender Recognition, something they were previously unable to do due to the lack of a diagnosis of gender dysphoria.
    • The spousal veto still applies to fast track applications, regardless of how long you have been transitioned for.
  • Are married at the time of application, then you can apply for Gender Recognition and remain married. Recognition would be subject to the Spousal Veto. If the spouse does not consent, then the old process applies which can take some time and is more expensive – apply for an Interim Gender Recognition Certificate, initiate annulment proceedings and hope your spouse isn’t looking to drag things out. Interim GRCs do not grant any rights beyond the ability to apply for annulment of a marriage. It is likely quicker to apply for a normal divorce as that can be done without needing to wait to become eligible for a GRC. The intent of the Interim Gender Recognition Certificate was largely to allow couples to remain together after transition, as you cannot apply for a normal divorce if still living together.
  • Are civil partnered then you need to convert your civil partnership to a marriage first, then apply for gender recognition as above. If you do not wish to convert to a marriage and remain together as a couple the only option is the Interim Gender Recognition Certificate and annul the Civil Partnership. This is a consequence of mixed-sex civil partnerships being unavailable.

After obtaining Gender Recognition

  • If you gave up your marriage and potentially pension rights under the old system by getting an Interim Gender Recognition Certificate and annulling the existing marriage/CP and were re-married/CPed, there is no mechanism for restoring that relationship or pensions.
  • The situation for a wife of a trans woman (And only in that specific combination) is improved in the case where the trans person dies first and the wife is left with a survivors pension.
  • Sections 12(h) of the Matrimonial Causes Act 1973 and the civil partnership equivalent, section 50(e) of the Civil Partnership Act 2004 remain in force – if you acquired gender recognition prior to getting married/civil partnered and your partner claims they did not know this, they may be able to get the marriage or civil partnership voided.
  • The wording to be used in marriage ceremonies abd on marriage and birth certificates is, at this moment, unchanged. There is likely to be some further work in this area with post-enactment secondary legislation.