An LGBT pride march in Paris. Photo: Getty
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We won't have truly equal marriage until we get rid of the spousal veto

Although gay couples can now marry, the law still distinguishes between heterosexual and same-sex marriages - and that can cause problems for trans people. 

With same-sex couples getting hitched in England and Wales at last, it would be easy to think, “job done, marriage is equal at last”. And you’d be wrong. It’s not really “equal marriage”.

For example, there’s a continuing distinction between “same-sex” and “opposite-sex” marriages. One of the areas where this surfaces is in the area dubbed “spousal veto” by trans campaigners.

The new law allows for trans people who are already married to gain gender recognition without having to get divorced, which is extremely welcome and long overdue. However, because there remains a distinction between “same-sex” and “opposite-sex” marriages, the spouse also must consent. The trans person cannot gain gender recognition until either the spouse consents – or they get divorced.  That's what campaigners call the "spousal veto" – although government doesn’t like the term, even though it's defined in my ancient Collins Dictionary as “to refuse consent to”.

Sadly, most marriages involving trans people break down, and some do so acrimoniously, with divorce proceedings stretching out over several years, mainly due to the difficulties in agreeing over access to children and distribution of property. The new law makes no exception for divorcing spouses, so in these cases the trans person’s legal right of recognition is on hold. They can only get gender recognition when the divorce is finalised - or if their potentially hostile soon-to-be-ex-spouse agrees to the change from an opposite-sex marriage to a same-sex one. The trans person can lose out quite considerably in entitlements and personal wellbeing during this time. 

There is only one other area in English law which requires spousal consent for a partner’s actions – a rarely used process for changing names. Trans people therefore feel singled out by the Government. As Baroness Gould said in the House of Lords, “[t]here is no need for spousal consent to end a marriage, move abroad, financially destabilise the family, apply for distant jobs, or for medical treatment".

The argument underpinning spousal veto is that gender recognition changes the marriage contract, therefore the spouse has to agree. But no such requirement exists should one partner change their name. When I took my wedding vows, they most definitely included names. Also, trans people have contracts with pensions companies, to give just one example, which also change on gender recognition, but I don’t see any request for corporates’ consent – and pensions companies have a financial interest here. So the hang-up must be to do with the terms “husband” and “wife”.

According to Blacks, the legal dictionary, the definition of “husband” is “one who has a lawful wife living”. Obviously now, with same-sex marriage lawful, that legal definition is somewhat out-of-date. (Don’t think about it too hard in relation to lesbian couples – it will make your head hurt.)

Trans people must wait for at least two years after changing gender role before they can apply for gender recognition. In that time, trans women will have moved so far away from the functional definition of “husband”, and trans men from “wife”, that the argument that the spouse needs to consent to gender recognition and gender recognition alone is rather strange.

The law also makes no distinction for marriages entered into after 29 March this year, where gender is apparently irrelevant unless, apparently, you’re trans.

If there really was no distinction between same-sex and opposite-sex marriages, if marriage was truly equal, then there wouldn’t be a change in any kind of legal relationship upon gender recognition. The marriage would simply carry on, and if either party became uncomfortable with the arrangements, then they have the usual route through the divorce courts. The trans person’s rights wouldn’t get trampled on in the meantime.

What of the spouses? Well, in an admittedly non-scientific poll of 18 spouses, not one supported the veto. Only one wanted some kind of say in their partner’s gender recognition process. Typically, these were supportive spouses who had stayed with their trans partners. Most trans people agree that spouses should be informed of a gender recognition application. Indeed, that was the outcome of a consultation with civil servants. But there’s a vast difference between “informing” and “requiring consent from”.

When the Scottish Parliament debated these issues, and after their Equal Opportunities Committee said that “spousal consent for gender recognition is unnecessary and should be removed”, they came up with a workaround. A trans person who doesn’t have spousal consent for gender recognition can, after they have been issued with an interim gender recognition certificate, apply to the sheriff’s court who can issue full gender recognition. There really is no spousal veto in Scotland.

However, in Northern Ireland, where there isn’t same-sex marriage at all, trans people who are married still have to get divorced before gaining gender recognition.

Don’t get me started on the issues trans people in civil partnerships face.

Helen Belcher is one of the founders of Trans Media Watch and also sits on the Parliamentary Forum on Gender Identity. She runs a software company in her spare time.

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Why the Liberal Democrats by-election surge is not all it seems

The Lib Dems chalked up impressive results in Stoke and Copeland. But just how much of a fight back is it?

By the now conventional post-Brexit logic, Stoke and Copeland ought to have been uniquely inhospitable for the Lib Dems. 

The party lost its deposit in both seats in 2015, and has no representation on either council. So too were the referendum odds stacked against it: in Stoke, the so-called Brexit capital of Britain, 70 per cent of voters backed Leave last June, as did 62 per cent in Copeland. And, as Stephen has written before, the Lib Dems’ mini-revival has so far been most pronounced in affluent, Conservative-leaning areas which swung for remain. 

So what explains the modest – but impressive – surges in their vote share in yesterday’s contests? In Stoke, where they finished fifth in 2015, the party won 9.8 per cent of the vote, up 5.7 percentage points. They also more than doubled their vote share in Copeland, where they beat Ukip for third with 7.3 per cent share of the vote.

The Brexit explanation is a tempting and not entirely invalid one. Each seat’s not insignificant pro-EU minority was more or less ignored by most of the national media, for whom the existence of remainers in what we’re now obliged to call “left-behind Britain” is often a nuance too far. With the Prime Minister Theresa May pushing for a hard Brexit and Labour leader Jeremy Corbyn waving it through, Lib Dem leader Tim Farron has made the pro-EU narrative his own. As was the case for Charles Kennedy in the Iraq War years, this confers upon the Lib Dems a status and platform they were denied as the junior partners in coalition. 

While their stance on Europe is slowly but surely helping the Lib Dems rebuild their pre-2015 demographic core - students, graduates and middle-class professionals employed in the public sector – last night’s results, particularly in Stoke, also give them reason for mild disappointment. 

In Stoke, campaign staffers privately predicted they might manage to beat Ukip for second or third place. The party ran a full campaign for the first time in several years, and canvassing returns suggested significant numbers of Labour voters, mainly public sector workers disenchanted with Corbyn’s stance on Europe, were set to vote Lib Dem. Nor were they intimidated by the Brexit factor: recent council by-elections in Sunderland and Rotheram, which both voted decisively to leave, saw the Lib Dems win seats for the first time on massive swings. 

So it could well be argued that their candidate, local cardiologist Zulfiqar Ali, ought to have done better. Staffordshire University’s campus, which Tim Farron visited as part of a voter registration drive, falls within the seat’s boundaries. Ali, unlike his Labour competitor Gareth Snell and Ukip leader Paul Nuttall, didn’t have his campaign derailed or disrupted by negative media attention. Unlike the Tory candidate Jack Brereton, he had the benefit of being older than 25. And, like 15 per cent of the electorate, he is of Kashmiri origin.  

In public and in private, Lib Dems say the fact that Stoke was a two-horse race between Labour and Ukip ultimately worked to their disadvantage. The prospect of Nuttall as their MP may well have been enough to convince a good number of the Labour waverers mentioned earlier to back Snell. 

With his party hovering at around 10 per cent in national polls, last night’s results give Farron cause for optimism – especially after their near-wipeout in 2015. But it’s easy to forget the bigger picture in all of this. The party have chalked up a string of impressive parliamentary by-election results – second in Witney, a spectacular win in Richmond Park, third in Sleaford and Copeland, and a strong fourth in Stoke. 

However, most of these results represent a reversion to, or indeed an underperformance compared to, the party’s pre-2015 norm. With the notable exception of Richmond’s Sarah Olney, who only joined the Lib Dems after the last general election, these candidates haven’t - or the Lib Dem vote - come from nowhere. Zulfiqar Ali previously sat on the council in Stoke and had fought the seat before, and Witney’s Liz Leffman and Sleaford’s Ross Pepper are both popular local councillors. And for all the excited commentary about Richmond, it was, of course, held by the Lib Dems for 13 years before Zac Goldsmith won it for the Tories in 2010. 

The EU referendum may have given the Lib Dems a new lease of life, but, as their #LibDemFightback trope suggests, they’re best understood as a revanchist, and not insurgent, force. Much has been said about Brexit realigning our politics, but, for now at least, the party’s new normal is looking quite a lot like the old one.