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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Conservative disunity is not all good news for Labour

The Tory leadership election could squeeze Labour out of the conversation, just like Blair and Brown did to the Tories.

The first test of opposition politics is relevance. Other key yardsticks - political plausibility, economic credibility, setting the agenda and developing a governing vision - all matter greatly. But making yourself a central part of the relentless cycle of daily politics, the terms of which are generally set by the governing party, is the first hurdle. It matters not whether you sign up to new politics or old: be relevant or wither. 

The issue of relevance is becoming a pressing issue for Labour. Take George Osborne’s favoured issue of the so-called national living wage.  Leave to one side the rights, wrongs and nuances of the policy and just consider the basic political dynamic it creates.  Osborne has, quite deliberately, set up a rolling five year argument over a steadily rising wage floor. On one side, is the Chancellor arguing that his policy is the right thing for Britain’s ranks of low paid workers. Pitted against him are ranks of chief executives of low-paying big business. With each impending hike they will holler at Osborne to go no further and the media will happily amplify the row. In response the Chancellor will quietly smile.

Sure, on occasions this will be uncomfortable stance for Mr Osborne (and if the economy takes a downward turn then his pledge will become incredible; there are always big risks with bold strokes).  Yet the dominant argument between the Conservatives and big business leaves Labour largely voiceless on an issue which for generations it has viewed as its own.

We may well see a similar dynamic in relation to the new national infrastructure commission – another idea that Osborne has plundered form Labour’s 2015 manifesto. It’s far too early to say what will come of its work looking at proposals for major new transport and energy projects (though those asserting it will just be a talking shop would do well not to under-estimate Andrew Adonis, its first Chair). But there is one thing we can already be confident about: the waves of argument it will generate between Osborne’s activist commissioners and various voices of conservatism. Every big infrastructure proposal will have noisy opponents, many residing on the right of British politics. On the issue of the future of the nation’s infrastructure – another touchstone theme for Labour – the opposition may struggle to get heard amid the din.

Or take the different and, for the government, highly exposing issue of cuts to tax credits. Here the emerging shape of the debate is between Osborne on one side and the Sun, Boris Johnson, various independent minded Conservative voices and economic think-tanks on the other. Labour will, of course, repeatedly and passionately condemn these cuts. But so have plenty of others and, for now at least, they are more colourful or credible (or both).  

The risk for the opposition is that a new rhythm of politics is established. Where the ideological undercurrent of the government steers it too far right, other voices not least those within the Conservative family - moderates and free-spirits emboldened by Labour’s current weakness; those with an eye on the forthcoming Tory leadership contest – get reported.  Where Osborne consciously decides to tack to the centre, the resulting rows will be between him and the generally Conservative supporting interests he upsets. Meanwhile, Labour is left struggling for air.

None of which is to say there are no paths back to relevance. There are all sorts of charges against the current government that, on the right issues, could be deployed - incompetence, complacency, inequity – by an effective opposition.  Nor is the elixir of relevance for a new opposition hard to divine: a distinct but plausible critique, forensic and timely research, and a credible and clear voice to deliver the message. But as yet we haven’t heard much of it.

Even in the best of times being in opposition is an enervating existence. Those out of power rarely get to set the terms of trade, even if they often like to tell themselves they can. Under Ed Miliband Labour had to strain – sometimes taking big risks - to establish its relevance in a novel era defined by the shifting dynamics of coalition politics. This time around Jeremy Corbyn’s Labour is up against a Chancellor willing to take risks and pick big fights: often with traditional Tory foes such as welfare claimants; but sometimes with people on his own side.  It’s also a new and challenging context. And one which Labour urgently needs to come to terms with.   

Gavin Kelly is chief executive of the Resolution Foundation