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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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Is Yvette Cooper surging?

The bookmakers and Westminster are in a flurry. Is Yvette Cooper going to win after all? I'm not convinced. 

Is Yvette Cooper surging? The bookmakers have cut her odds, making her the second favourite after Jeremy Corbyn, and Westminster – and Labour more generally – is abuzz with chatter that it will be her, not Corbyn, who becomes leader on September 12. Are they right? A couple of thoughts:

I wouldn’t trust the bookmakers’ odds as far as I could throw them

When Jeremy Corbyn first entered the race his odds were at 100 to 1. When he secured the endorsement of Unite, Britain’s trade union, his odds were tied with Liz Kendall, who nobody – not even her closest allies – now believes will win the Labour leadership. When I first tipped the Islington North MP for the top job, his odds were still at 3 to 1.

Remember bookmakers aren’t trying to predict the future, they’re trying to turn a profit. (As are experienced betters – when Cooper’s odds were long, it was good sense to chuck some money on there, just to secure a win-win scenario. I wouldn’t be surprised if Burnham’s odds improve a bit as some people hedge for a surprise win for the shadow health secretary, too.)

I still don’t think that there is a plausible path to victory for Yvette Cooper

There is a lively debate playing out – much of it in on The Staggers – about which one of Cooper or Burnham is best-placed to stop Corbyn. Team Cooper say that their data shows that their candidate is the one to stop Corbyn. Team Burnham, unsurprisingly, say the reverse. But Team Kendall, the mayoral campaigns, and the Corbyn team also believe that it is Burnham, not Cooper, who can stop Corbyn.

They think that the shadow health secretary is a “bad bank”: full of second preferences for Corbyn. One senior Blairite, who loathes Burnham with a passion, told me that “only Andy can stop Corbyn, it’s as simple as that”.

I haven’t seen a complete breakdown of every CLP nomination – but I have seen around 40, and they support that argument. Luke Akehurst, a cheerleader for Cooper, published figures that support the “bad bank” theory as well.   Both YouGov polls show a larger pool of Corbyn second preferences among Burnham’s votes than Cooper’s.

But it doesn’t matter, because Andy Burnham can’t make the final round anyway

The “bad bank” row, while souring relations between Burnhamettes and Cooperinos even further, is interesting but academic.  Either Jeremy Corbyn will win outright or he will face Cooper in the final round. If Liz Kendall is eliminated, her second preferences will go to Cooper by an overwhelming margin.

Yes, large numbers of Kendall-supporting MPs are throwing their weight behind Burnham. But Kendall’s supporters are overwhelmingly giving their second preferences to Cooper regardless. My estimate, from both looking at CLP nominations and speaking to party members, is that around 80 to 90 per cent of Kendall’s second preferences will go to Cooper. Burnham’s gaffes – his “when it’s time” remark about Labour having a woman leader, that he appears to have a clapometer instead of a moral compass – have discredited him in him the eyes of many. While Burnham has shrunk, Cooper has grown. And for others, who can’t distinguish between Burnham and Cooper, they’d prefer to have “a crap woman rather than another crap man” in the words of one.

This holds even for Kendall backers who believe that Burnham is a bad bank. A repeated refrain from her supporters is that they simply couldn’t bring themselves to give Burnham their 2nd preference over Cooper. One senior insider, who has been telling his friends that they have to opt for Burnham over Cooper, told me that “faced with my own paper, I can’t vote for that man”.

Interventions from past leaders fall on deaf ears

A lot has happened to change the Labour party in recent years, but one often neglected aspect is this: the Labour right has lost two elections on the bounce. Yes, Ed Miliband may have rejected most of New Labour’s legacy and approach, but he was still a protégé of Gordon Brown and included figures like Rachel Reeves, Ed Balls and Jim Murphy in his shadow cabinet.  Yvette Cooper and Andy Burnham were senior figures during both defeats. And the same MPs who are now warning that Corbyn will doom the Labour Party to defeat were, just months ago, saying that Miliband was destined for Downing Street and only five years ago were saying that Gordon Brown was going to stay there.

Labour members don’t trust the press

A sizeable number of Labour party activists believe that the media is against them and will always have it in for them. They are not listening to articles about Jeremy Corbyn’s past associations or reading analyses of why Labour lost. Those big, gamechanging moments in the last month? Didn’t change anything.

100,000 people didn’t join the Labour party on deadline day to vote against Jeremy Corbyn

On the last day of registration, so many people tried to register to vote in the Labour leadership election that they broke the website. They weren’t doing so on the off-chance that the day after, Yvette Cooper would deliver the speech of her life. Yes, some of those sign-ups were duplicates, and 3,000 of them have been “purged”.  That still leaves an overwhelmingly large number of sign-ups who are going to go for Corbyn.

It doesn’t look as if anyone is turning off Corbyn

Yes, Sky News’ self-selecting poll is not representative of anything other than enthusiasm. But, equally, if Yvette Cooper is really going to beat Jeremy Corbyn, surely, surely, she wouldn’t be in third place behind Liz Kendall according to Sky’s post-debate poll. Surely she wouldn’t have been the winner according to just 6.1 per cent of viewers against Corbyn’s 80.7 per cent. 

Stephen Bush is editor of the Staggers, the New Statesman’s political blog.