In the UK that is. I want to talk about that.
So let’s start by going back to 2004, when the Civil Partnership Act was brought about (well, gained Royal Assent anyway. The first actual UK civil partnership happened on 5th December 2005). I’m not going to talk about why it was a bad thing for there to be nothing in place for LGBTQ people before this (and all the rights it gave), but I will outline why it still wasn’t good enough. This isn’t necessarily all that obvious for a lot of people and deserves making clear. I’ll then move on to what the problems are that STILL remain with the new marriage set up! This is one of those rare instances when I hope that the contents of this post don’t age all that well. I hope I’ll be able to look back on this and think about how things have changed for the better. There’s all sorts of finickity angles this article could’ve taken, and a lot more to say. But it’s long enough as it is. I’ve tried to stick to what I see as core issues.
Many of the problems with the old Civil Partnership Act and the Marriage (Same Sex Couples) Act 2013 are due to their inability to account for transgender people, but we’ll get to that.
One of the most obvious ways in which the ‘separate but equal’ claim regarding civil partnerships vs. marriage is the disservice done to any LGBTQ person who might be religious. It was prohibited for civil partnerships to contain religious readings, music (such as hymns) or symbols. This is still the case actually, which is interesting given that not every organised religious practice (or even every organised Christian practice) opposes ‘same sex’ marriage – just certain major ones such as the Catholic Church, and the Church of England. Reformed Judaism and (some) churches following Quakerism for example were supportive of same-sex unions, but the government still deemed it a matter of law to decide how a civil partnership could be conducted in terms of religious content.
Okay, okay. So the government (eventually) recognised this was bad, so in 2011 after the Equality Act of the previous year, civil partnerships could now take place in religious venues – though in accordance with the protection of (homophobic) religious freedom, places of worship could not be compelled to conduct civil partnerships. However, the costs and administration created large and unequal barriers for willing places of worship to be positioned to legally conduct civil partnerships, even when they already did marriages, which makes… no sense.
Credit to: https://www.flickr.com/photos/carbonnyc/ (under creative commons)
Arguably more serious though was the financial inequality that civil partnerships allowed. This video explains this very eruditely – how a widow or widower of a marriage was able to get significantly larger pensions as a result of their deceased partner, in comparison to survivors of a civil partnership ended by death. It also highlights that civil partnerships may not be recognised abroad in some countries, regardless of whether they have gay marriage or their own civil partnership equivalence, or not. Andrea Woelke (the chap in the video) also makes the valuable point that being in a civil partnership could put people in a position where they have to ‘out’ themselves when required to declare their marital status, which carries the potential to experience fear, or harm.
Whilst there are other bits and bobs that made marriage and civil partnerships fundamentally different experiences under the law, (such as the potential criteria for ending each type of union), the ugly problem of the gender binary within law is starkly revealed when looking at how the government chose to deal with marriage and civil partnerships in relation to trans people. Christine Burns talks about this, and also gives attention to the context of and interplay with the Gender Recognition Act of 2004 as well.
Up until the Gender Recognition Act (so pre-2004), trans women were still legally classified as men, and trans men were legally classified as women. The fact that people still are until dealing with the gauntlet of the Gender Recognition Certificate is not a discussion for here. What I mean to say is simply that until this time, there was no possibility of a trans person’s gender identity to be recognised under the law. This meant that a trans woman could legally marry a cis woman, because it was technically an ‘opposite sex’ marriage (and vice versa, with a trans man marrying a cis man). Many transgender people also would remain married after transitioning – rendering them legally married, yet for all visible social and personal purposes, a same-sex couple. However, the Gender Recognition Act coming in gave the government a problem – if these married transgender people could have their genders legally recognised (and therefore changed), marriages would start to exist between two men, or two women. Therefore it was made law that before a transgender person could receive a Gender Recognition Certificate, they had to divorce their partner. They could then get the GRC as a single person, and then get a civil partnership again afterwards.
It’s not like this is an immense hassle in terms of logistics? Or that it is deeply insulting or upsetting to have to do this to attain legal rights? Or that both individuals have to put the legal safety nets that marriage grants at risk in order to do this process? Except they do. And I say ‘do’ because this is still the legal status quo. Unlikely though it might be, if one partner died during the period of not being married or civilly partnered, it could quite obviously screw just about everything up. Especially if children, a co-owned or shared residence, life insurance, and pensions are involved. Whilst in theory that conversion process can happen within a day, this depends upon, as Burns puts it: “Lengthy meetings on the logistics of such a tortuous process indicated that if everyone had read the instructions and followed them to the letter, it would be possible”. But that’s a fairly sizeable ‘if’.
This is all also true the other way around. If say, you have a trans woman (legally considered male), who is straight (attracted to men), she could legally be civilly partnered. But in order to gain legal gender recognition, that would have to be dissolved first because heterosexual civil partnerships are still banned in the UK. As for how easy it might be for a trans person to have a religious marriage (rather than a civil one), within the Church of England this is apparently okay – though clergy do have the right to refuse to conduct such marriages as long as their church is still made available.
So this has brought us to where things are now. Yes, they introduced civil marriage, so now same-sex couples can get around the above stuff. Unless you’re trans where you still have to do that ridiculous get-divorced-to-get-recognised-and-get-remarried-again thing. HOWEVER. They have introduced a way for a member of a married couple to get their gender recognised without separating first. The same provision allows a civilly partnered couple involving a transgender person to simply ‘convert’ that civil partnerships into a marriage without separating first. This comes into effect on 10th December 2014. The big problems are first: if you are civilly partnered, you HAVE to change it to a civil marriage or split before anyone can get a Gender Recognition Certificate. Because no heterosexual civil partnerships, remember? Second: before a married trans person can have their gender legally recognised, their spouse has the right to veto this. Sarah Brown says:
So basically, if your spouse can’t, or won’t sign the consent form, you have to divorce them to get your rights. This creates what is possibly the most passive-aggressive legally sanctioned way to initiate a divorce ever, i.e. “I don’t want to divorce you, but I’m going to veto your human rights until you divorce me”.
Getting a GRC is a heavily involved process, and requires that a person has lived as their identified gender for at least two years. Pretty hard to do that in most marital arrangements without working out what the future holds for the relationship. As this article highlights, some partners are not supportive of their partner’s transitions, and may throw up roadblocks to try and prevent this from happening. Selfishly and delusionally hoping that by making transition considerably more torturous, their partner might decide ‘it’s not worth it’. This misunderstands transition in the same way that the government clearly has. It isn’t a choice like going on holiday, whereby not doing so makes you disappointed. Not being able to transition can cause enormous harm, or cost lives. The partner should not have any legal right to block this. Any relationship with healthy communication going on would either have already ensured that it’s fine and they’re staying together, or have already separated or begun separations. Or made a decision one way or another. This simply creates the possibility for spiteful, transition blocking action on the part of estranged partners.
Another thing there is to understand is that in the United Kingdom of Great Britain and Northern Ireland, marriage is a devolved issue. This means that England, Scotland, Wales, and Northern Ireland get to make up their own minds on what they want to be allowed. The first same sex marriages will be able to occur in Scotland on 31st December 2014, for instance. Northern Ireland however has decided not to allow same-sex marriages, and will treat same-sex marriages from other jurisdictions as civil partnerships… hopefully from having read the above, you can see obvious problems with this. Public opinion is almost a dead even split, but this shouldn’t really matter. Human rights shouldn’t be put up for a vote, especially when the ones voting aren’t the ones affected.
For as long as the unions between two (or more…?) people are bound up in legal and religious anxieties about the genders of the people involved, we will never have true equality. Don’t forget that as regards non-binary people, there isn’t a single official word on what they can or can’t have.