All too often the rhetoric surrounding the equal marriage campaign is about allowing same-gender couples to marry, and “opposite-gender” [sic] couples to form civil partnerships. The impact of the current legal setup on trans*, genderqueer and gender-variant people is usually ignored or at best given a passing mention.
At present the legal situation for trans*, genderqueer and gender-variant people is that they can marry or form a civil partnership based on their legal “sex”. This is either based on their birth certificate, or after lots of hoop jumping, a Gender Recognition Certificate which effectively allows a person to change their birth certificate from female to male, or male to female.
One of the requirements of getting a GRC, and gaining legal recognition, of your gender is to get a divorce or dissolution of your civil partnership – since obviously it would be unthinkable for a trans woman who was married to a woman prior to her GRC to have her same-gender relationship legally recognised as a marriage. For many trans* people this means being forced to go through the costly and pointless process of divorce/dissolution followed by civil partnership/marriage, or the alternative of never having their gender recognised in law.
If that sounds complicated then I’m afraid it gets far worse from here on. For trans*, genderqueer and gender-variant people who identify as a non-binary gender (i.e. something other than woman or man), or who refuse to go through the GRC process for whatever reason, the legal situation becomes blurry. Really it needs a test case to go through the courts for a precedent to be established, but I’m aware of no such case, and so this is the best sense I can make of the mess that is the current law.
The way that laws surrounding trans*, genderqueer and gender-variant people is written assumes that they will all go through the GRC process and will all want to change their legal sex to either female or male. And assumes that nobody falls outside of this. As such, at present the law makes no explicit provision for a person who was male assigned at birth (maab) but doesn’t identify and/or express themself as a man, and has no GRC to marry or get a civil partnership. It’s left to the discretion of a registrar (and likely the courts) to decide whether can legally marry a man or a woman (or neither). Do they go by the birth assigned gender? Do they go by how the person identifies (which might not be binary)? Do they go by how they express themself femininely, androgynously, masculinely or otherwise? Or do they turn the person away and say “you don’t fit the rules for marriage or civil partnership”?
So what does this mean for equal marriage?
Simply by giving marriage and civil partnerships rights to all couples regardless of their genders, it does away with all these complicated rules that govern trans*, genderqueer and gender-variant peoples present rights. It does away with the need to get a divorce or disollution (only to get a civil partnership or marry immediately afterwards) to obtain legal gender recognition. And it does away with the ambiguous position that people without GRCs or don’t identify or express themselves in a “conventional” female or male way. It guarantees all trans*, genderqueer, and gender-variant people the right to marriage and civil partnership (which they might or might not already have) and it makes obtaining GRCs far simpler.
So the equal marriage campaign is inclusive of everyone in society?
It’s good for people who want to get married or want a civil partnership. And it’s inclusive of LGBT people.
But the campaign only recognises certain types of relationships, and in particular doesn’t give equal rights to those co-habiting couples who don’t wish a state sanctioned marriage or civil partnership, nor does it give equal rights to those in poly relationships. But these issues deserve another post to do them justice, and will have to wait until another day.