Amendments 68, 70 and 72 to remove the Spousal Veto were designed by the Scottish Transgender Alliance and the Equality Network and submitted by Linda Fabiani MSP to the Scottish Parliament’s Equal Opportunities Committee Stage 2 Debate on the Marriage and Civil Partnership (Scotland) Bill. The Committee approved amendments 68, 70 and 72 unanimously on 16 January 2014.
68 In schedule 2, page 41, line 20, at end insert—
<4E Married person with interim certificate: issue of full certificate on application to the sheriff (Scotland)
(1) A person may make a summary application to the sheriff for the issue of a full gender recognition certificate where—
(a) an interim gender recognition certificate has been issued to the person, and
(b) the person is a party to a protected Scottish marriage.
(2) The sheriff must grant an application made under subsection (1) if the sheriff is satisfied that—
(a) the applicant was a party to a protected Scottish marriage at the time when the interim gender recognition certificate was issued,
(b) the applicant is still a party to that protected Scottish marriage, and
(c) the application was made within the period of six months beginning with the day on which the interim gender recognition certificate was issued.
(3) If an application is made under this section, the sheriff must give the applicant’s spouse—
(a) notice of the application, and
(b) if the sheriff grants the application, notice of the issue of the full gender recognition certificate.
(4) For the avoidance of doubt, where an application has been granted under subsection (2), the applicant is to be treated for the purposes of section 1(1)(b) of the Divorce (Scotland) Act 1976 as a person to whom an interim gender recognition certificate has been issued.”.>
70 In schedule 2, page 42, line 37, at end insert—
<( ) Regulations under sub-paragraph (1)(a) must provide that where a full gender recognition certificate has been issued to a person under section 4E, the marriage must not be registered unless the person’s spouse consents in writing to that registration in the form prescribed by the regulations.>
72 In schedule 2, page 43, line 11, leave out <or 4C> and insert <, 4C or 4E>
Purpose of the amendments
Amendment 68 is the main amendment – it allows a married trans person, to whom an interim gender recognition certificate (GRC) has been issued by the UK Gender Recognition Panel, to convert it to a full gender recognition certificate by applying to the sheriff. (An interim certificate has no effect on the person’s gender; only a full certificate grants gender recognition.)
The procedure for obtaining a full GRC will start with the married trans person applying to the Gender Recognition Panel in the usual way. They can apply without their spouse’s written consent, and will then receive an interim certificate, which they then send to their local sheriff court, for conversion to a full certificate. That conversion is an administrative process, not a judicial process – so long as the person is in a Scottish marriage and the application is made within six months of the issue of the interim certificate, the full certificate must be issued to them.
The amendment requires that the sheriff must notify the applicant’s spouse of the application to convert the interim certificate to full, and also of the granting of the application. This enables the spouse to start divorce proceedings on grounds of the issue of the interim certificate, if they wish to. The spouse will continue to have the right to a divorce on grounds of gender recognition, at any time in the future, and such a divorce is non-contestable by the trans spouse.
There are two practical reasons for having the conversion from interim to full certificate done by the sheriff (rather than have the Gender Recognition Panel directly issue the full certificate):
- The Gender Recognition Panel operates on a UK-wide basis, and is funded solely by the UK Government. The amendment therefore avoids making any changes to the rules operated by the Panel, so that the Panel’s procedures remain consistent across the UK. If a married trans person applies to the Panel without their spouse’s written consent, they will get an interim certificate, in all parts of the UK, but in Scotland they will be able to exchange this for a full certificate. The amendment is a specifically Scottish solution to the problem.
- The sheriff court already converts interim to full certificates when it grants a divorce on grounds of interim certificate, so the sheriff court is the obvious body to provide the conversion from interim to full in this alternative case also.
The administrative conversion procedure by the court does not involve any judicial discretion – so long as the basic conditions are met, the conversion from interim to full certificate is made. This is because it is important that the process is an administrative one, rather than an adversarial process setting the two spouses against each other. There are other cases where legislation requires the sheriff to act without judicial discretion, so this is not particularly unusual.
Details of amendment 68
The amendment inserts a new section 4E into the Gender Recognition Act, to provide for a full gender recognition certificate to be issued by the sheriff to a married person to whom an interim certificate has been issued by the Gender Recognition Panel.
Subsection (1) of new section 4E provides that a person who is party to a protected Scottish marriage (as defined elsewhere in the bill – it simply means a marriage solemnised under Scots law), and who has an interim gender recognition certificate (GRC), can make a summary application to the sheriff for a full gender recognition certificate.
Subsection (2) states that the sheriff must grant the application if the applicant was a party to a protected Scottish marriage when they obtained the interim GRC and remains so, and the application is made within 6 months of the interim GRC having been issued.
The sheriff is not given any discretion in this matter because it is intended to be an administrative procedure. The role of the sheriff is to ensure that the conditions for making an application have been met and to issue the full GRC. This is similar to the situation where the sheriff grants decree in divorce proceedings brought on grounds of interim gender recognition – the sheriff similarly has no discretion as to whether to issue a full GRC to the trans party to the proceedings; if the divorce is granted, the full GRC must be issued.
Subsection (3) imposes a requirement on the sheriff to notify the applicant’s spouse that an application has been made, and also to notify them of the granting of the application.
Subsection (4) puts beyond doubt that, even after the full GRC has been issued, either party to the marriage can continue to use the fact that an interim GRC was previously issued as grounds for a non-contestable divorce.
Amendment 70 provides that, where a full gender recognition certificate has been issued to a married trans person under the procedure in amendment 68, the marriage cannot be re-registered, and a new marriage certificate issued, unless the trans person’s spouse consents to that. The details will be specified in regulations made under new paragraph 20A of schedule 3 to the Gender Recognition Act, inserted by para 8(2)(c) of schedule 2 to the bill.
This achieves a fair balance of rights between the trans and non-trans spouse: amendment 68 allows the trans spouse to obtain gender recognition, which legally changes their gender, but under amendment 70 they would need their spouse’s consent for the issue of a new marriage certificate showing the marriage between them as a same-sex marriage.
Amendment 72 ensures that the continuity of the marriage is not affected by the issue of the full GRC under amendment 68. Together with the rules on pensions in the Marriage (Same Sex Couples) Act 2013, this will ensure that neither spouse loses any of their marriage-related rights when the full GRC is issued.
Rationale for the amendments
We are strongly of the view that spousal consent for gender recognition is unnecessary. We agree that the correct balance between the rights of the trans and non-trans spouse has not been struck in the bill as it stands – these amendments correct the balance.
As the Committee heard at stage 1, the bill as it stands allows the spouse of a trans person effectively to “veto” the person’s gender recognition, by withholding the written consent that is needed for the Gender Recognition Panel to issue a full gender recognition certificate. Without that consent, the Panel can only issue an interim certificate, which has no legal effect on the trans person’s gender.
Many trans people and their allies are very concerned about this. The spousal consent requirement in the England and Wales Marriage (Same Sex Couples) Act 2013 generated a great deal of criticism from trans people, and has led to many feeling deeply unhappy with that legislation. We are unaware of any spouses of trans people who feel strongly that their consent should be sought prior to their spouse obtaining gender recognition. On the contrary, partners of trans people who have contacted us oppose the consent requirement, which they see as contrary to their partner’s rights.
By the time the trans person applies for gender recognition, they have already been living full-time in their acquired gender for at least two years. They may have had hormone and/or surgical treatment. The law does not require them to obtain their spouse’s consent for any of those changes. Obtaining legal gender recognition is the last step – the legal recognition of the life changes that have already happened. Unlike the earlier steps, legal gender recognition does not change the practical nature of the marriage.
Our strong view is that the fact that the trans person is issued with gender recognition causes no actual detriment to the non-trans spouse. Conversely, the trans spouse can suffer a great deal of discrimination and other practical detriment while their birth certificate does not reflect the gender they live as. As the European Court of Human Rights found in Goodwin v UK, legal gender recognition is a human right. This should not be contingent on the consent of another person.
The amendments ensure that the human rights of the non-trans spouse are protected in a number of ways. Firstly, their inheritance, pension, parental, and all other rights remain the same, because the bill and the amendments provide that the continuity of the marriage is not affected by gender recognition.
Secondly, the amendments provide that the marriage cannot be re-registered, and no new marriage certificate can be issued, without the consent of the non-trans spouse.
Thirdly, as the committee identified, if the non-trans spouse reaches the decision that they no longer wish to remain in the marriage, they have the non-contestable right to a divorce. The amendments impose a duty on the sheriff to notify the non-trans spouse of the application for the full gender recognition certificate, and then of the granting of the certificate, so that the spouse can make an informed decision about this. There is no time pressure on them; they can take as long as they want to decide whether or not to apply for a divorce.
Of the nine European countries with same sex marriage – Belgium, Denmark, Iceland, The Netherlands, Spain, Sweden, Portugal, Norway and France – not one requires spousal consent to be obtained for gender recognition. None of these countries has been subject to an ECHR challenge for failing to protect the rights of the non-transitioning spouse. It is more likely that the bill would be challenged for infringing the rights of the trans spouse, if it passed with the spousal “veto” still in place.
It is also important also to note that many of those countries have recently faced human rights based challenges to their legal gender recognition processes, because they imposed a requirement to divorce before gender recognition could be granted. As a result, the divorce requirements have simply been removed, but without imposing a requirement for spousal consent for gender recognition. No concerns regarding the human rights of the non-trans spouse have been raised.
As trans rights progress across Europe, more and more countries are treating gender recognition as a purely personal process and implementing simple administrative procedures for it to be expediently obtained. Introducing a process requiring the consent of the trans person’s spouse would be out of line with best practice, and would mean Scotland taking a step backward compared to others in Europe.