Trans Widows’ Voices Guidance on the Women and Equalities Committee’s Call for Evidence regarding Reform of the Gender Recognition Act.
Enquiry Question: Does the spousal consent provision in the Act need reforming? If so, how? If it needs reforming or removal, is anything else needed to protect any rights of the spouse or civil partner?
It is surprising and alarming that this matter is being scrutinised again, so soon after the Government published its response to the Gender Recognition Act Consultation in September 2020.
This provision does not need reforming. It is a well-designed piece of law, which aims to protect Trans Widows in England and Wales, for whom the constant pressure on this amounts to bullying.
Trans Widows are women who have split or who are in unhappy relationships with male transitioning partners. Further details regarding trans widows can be found on the Trans Widows Voices Website. The plight of Trans Widows is now gaining increasing attention from feminist groups and writers.
Rather than “Spousal Consent”, a more accurate name for this provision of the Gender Recognition Act is “Spousal Exit Clause”.
In the debate over the Spousal Exit Clause, there is a tendency to place great weight on the perspective of the transitioning partner but little attempt has been made to seek the opinions of the people (mostly women) whom the provision is designed to protect.
The Spousal Exit Clause ensures that heterosexual Trans Widows do not find themselves in legally same sex marriages that they did not sign up to. Were they to do so, it would constitute a wholly unreasonable alternation to the basis of the marriage caused by the unilateral decision of one party. This is why the current level of protection of the status of the marriage is justified.
Additionally it protects lesbians and gay men in same sex marriages from being forcibly made legally heterosexual.
Increasing evidence is available that many trans widows are in relationships that are coercive and abusive, any change to the law that would make it more difficult for them to exit their marriage must be resisted.
The government’s GRA consultation response provides a clear summary of the law stating:
In order to obtain a full GRC, married applicants must have the consent of their spouse. If an applicant’s spouse does not consent, the applicant may be awarded an “interim” GRC, which can be used by either party as grounds to annul the marriage.
[This] reflected the understanding that marriage is an agreement between two parties, both of whom should have a say in whether they want the agreement to continue in the case of a legal gender change of one of the parties.
The interim GRC gives either party the possibility to annul the marriage, and the interim GRC holder to obtain legal gender recognition after the annulment of the marriage.
Whilst many women in this situation are able to divorce, the provision for annulment is particularly important to those trans widows who cannot access divorce for cultural or religious reasons. Suggestions that claim that there is no need for annulment to be available, or claim that the introduction of "no fault divorce" would do away with the need for the Spousal Exit Clause, should be rejected for this reason.
It can be seen that the provision is not a veto on the transitioning partner being able to proceed with their transition, indeed all it means is that their application for a Gender Recognition Certificate may be delayed. They can still change their sex marker on their passport, driving license and many other documents, and can still proceed with social and medical transition.
Claims that the Spousal Exit Clause can somehow be used to delay transition can only be based on misinformation and misunderstanding of the law.
The relevant section of the law can be found here.
It would be a shame (and detrimental to the reputation of the Committee) to continue to further propagate a misunderstanding of the law, which was pointed out relatively recently in the House of Lords by Lord Keen of Elie, whose comments were summarised in the Spectator.
Please Note: If you make a submission of evidence to the committee it is very important that you do not share it publicly until after it has been published by the committee (which will be at some point after the call for evidence closes). If you do share it prior to this it may be excluded by the committee.