Friday, March 23, 2012

Till Political Convenience Do Us Part

Alone again - naturally

The coalition government has begun a three month public consultation on equal civil marriage for same sex couples.

Central to this debate is the argument that having two kinds of legal partnership -- civil partnership for same sex couples and marriage for heterosexual ones -- is divisive and discriminatory. Why, if they are meant to be the same thing, should this difference persist? And, if they're not the same thing, does this imply that one is inferior to the other?

The government proposes to make civil marriage (the legal part of what heterosexual couples currently sign up to) available to same sex couples as well. They're not proposing to impose changes on the religious aspects of marriage.

At the same time the coalition proposes to retain civil partnership for same sex partners who don't want the new option, but not to open it to opposite sex couples.

Arguments against all aspects of these proposals will consume the media during the consultation period, and undoubtedly again when a Bill is debated in Parliament.

All this noise threatens to erase the viewpoint of one group whose rights could be the "collateral damage" in whatever accommodation is made. These are the people whose interests I want to discuss.

Crisis meeting

It was the Spring of 2004 and I was attending a crisis meeting at the Department for Constitutional Affairs. The ministry was responsible for the passage of the Labour Government's Gender Recognition Bill, which had already come through the House of Lords. Now it was about to go into Committee stage in the Commons, and the Government was suddenly scared by the chorus of criticism for part of it. We were leading that criticism.

My three colleagues and I sat in a small office around a table with Lord Filkin and David Lammy MP, the Bill Ministers in the Lords and Commons. They were joined by a small team of their officials.

'We' were 'Press for Change', the lobby organisation which had fought for the passage of a Bill to recognise transsexual peoples' privacy and marriage rights. And now we were arguing fiercely against a part of the legislation we had worked long and hard to bring about.

A long fight

The Gender Recognition Bill was the result of 20 years of persistent lobbying by trans people after the famous divorce case of April Ashley in 1970.

The unfortunate consequence of that case, 35 years previously, had been to prevent transsexual people from marrying as members of the gender they presented as. Subsequent decisions had then stripped away further rights in order to be consistent with that decision.

The lobbying had begun in the mid 1980's with a case taken to the European Court of Human Rights by trans man Mark Rees, who subsequently co-founded Press for Change. He lost his challenge.

Two other cases had been lost as well, in 1990 and in 1998, but with progressively smaller margins.

Then, in 2002, the European Court of Human Rights finally got tired of the UK's stance and ruled that the absence of a mechanism to change birth certificates and permit marriage in a transsexual person's acquired gender breached BOTH Article 8 of the Convention (the right to private life) and Article 12 (the right to marriage and family life).

The Gender Recognition Bill was the result of the government's decision to accept defeat and comply. It was debated in Parliament through the first half of 2004; first in the Lords and then the Commons.

The debates took place before Parliament started to consider the Civil Partnership Bill. However, a crucial part of the bargaining for that Bill had already been struck. Civil Partnerships were to be exclusively for same sex couples and Marriages were to be exclusively for opposite sex couples.

Inconvenient exceptions

Trans people had long made a mockery of that concept.

When opposing all those cases in the European Court, the Government had argued many times that transsexual people weren't being denied the right to marry. A trans woman (being male in the eyes of the law) was quite entitled to marry a cis-gender woman, they argued.

The fact that the resulting couple was seen by everyone except the government as a same sex marriage seemed never to trouble the government or its legal counsel. Their existence challenged the whole premise on which the denial of same sex marriage was based.

An increasing number of trans people defied convention another way too: by remaining married when they transitioned. Their gender reassignment transformed an opposite sex marriage into a same sex one in all but name.

Surprisingly, gay and lesbian campaigners never really capitalised on that. We should celebrate those marriages too, for there can be few tougher tests on a relationship than to survive such a dramatic change in one partner.

Above all, I admire the spouses: the heterosexual women who married what they thought was a man and decided, when that turned out not to be the case, that their love and partnership was more important than a gender and sexuality label.

I always wonder at the flexibility of women (and it has mostly been women) who could go through the redefinition of their sexual orientation in other people's eyes with such patience and dignity.

Now, however, those latter couples were a fly in the Government's ointment.

If the transsexual partner in such a marriage was to receive legal recognition then that would create a marriage in which the partners were both legally the same sex. It would break the faustian pact that the government had made with religious leaders to allow the Civil Partnership Bill to pass relatively smoothly.

Something had to give. The something was a ghastly and immoral decision on the part of the Government to throw those inconvenient marriages under the bus.

Disposable marriages

Pause for a moment to take that in. I am still not sure it is possible to find such a precedent anywhere else in legal history, anywhere in the world.

Governments may have prohibited various kinds of marriage. However, NO government had ever legislated before in a way that required a lawfully married couple to end their marriage. It goes against the whole idea.

Marriage is marriage because it is supposed to be for life. "Let no man put asunder" and all that. The vows are supposed to mean something. "In sickness and in health". "For richer for poorer". "Till death us do part".

OK, society has watered that down over the last fifty years. If anyone devalues marriage then it must be the heterosexual couples who marry with fingers crossed, knowing that if it doesn't work out after the passion has passed then they can easily get divorced again.

Compared to that transient attitude to commitment, those transsexual people and their spouses who stayed together through the ultimate challenge are a model to hold up and admire. That's love. That's commitment. That's remembering your vows.

Weasel words

The Government argued, of course, that such couples didn't have to dissolve their marriages really: the transsexual partner could just elect instead not to apply for full legal recognition of their gender.

They even proposed an immensely tortuous middle road, where a trans person could obtain confirmation of their eligibility for legal recognition, use that to dissolve their marriage, complete the recognition process (as a singleton) and then round it all off by entering a civil partnership in their new legal gender.

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 to complete the process inside a day. Dissolve your marriage in the morning and be in a Civil Partnership by teatime.

My colleague Professor Stephen Whittle ruefully remarked that we should just pray that neither partner fell under a bus in between. For the point was that in dissolving their marriage for this ridiculous process the couples would be giving up a raft of accumulated legal rights and entitlements that are part of the very point of marriage. All sorts of questions were opened up regarding the continuity of insurance and pension rights.

Human rights

And let's not forget that this law was supposed to be implementing a unanimous decision of the European Court of Human Rights on TWO fundamental principles: the right to privacy AND the right to marriage and family life.

You don't obtain the second with a process which requires the individual to dissolve the marriage they've got. And you don't obtain the first by insisting they can't have it unless they submit to this madness.

This was a nightmare generated entirely by a government which thought it could sacrifice the marriages of an unknown number of transsexual people (and their partners) in return for a deal to secure Civil Partnerships for gays and lesbians.

Collateral damage

I'll repeat that, as it's important to reflect on the political reality...

Married trans people and their partners were thrown under the bus by the Labour government in order that religious opponents could be appeased and gay and lesbian people could have Civil Partnerships.

They call it collateral damage in war.

There were no shortages of people who saw this for what it was.

The Bishops in the House of Lords voted against the provision because, much as some were opposed to trans people's legal recognition, they saw the dissolution of successful marriages as a moral crime. The Parliamentary Joint Committee on Human Rights also expressed their concerns, along with organisations such as Liberty.

Defending the indefensible

Sitting in that office in the Spring of 2004, my colleagues and I hammered the points home. Messrs Filkin and Lammy could not defend the indefensible.

Their officials looked grey. Secretly I think they were on our side and it was clear that the decision wasn't within the gift of the two Bill Ministers present. Their orders came from above. We never did confirm which member of the cabinet was responsible, though we all had our suspicions.

Thus it was that, in spite of winning all the arguments, this monstrously cruel requirement was passed into law with the rest of the Gender Recognition Act (which was otherwise an exemplary piece of legislation).

Four of us eventually collected honours for our part in making the rest of the Act so good, but we never forget what happened that day. Winning the argument but losing the war.

Back to the present

Fast forward now to the present day. Over four thousand people have obtained legal recognition of their acquired gender since the Gender Recognition Act came into force in April 2005.

A handful of those who were already married (maybe fifty or so) decided to go along with the travesty of dissolving their loving marriage to obtain that recognition. Several hundred more decided that it was too high a price.

So there are plenty of transsexual women who are still male in the eyes of the law just so that they can remain married to the partner they love.

The Conservatives have now decided that the time is right to bring forward equal civil marriage for all. This means that your gender ought to be irrelevant in all circumstances.

People who already have Civil Partnerships will (for a fee) be able to convert into Civil Marriages if they wish. Or, as the Government envisages, they can stay in the Civil Partnership if they prefer.

The attention will be on the bizarre anomalies proposed ... where a same sex couple can enter a Civil Partnership on religious premises, but not a Civil Marriage ... and where same sex couples can pick two brands of legal partnership but opposite sex couples can only have the one.

Something for the trans folk

The Liberal Democrats have ensured that the coalition's marriage proposals contain something to address the problem created for transsexual people by the previous administration.

People who are already married will not need to dissolve that marriage in order to qualify for legal recognition. That's because their gender in marriage will no longer matter. Hooray, you say. Isn't that wonderful? But look carefully at the small print...

The government proposes that if a same sex couple are already in a civil partnership and one partner wants to seek legal recognition because of their gender reassignment then they can't. That's because the government isn't proposing to allow opposite sex partners to have civil partnerships. That includes, in their eyes, remaining in one.

Deja Vu?

Deja Vu? You bet. There will, of course, be a mechanism to dissolve the partnership, obtain the recognition, and then get married ... all before supper. But if it was wrong to do this the other way around, and the government thinks that ought to be fixed, why create the same cruel requirement in reverse?

What this boils down to is a fundamental failure of respect for the relationships of transsexual people and those who love them. The government are demonstrating that when a trans person's relationship stands in the way of an otherwise neat policy solution, it is the relationship that has to change, not the rules.

This time we must not allow transsexual people to be thrown under the bus as deals are fixed up for their more fortunate gay and lesbian associates.

It was wrong in 2004 to legislate an obligation to dissolve trans marriages. It is wrong in 2012 to propose the same for trans civil partnerships. Only this time let's not brush it under the carpet.

What about the dispossessed?

And spare a thought too for those trans people and their partners who jumped through all the hoops that the government created. The equal marriage proposals promise that they, too, can convert their Civil Partnerships (the ones they were forced to transfer to) into Marriages ... for a fee.

Think about that...

The government required you to dissolve your happy stable marriage in order to access rights decided for you by the European Court. It charges you for the legal recognition and for the civil partnership you enter instead. And then, seven years later, the government changes the rules and says you can now have a marriage again ... so long as you pay another fee.

If you were one of those couples I imagine you would be annoyed.

Expendable people

And what message does this send? Transsexual people's relationships are expendable. If they're in the way of a policy for a larger majority then they'll just have to lump it.

Over the next few months proponents of equal marriage will be wanting to stress how the core value of marriage is the intended permanence, and the setting which that creates for two people to love and care for each other for life. I support that. And yet the validity of that case is compromised when the proponents demonstrate that they are prepared to flip the rules for one tiny group of people every time they get in the way.

When equal civil marriage comes about I would like those transsexual people and their partners to receive an apology from the state for the unnecessary pain they were caused. I'd like to see the offer to restore the marriages that should never have had to be dissolved. And I don't want those people to have to pay again.


Stephen Whittle said...

It is a great pity you have missed out X, Y & Z v The UK Govt [1997] ECHR, app. no. 21830/93, in which the Court recalled that the notion of "family life" in Article 8 is not confined solely to families based on marriage and may encompass other de facto relationships.
To amount to "family life", the court held, a number of factors may be relevant, including whether the couple live together, the length of their relationship and whether they have demonstrated their commitment to each other by having children together or by any other means.
The Court noted that X, a transsexual man, had acted as Z's "father" in every respect since the birth & as such Court concluded he relationships between him, his partner, and her child, amounted to de facto family life. The was the first time the court held a non-heteronormative family to be just that.
As such, it opened the possibility of Gay / Lesbian families, as the court later confirmed in E.B. v France (2008) HER app. No. 43546/02.

Christine Burns MBE said...

Very true Stephen. And you explain the relevance of X,Y, & Z to the bigger picture far better than I could.

I think (in a more academic treatise) that you'd wish to mention the Bellinger case too, as that also dealt with issues where trans people, simply by living their lives, made a mockery of binary rules that only apply to cis-gender people.

In this instance I thought that mentioning X, Y & Z in the article would run the risk of overcomplicating a necessarily brief historical recap, which was only there to provide background to the main argument.

It's great, however, that people can extend understanding through comments like yours, however. I'm sure most readers have no idea how the trans legal cases helped LGB rights cases through establishing building block principles. It makes it all the more galling when people carry on and sideline the community that helped them

- Christine