Consultation on the Draft Marriage and Civil Partnership (Scotland) Bill: Analysis of Written Responses

7 Transgender People

7.1 The final part of the consultation considered marriage-related issues affecting transgender people and, specifically, whether married transgender people should need to divorce before obtaining a full Gender Recognition Certificate (GRC). Under the current provisions, a transgender person faces a choice between staying in his or her marriage and obtaining a full legal recognition in his or her acquired gender. The proposed changes would enable a transgender person to stay in the relationship, if that is what both parties to the marriage wanted.

Question 18: Do you have any comments on the detailed proposals for allowing transgender people in a relationship to stay together, if they and their partner wish so, when obtaining the full gender recognition certificate?

7.2 Around 11,500 respondents made a comment at this final question. Many of these respondents gave support to the Scottish Government's intended approach, which was sometimes referred to as compassionate, caring and thoughtful.

7.3 In practical terms, it was suggested that the revised gender recognition process as proposed is not, but should be, simple, user-friendly and incur no greater costs to the applicant than under the current process. One of the primary concerns raised was the intended requirement for a second marriage ceremony. Some respondents suggested that to require such a ceremony effectively undermines the whole purpose of the legislative change, namely that legal recognition of the relationship simply continues when gender recognition is granted. The cost implications for the couple of requiring a second ceremony was also a cause for concern. Alternatives suggested included the following outline approach:

• When the applicant applies to the Gender Recognition Panel (GRP), both the applicant and their partner submit a statutory declaration stating that they wish to remain married.
• Following approval by the GRP, full gender recognition is awarded and the GRP contacts the National Records of Scotland (NRS) to inform them of the successful application.
• NRS then makes a new marriage certificate available at the same time as the applicant's new birth certificate is issued.

7.4 Another issue raised was the need for the process to be effective for those who are resident in Scotland, but who were married or entered into a civil partnership outwith Scotland. As well as including provisions to ensure the continuity in Scotland of a post gender recognition marriage from outside the UK, it was suggested that particular provisions may be required for applicants who have a civil partnership registered outwith Scotland. One proposed approach (assuming that opposite sex civil partnership is not being introduced) allows for the civil partnership to be converted to a marriage as part of the application to the GRP.

7.5 Other issues raised or suggestions made included that:

• Some work may be required to ensure that neither partner in a marriage where one party has transgendered loses any pension rights. In particular, it was suggested that the Scottish Government should ensure that the principle of non-regression applies to public sector pension schemes for which it is responsible. This would ensure that there is no loss of accrued pension benefits when a married person obtains gender recognition.
• Currently, applicants who receive an interim GRC because they are married or in a civil partnership have only six months to initiate divorce or dissolution proceedings in order to obtain a full GRC. Otherwise, the interim GRC expires and the application process must be started again from the beginning. The interim GRC validity period should be extended to two years, in order to allow more time for either party to initiate divorce proceedings or for the non-transitioning spouse to confirm that they wish to remain in the marriage or civil partnership. This would dramatically reduce the pressure on couples during the gender recognition procedure and give them the best possible chance of maintaining their marriage or civil partnership.
• Some transgender people have dissolved their marriages in order to obtain gender recognition, although they and their partner would have preferred their marriage to continue. It is likely that people in that situation will have registered a civil partnership to replace their lost marriage. Changes proposed in the draft Bill will allow them to change the status of that civil partnership to a marriage, which will in effect be backdated to the date of their civil partnership. However, that will still leave them in a position where they have been married twice, with a brief unmarried gap during which they lost legal protections. This problem could be addressed if, when the civil partnership was then converted to a marriage, it was deemed to have started at the date of the original marriage.
• The implications of someone who has obtained a full Gender Recognition Certificate wanting the name on their marriage certificate to be changed to reflect their new gender will need to be considered.