Review of the Gender Recognition Act 2004: consultation analysis

4. Scottish marriage

4.1. The Gender Recognition Panel can only issue a full GRC to a married applicant if their spouse has confirmed that they are content to stay in the marriage. The Scottish Government is aware of concerns about the requirement for the consent of a spouse in relation to an application for legal gender recognition under the 2004 Act.^[8]

4.2. As the consultation paper notes, the requirement may give a trans person’s spouse inappropriate power to determine the trans person’s access to their legal rights. However, it can be seen by others as a reasonable balance between the rights of the trans person to seek recognition of their acquired gender and those of their spouse to decide whether they want to stay in the marriage.

Question 7 - Should it be possible to apply for and obtain legal gender recognition without any need for spousal consent?

Chart 7: Question 7

4.3. A majority of respondents, 70% of those answering the question, thought that it should be possible to apply for and obtain legal gender recognition without any need for spousal consent. A further 24% of those answering did not think it should be possible and 6% did not know. The pattern of response for those resident in Scotland was very similar to that for all respondents.

4.4. Around 3,495 respondents went on to make a further comment.

Comments by respondents who thought it should be possible

4.5. Around 1,790 respondents who thought it should be possible to apply for and obtain legal gender recognition without any need for spousal consent went on to make a further comment. The majority of these respondents, around 6 in 10, believed that people have personal autonomy and a right to self-determination, including regarding their gender identity. Respondents commented on people being able to make their own choices, particularly about an issue that is so fundamental to wellbeing and happiness. Some went on to suggest that any other approach impinges on the human rights of the individual concerned. Specifically, it was suggested that no person should have this level of control over another individual, especially over their identity and that to do so is a violation of the basic human rights principles in the UN’s Universal Declaration of Human Rights.

4.6. Respondents also commented on the potential for spousal consent to cause serious problems, most frequently in relation to abuse or manipulation. Around 1 in 7 raised this concern, with further comments including that spousal consent can be very dangerous for trans people in abusive relationships. An LGBT Group respondent commented that the limited research available suggests that trans people are at a high risk of domestic abuse, and that their own work supports this suggestion. They summed up the comments of others in suggesting that the level of power and control spousal consent gives someone over their trans partner is very concerning, particularly if their partner is abusive, when they may use that control to further ridicule, deny, and disempower.

4.7. On a similar theme, a small number of respondents raised concerns that spousal consent could up be used as a bargaining tool in any divorce, particularly in relation to child residence or contact arrangements and any financial settlement. Others noted the possibility of spousal consent being withheld when a couple were separated or estranged and noted that this allowed someone to continue to exercise control over their former partner despite the relationship having come to an end. It was also suggested that spouses who did not agree with their partner transitioning could seek to delay the process.

4.8. Although not agreeing with spousal consent, around 1 in 5 respondents commented that a spouse transitioning should be valid grounds for divorce or the annulment or dissolution of any marriage. This issue is discussed further at Question 9.

4.9. Finally, a smaller number of respondents commented that there are a range of other aspects of transitioning that do not require spousal consent, such as having hormone therapy or surgery, and that there is no reason to introduce what could be seen as a backward step. Some felt that spousal consent is, in any case, an outdated concept that simply has no place in 21st century Scotland.

Comments by respondents who thought it should not be possible

4.10. Around 1,240 respondents who thought it should not be possible, went on to make a further comment.

4.11. The most frequently raised point, made by around 1 in 2 respondents, was that when people enter a marriage they are entering a legal arrangement or contract and that it is not reasonable to change the terms of that contract without the agreement of both parties. Further comments included that it is also not reasonable to change the nature of the contract – for example into a same sex marriage when it had been a mixed sex marriage or vice versa – without both parties agreeing. It was also suggested that to do so would be a fundamental betrayal of the marriage covenant and makes spousal consent meaningless, including the non-trans spouse’s consent to being married in the first place.

4.12. Other points made included that removing spousal consent would be an attack on the sanctity of marriage and would undermine the role of the family. Specific points made included that:

• Removing the need for spousal consent would be a violation of the right to family life under Article 8 of the European Convention of Human Rights
• As sexual orientation is a protected characteristic, and as sexual behaviour is basic to marriage, it is possible that the rights of the non-trans spouse under Sections 11 and 12 of the Equality Act 2010^[9] would be breached.

4.13. The nature of marriage as a partnership in which the rights of both parties should be respected was also raised. Further comments made by around 1 in 10 respondents highlighting this issue included that the rights and feelings of both parties need to be acknowledged, with those of the trans partner not being considered more important than those of their spouse. It was suggested that any obtaining of legal gender recognition must be the decision of both spouses while the couple remain married. A smaller number of respondents suggested that there should be a requirement, possibly a legal requirement, for consultation or discussion with the spouse affected by their partner’s decision to transition.

4.14. In terms of remaining in a marriage, around 1 in 8 respondents commented that one of the spouses transitioning should be automatic grounds for divorce. This issue is discussed further at Question 9.

4.15. Other issues, in each case raised by smaller numbers of respondents were that:

• Any new legislation must adequately address the needs of both parties in the marriage. This might include being sensitive to situations where divorce may be unacceptable for religious or cultural reasons or where it could affect the residency or employment rights of a spouse who is a foreign national
• A more general review of how divorce law works if a spouse is transitioning is required. Particular issues seen as requiring attention included the timing of any divorce relative to a GRC application, how assets will be divided and who should meet the cost of any divorce.

Comments by respondents who did not know or did not answer

4.16. Around 220 respondents who did not know or who did not answer the question went on to comment. The issues raised tended to reflect those highlighted by respondents who thought it should it be possible to apply for and obtain legal gender recognition without any need for spousal consent.

4.17. For example, around 1 in 5 respondents felt that people have a right to self-determination and that obtaining legal gender recognition should be a personal decision. However, around 1 in 5 also commented that one partner transitioning should be valid grounds for divorce.

Scottish civil partnerships

4.18. Where one of the partners in a civil partnership registered in Scotland wants to be issued with a full GRC, the couple have two options. They may either:

• choose to change their civil partnership to a marriage; or
• end the civil partnership.

4.19. The couple cannot continue as civil partners because Scotland does not recognise mixed sex civil partnerships.

4.20. Civil partners can change their partnership to a marriage as a result of changes made by the Marriage and Civil Partnership (Scotland) Act 2014. If an applicant for legal gender recognition is still in a civil partnership when their application for legal gender recognition is made, the Gender Recognition Panel will issue an interim GRC. Where an interim GRC is issued to one of the parties in a civil partnership, this is a ground for dissolution of the partnership by either of the parties.

Question 8 - Civil partnership is only available to same sex couples. This means that the civil partners cannot remain in their civil partnership if one of them wishes to obtain a full Gender Recognition Certificate.

Should they instead be allowed to remain in their civil partnership? This would mean that a woman and a man would be in the civil partnership.

Chart 8: Question 8

4.21. A majority of respondents, 73% of those answering the question, thought people should be able to remain in a civil partnership if one of them obtained a full GRC. The balance of opinion across Scotland, the rest of the UK and the rest of the world was similar.

4.22. Around 3,495 respondents went on to make a further comment.

Comments by those who favoured being able to remain in a civil partnership

4.23. Around 2,335 respondents who thought people should be able to remain in a civil partnership went on to comment.

4.24. By a very substantial margin the most frequently made point was that civil partnership should in any case be extended to mixed sex couples and this would remove any problems created by one partner obtaining a full GRC. Around 6 in 10 respondents raised this issue with further comments including that opening up civil partnership to include mixed-gender couples would not only allow for the choice of how a partnership could be legally recognised but would be yet another step forward in recognising non-binary identities as equal and valid. Others simply commented that people want a choice to the ‘traditional’ marriage with its religious and other connotations.

4.25. The only other frequently made point – raised by around 3 in 10 – was that people should be able to remain in a civil partnership because to expect otherwise would be variously unnecessary, unreasonable, unfair and could be distressing. In line with comments made on opening up civil partnerships to mixed sex couples, it was noted that some people may not wish to be married, including because they see it as a misogynistic institution or as having religious overtones. Others noted that there would be costs involved. It was also suggested that couples may be very committed to have worked hard to sustain their civil partnership and it would not be fair to then have it taken away from them simply because one of them transitions.

4.26. Other comments, in each case by smaller numbers of respondents included that:

• The gender of those in a civil partnership is not really an issue since, even if one partner transitions, they will remain the same biological sex as they were prior to transitioning
• Civil partnership should be phased out and replaced with marriage. Alternatively, the two separate institutions should simply be merged into one as any difference is arbitrary and brings no value
• If a civil partnership is changed into a marriage it should be a very straightforward process with no additional costs involved.

Comments by those who did not favour being able to remain in a civil partnership

4.27. Around 680 respondents who did not favour people being able to remain in a civil partnership if one of the partners obtained a full GRC went on to make a further comment.

4.28. Most frequently they suggested that civil partnerships were always designed for same sex couples and should remain so. Around 1 in 5 respondents made this comment, with further points raised including that since the legislation does not allow mixed sex civil partnership the law would need to be changed and this would open the door to opposite sex civil partnership for all. A smaller number of respondents went on to note specifically that they did not agree with the introduction of mixed sex civil partnerships, including because it would further undermine the institution of marriage.

4.29. An alternative proposition was that people should only be able to remain in a civil partnership if one couple has obtained a full GRC if the opportunity to enter a civil partnership is open to all. Around 1 in 5 respondents made this point, with further comments similar to those who had favoured being able to remain in a civil partnership but suggested the option should be extended to all. A smaller number of respondents suggested that to allow mixed sex civil partnership to some but not others would be discriminatory.

4.30. Other comments made, in each case by smaller numbers of respondents included:

• Reflecting a point made by respondents who did support being able to remain in a civil partnership, that the gender of those in a civil partnership is not an issue since they will remain the same biological sex as they were prior to transitioning.
• That civil partnership is no longer required now Scotland offers same sex marriage and should be phased out.

Comments by those who did not know

4.31. Around 480 respondents who did not know or did not answer the question went on to make a further comment. The issues raised tended to reflect the same themes as raised by those who did and did not favour being able to remain in a civil partnership. For example, around 3 in 10 suggested people should only be able to remain in a civil partnership if civil partnership was an option for all opposite sex couples. Around 1 in 6 said that people remain the same sex irrespective of whether they have changed gender.

4.32. Additional issues raised included that it is difficult to see why someone would object to their civil partnership being changed into a marriage, and that the person who has obtained a full GRC should only be able to remain in a civil partnership with their partners consent. These issues were raised by 1 in 10 and 1 in 8 respondents respectively.

Grounds of divorce

4.33. At the moment, it is a ground of divorce of a marriage and dissolution of a civil partnership for either party if an interim GRC has been issued by the Gender Recognition Panel.

4.34. The Scottish Government’s initial view is that there is no specific need for gender recognition to be a ground of divorce or dissolution. It appears to the Scottish Government that the ground that the marriage or civil partnership has broken down irretrievably would be sufficient.

Question 9 - Should legal gender recognition stop being a ground of divorce or dissolution?

Chart 9: Question 9

4.35. Half of respondents, 50% of those answering the question, thought that legal gender recognition should not stop being a ground of divorce or dissolution. Of the remaining respondents, 34% thought it should and 16% did not know. The pattern of response for those resident in Scotland was similar to that for all respondents. The rest of the world group was the only one in which the largest proportion of respondents thought that legal gender recognition should stop being a ground of divorce or dissolution.

4.36. Around 2,835 respondents went on to make a further comment.

Comments by those who did not think gender recognition should stop being a ground

4.37. Around 1,880 respondents went on to make a comment, with the most frequently made point being that if someone transitions while in a marriage or civil partnership they are effectively a different person to the one their spouse married and this, in turn, means the marriage contract has been broken. Around 1 in 3 respondents made this point.

4.38. Further comments included that to change the nature of someone’s marriage, from either an opposite sex marriage to a same sex marriage or vice versa, means that the original marriage, in whichever form, no longer exists in any real sense. Smaller number of respondents also commented that it is not reasonable or fair to expect someone to remain in a marriage if that marriage no longer reflects their own sexuality. Some suggested that to do so would be tantamount to an abuse of someone’s human rights. More generally, some suggested that no-one should be forced to remain in a marriage if they do not want to or that they should have a right to a very quick divorce.

4.39. Around 1 in 3 respondents commented specifically that gender transition, and in particular obtaining a full GRC, must remain a specific ground of divorce or dissolution. Reasons given included that the non-trans partner should have the right to have the correct reasons for their divorce recorded, particularly if they or their community disapproves of divorce on religious or cultural grounds. It was noted that a no-fault divorce could mean people need to remain married for 1 or 2 years and that this would be very unfair on the non-trans partner and it was suggested that it would be important to acknowledge that the non-transitioning partner is not at fault.

4.40. Other comments included that it must be made possible for the partner not undergoing any change to divorce without accusations of transphobia or facing the financial burden of divorce. Around 1 in 10 respondents acknowledged that some people may choose to remain in their marriage after their partner has transitioned but felt that those who did not must have the necessary grounds for divorce available to them. Another point raised, in this case by a smaller number of respondents, was that a more comprehensive review of divorce law is required, and this could include looking at all the grounds.

Comments by those who did think gender recognition should stop being a ground

4.41. Around 640 respondents who thought gender recognition should stop being a ground went on to make a further comment. Respondents most frequently suggested that the current grounds for divorce, where the ‘marriage has broken down irretrievably’ are sufficient. Specifically, that this definition is sufficiently broad that there is no need for a specific clause. Around 4 in 10 respondents made this comment.

4.42. Around 3 in 10 felt that the ground discriminates against trans people for their gender identity, and to have legal gender recognition as a standalone ground for divorce would be discriminatory and could lead to stigmatisation. It was also suggested that it may contravene an individual’s right to privacy if they are required to disclose their gender status, or their gender status is disclosed, when divorcing.

4.43. Other points raised, in each case by smaller numbers of respondents included that:

• Having gender recognition as a ground could lay the trans person open to coercion or abuse from a partner who disagrees with their partner transitioning
• A ‘no fault’ divorce or dissolution should be made available.

Comments by those who did not know whether gender recognition should stop being a ground or did not answer the question

4.44. Around 310 respondents either said they did not know at Question 9, or did not answer the closed question, but then went on to make a comment.

4.45. The most frequently made comments, with both points raised by around 1 in 5 respondents, were that one of the partners receiving a full GRC should be immediate grounds for divorce or that, as above, there should be a wider reform of divorce law.