Review of the Gender Recognition Act 2004: consultation

Part 5.Marriage and Civil Partnership

Scottish marriage

5.01.The Gender Recognition Panel can only issue a full Gender Recognition Certificate (a GRC, which gives legal recognition) to a married applicant if their spouse has confirmed that they are content to stay in the marriage.

5.02.If evidence of the non-applying spouse’s consent is not submitted with the application for recognition, the Gender Recognition Panel may only issue an interim GRC.

5.03.Where the marriage is a Scottish marriage (that is, a marriage solemnised in Scotland) the party who is seeking recognition may then apply to the sheriff court for a full GRC. ^[41]

5.04.If an interim GRC has been issued, either of the parties to a marriage may also seek a divorce on that basis. ^[42]

5.05.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. In particular, the requirement may give a transgender person’s spouse inappropriate power to determine the transgender person’s access to their legal rights.

5.06.The requirement for consent may, however, be seen by others as a reasonable balance between the rights of the transgender person to seek recognition of their acquired gender and those of their spouse to decide whether they want to stay in the marriage. Ultimately, under the 2004 Act arrangements, the spouse of a transgender person in a Scottish marriage cannot prevent them obtaining recognition. However, lack of consent may add time and cost to the process, since the transgender person will need either to apply for a full GRC from the sheriff court or to raise an action of divorce.

5.07.The Scottish Government is unaware of any applications to the sheriff court to issue a full GRC after an interim GRC has been issued by the Gender Recognition Panel. Between 2010 and 2016, there were seven divorces in Scotland on the ground that an interim GRC had been issued to one of the parties to the marriage. ^[43]

5.08.Other countries with self-declaration systems, such as the Republic of Ireland and Denmark, do not require a married transgender person to obtain the consent of their spouse to their application for recognition of their acquired gender.

Question 7

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

Yes

No

Don’t know

If you want, you can give reasons for your answer or add comments.

5.09.If the requirement for consent were to be removed under the proposed self-declaration system, consideration would need to be given as to whether the spouse of a transgender person should be informed by the Scottish Government or National Records of Scotland of the transgender person’s successful application to change their legal sex. This could only be done when the spouse can be found.

Scottish civil partnerships

5.10.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.

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

5.12.Civil partners can change their partnership to a marriage as a result of changes made by the Marriage and Civil Partnership (Scotland) Act 2014. ^[44]

5.13.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. ^[45]

5.14.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. ^[46] Between 2010 and 2016, there were no dissolutions of civil partnership on this basis. ^[47]

5.15.In 2016, 60 civil partnerships were registered in Scotland. ^[48]

5.16.In 2015, the Scottish Government published a consultation on civil partnership as part of our review of the Civil Partnership Act 2004. ^[49] We will announce our decision about the future of civil partnership shortly.

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.

Yes

No

Don’t know

If you want, you can give reasons for your answer or add comments.

5.17.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.

5.18.Interim GRCs may no longer be needed under the proposed self-declaration system of gender recognition. At the moment, interim GRCs are issued by the Gender Recognition Panel:

• where the applicant is a party to a marriage and their spouse has not consented to the application for gender recognition; or
• if one of the partners in a civil partnership is applying but the other is not.

5.19.At paragraphs 5.01 to 5.08, we discuss whether the need for a married applicant seeking legal recognition of their acquired gender to obtain consent from their spouse should be removed. At paragraphs 5.10 to 5.15, we discuss whether mixed sex civil partnership should be recognised for the purpose of allowing one partner to apply for legal gender recognition without the partnership being changed to marriage or dissolved. Clearly, if interim GRCs are no longer used under a new system of gender recognition, then the existing arrangements require to be amended.

5.20.The other ground for divorce or dissolution of a civil partnership is that the marriage or civil partnership has broken down irretrievably. ^[50] This can be demonstrated by living apart for one year and both parties consenting to the divorce or dissolution; living apart for two years; unreasonable behaviour or, in relation to marriage, adultery.

5.21. 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?

Yes

No

Don’t know

If you want, you can give reasons for your answer or add comments.