Trans Panic on the Statute Book

[steepholm]

I knew that the Gender Recognition Act (2004) and Equality Act (2010) were not perfect as far as trans people are concerned. Indeed, in some respects the later act withdrew rights that the earlier one had granted. However, I did believe that for almost all legal purposes the 2004 gave anyone with a Gender Recognition Certificate the right to be treated as a member of their "acquired" sex.

Seems I was wrong. I learned just in the last couple of days that there is a legal obligation on trans people in England and Wales to disclose their "gender history" to a potential marriage partner. This was instituted in the 1973 Matrimonial Causes Act, but rather than being superseded by the 2004 Gender Recognition Act it was preserved by it. If disclosure is not made, the non-trans partner can seek to have the marriage annulled.

To put this in perspective, there are very few circumstances under which marriages can be annulled, and only three of them relate to the withholding of information. These occur when one partner fails to tell the other that they a) have an STD, b) are pregnant with someone else's child, or c) are transsexual.

Now, it may generally be a good idea to tell someone you're about to marry that you have a trans history (though there may also be circumstances when it's not a good idea - and may even be dangerous), but that's not the point here. For starters, one might say the same of a lot of other circumstances. You may be gay, for example, or have a criminal record; but you can keep those a secret from your prospective spouse and marry with the law's blessing. The only fixed group of people singled out as having a permanent obligation to out themselves are trans people. Only being trans is considered so uniquely shocking as to require disclosure in advance of marriage, on pain of annulment.

There's an excellent recent article here on why this is wrong, inconsistent and probably illegal under European law, but I was quite shocked to find that it was the case at all.

One other curious thing, though. I mentioned this law on the LJ transgender community, and (so far at least) no one seems to have been aware of it. Of course, it's not surprising that the law seldom (I suspect never) actually gets used. Many trans people don't find partners. Of those that do, many don't pass. Of those that do, many are public about their trans status. Of those that aren't, almost all will want to tell their life partners. The trans panic that's written into the law is there to provide against a situation that mostly exists in the lurid imagination of scriptwriters and Mail sub-editors. But it's a spiteful and phobic provision, and even though it directly affects few if any people, it's no more pleasant to find than a turd lying on a book you won't ever read. It's just one more way in which the law says, in effect, that trans people are icky and deceptive.

Comments

[adaese.livejournal.com]

If telling someone you have a trans history could be dangerous, is it really a good idea to go ahead with the wedding? But yes, it does seem a rather odd thing to single out.

[steepholm.livejournal.com]

People make unwise marriage decisions every day of the week without the law feeling the need to intervene. Though let's be clear, this provision is not there to protect trans people from violence! It's to protect cis people from the dreadful fate of unknowingly marrying someone trans.

As I say, there are many things that it's a good idea to tell someone before you marry them, and many things it would be reasonable expect people to tell you. Personally I'd like to know about that spell in the Scrubs for armed robbery; the unstable personality disorder; the fact that you aren't attracted to people of my sex. Hell, even foot odour would be more relevant. On all these, the law has nothing to say.

[papersky.livejournal.com]

There's a big difference between "It would be unwise" or even "It would be immoral" and making something actually a legal requirement.

If there were a whole long list of things you had to disclose before marriage -- previous marriages, previous children, convictions, addictions, membership in religious orders (I know someone whose mother was an ex-nun) -- then previous gender wouldn't be silly to have on that list. It's a significant life thing, and I think somebody getting married ought to have had the conversation about it beforehand, as with those other things. And mostly they would anyway! But having it uniquely required is ridiculous.

[cmcmck.livejournal.com]

I was aware of it but that may be because I am both trans and married (a situation that isn't as uncommon as all that btw). Marriage, of course, only became an option after the advent of the GRA about eight years ago. Prior to that it simply wasn't an option and invalid if one attempted it, hence my rather long 13 year engagement! I met my husband quite by chance almost twenty years back and when things became serious, disclosure seemed wise. :o)

I'm also aware that before the GRA, there were a hell of a lot more occasions on which one was obliged by law to out onesself which is why I ignored a number of them back in the day- gaining employment was a prime example. Diclosure was compulsory although I never did it in the twenty five or so years I was employed by others. It was an instant dismissal offence with no protection of rights.

The GRA is nowhere near perfect, but by God it's better than what we had before. I, like so many, had years of being an Orwellian 'unperson' thanks to Lord Justice Ormerod and his moronic stupidity.

Of course, much remains to be done (and undone).

[steepholm.livejournal.com]

Absolutely. There's a lot that's right with the GRA. That's why I was so taken aback to find this regressive little nugget still fouling the legislative nest.

[cmcmck.livejournal.com]

There's also the small matter that we married in Scotland and this particular little legal horror does not apply under Scottish law.

It's plainly against European HR legislation, but someone needs to go to the trouble of challenging it via the ECtHR and since most marriage partners would know anyway and not be bothered, no one is likely to make the effort, which is a pity.

It's probably more important to challenge the damage done by the so called Equality Act 2010 which was regressive as far as trans folks are concerned and certainly against EU law in places.

[kalimac.livejournal.com]

It'd never be not a good idea to reveal something like this to a person one is about to marry. If one thinks it is, then the marriage shouldn't be taking place. Period.

Whether the law should be sticking its cold wet nose into this is another question, but there are lots of other things that one's spouse ought to know about. That one had been married before, or had children, or had been in prison. I could not withhold sympathy from any spouse who felt put out on a surprise latter-day discovery of any facts like these, even if the result was an overreaction.

[steepholm.livejournal.com]

As I mentioned in my post, examples of this actually happening are vanishingly rare, and where they do happen it tends to be in countries that are extremely transphobic (such as Turkey, where the murder that prompted the original discussion took place) and where the motivation to conceal one's trans status is that much greater. In my view, the idea that trans people are going around trying to marry defenceless cis people without telling them about their past in sufficient numbers to warrant a discriminatory and stigmatizing law is the product of cissexist hysteria, and I suspect the number of times this has actually happened in England and Wales hovers around zero. At any rate, as far as I can see, no one has ever actually asked for an annulment on these grounds.

[cmcmck.livejournal.com]

Of course this legislation came in the wake of the so called 'Corbett' judgement in Corbett v Corbett of 1971 (don't read it as it's likely to make you feel ill) when the said Corbett was trying to get a divorce from the model, April Ashley on grounds of non-consummation. When that failed he went down the road of outing April as trans and the courts bought it.

Nothing at all to do with the fact that April was from a working class background and Corbett was a toff who'd wanted a trophy wife-not at all, M'Lud......

[http://users.livejournal.com/la_marquise_de_/]

I wasn't aware of this, either. Not good at all.