Tasha Bevan-Stewart and Louise Low, in our leading Family Law team, look at the proposal to reform how gender identity and change are dealt with in a marriage.
In accordance with the Gender Recognition Act 2004, if an individual wishes to change their gender, and is married, they must first obtain the consent of their spouse. This is done through a statutory declaration which affirms that the spouse consents to the marriage continuing after the issue of a full gender recognition certificate. The legislation effectively requires the spouse’s agreement to their marriage becoming same sex (or heterosexual if it was originally same sex).
Recently, there have been calls for the legislation, which is referred to colloquially as the ‘spousal veto’ to be abolished. Some argue that it infringes upon the rights of transgender people and consequently, Baroness Barker has drafted a private member’s bill. The bill would instead require the individual wishing to change gender to make a statutory declaration. The declaration would confirm that they had taken reasonable steps to inform their spouse, not procure their consent.
Others argue that the spousal veto should remain in place. They say that if spousal consent is no longer needed, spouses face being trapped in a loveless marriage. The veto benefits the spouses of individuals wishing to change their gender because it avoids them being consigned to a marriage that no longer reflects their sexuality, through no decision of their own.
As ministers consider the bill and current law, Baroness Barker confirms that she does not argue people should be forced to remain in a marriage which they no longer wish to continue. Rather, people should seek divorce under existing mechanisms which require mutual involvement.
If legislation is not reformed, gender recognition can be denied by the unilateral withholding of consent. Thereby, an individual could be consigned temporarily (at least until the marriage is dissolved) to a ‘legal’ gender that doesn’t reflect their identity.
We watch with interest as the debate continues. For questions about this or any other matters, please contact our Family Law team.
For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.
This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.
