I was due to write, in March, about relationship equality for trans people. I have brought this forward a little, to focus on Marriage Equality, given current discussions about this topic.
There are five key problems that I would like to explore here:
- Current U.K. marriage law is based on sex, rather than gender.
- Current marriage practice in U.K. denominations often seems to be based on appearance and gender, rather than sex.
- This means that trans people are discriminated against regardless of sexuality and contrary to our rights under the Gender Recognition Act (GRA) and the Equality Act (EA).
- Many ministers do not have adequate knowledge of a) law and b) pastoral concerns in this area and, as a result, are unable to respond adequately to couples that include trans people.
- There is sometimes a tendency in research/writing/campaigning regarding ‘equal marriage’ to either a) ignore these problems or b) use language around sex, without consideration of gender.
This post will, necessarily, be quite long and complex. If you would like to skip the evidence and find out what you can do to help, feel free to jump to the last section! The bottom line is that we all must take care that attempts to provide for same sex marriage for cis couples do not contribute to the violation of trans rights. Rather, all equal marriage campaigners should take trans experiences and rights seriously.
Sex Based Law
The Marriage (Same Sex Couples) Act (2013) is based on sex, rather than gender, although in law the two terms are often used interchangeably. It gives same sex couples the right to marry under a separate act and with separate requirements to opposite sex couples. The contracting words of a marriage are ‘I (your full name), take you (your partner’s full name) to be my wedded wife/husband.’ There is no provision for the gender neutral term ‘spouse’. Nor is there provision for the words ‘wife/wife’ or ‘husband/husband’ to be used for ‘opposite sex’ couples. What this means is that where one partner is trans and does not have a Gender Recognition Certificate*, or where one partner is non-binary, they are normally* mis-gendered during their marriage ceremony. This is unacceptably painful for many, and often leads to couples delaying their marriage to avoid this indignity.
Legally, whether a marriage is same or opposite sex is based on the sex on a person’s birth certificate. However, because of their exemption from equality laws, denominations can also make provisions in order to avoid marrying trans people, regardless of the sex on their birth certificate. In the Church of England, a minister may refuse to marry a couple if they believe one of the parties to be trans. What this means, in practice, is that, rather than asking to see a person’s birth certificate, which is the legally standard, some ministers look at a person, assume them to be trans if they do not have passing privilege, and ask intrusive questions which, whilst they might be more tactful, essentially amount to asking people what their body looks like underneath their clothes. This is clearly abusive and should be a serious safeguarding concern. It also means that trans people with passing privilege are more likely to access church marriage than those without. Further, this creates a confusing loophole whereby some marriages that some people may see as same sex marriages in the Church of England are legally permissible and some opposite sex marriages are not. Whilst other denominations do not document similar practices, the lack of guidance means that they are likely widespread.
The Gender Recognition Act (GRA) and the Equality Act (EA) should stop the above abuse from occurring. Whilst there is no relevant case law re the GRA to my knowledge, it is assumed by many that religious exemptions from equalities laws mean that these do not apply. I believe that all religious exemptions from equalities laws are unjust and inherently discriminatory. Where the GRA is concerned, these exemptions are also oppressive and present clear safeguarding risks. The GRA is supposed to make it possible for a trans person to live entirely in their true gender. This means that they should not have to disclose their trans identity. It is illegal, under the GRA, for anyone who has learnt in a professional capacity that someone is trans to disclose this information. It is unclear whether religious exemptions include allowing such disclosures. Whilst ministers are allowed to disclose trans identities for their direct supervisors, the wider disclosure that is commonplace is questionable. It is clear that current practice means that some ministers are requiring trans people to disclose their identities and are then disclosing these to others. This is important because the GRA exists in part to protect trans people from discrimination, oppression and danger. Current ecclesial practice regarding trans people and marriage does not only bar trans people from equal marriage but also poses considerable safeguarding risks.
Due to a lack of understanding of the above complexities, not to mention the added difficulty of the spousal veto, the vast majority of ministers in all U.K. denominations are not properly equipped to pastorally care for trans people or to offer us appropriate advice with regards to getting married in Church. Many also lack understanding regarding the pastoral and practical consequences of their espoused theologies and doctrines and actual practice regarding marriage and gender identity. From a slightly different angle, I also wonder whether ministers should be more concerned than they appear to be about whether their practices are lawful.
Here are some tips for making your research/writing/campaigning for equal marriage trans inclusive.
- When doing research and writing about equal marriage consider asking a trans person for their views, and ensure that you have adequately understood and addressed the implications for trans people of your argument or the topic about which you are writing.
- Ensure that you use the words ‘sex’ and ‘gender’ accurately and not interchangeably. Where law and church practice differ on these, note this.
- Make sure that you understand the denominational, legal and pastoral complexities as well as is possible before offering marriage advice or pastoral care to trans people.
- When referring to ‘equal’ marriage, consider critiquing the Marriage (Same Sex Couples) Act, and avoid implying that once marriage in all church denominations is possible marriage will then be equal.
- When curating forums (magazines, newspapers, campaigns, blogs, etc.) where equal marriage is a key concern, ensure that trans+ and bi+ voices are heard. Consider prioritising them.
- Whenever you hear someone say that equal marriage and/or same sex marriage is not about trans people, correct them.
*On receiving a Gender Recognition Certificate a person is legally recognised as the sex that correlates with the gender determined by that certificate. Such a person’s birth certificate is re-issued with a new sex marker. It is important to note that it is very difficult to get a GRC.