There seems to be a misconception that what trans activists call the “spousal veto” is well-intentioned but misguided. That it is just an annoying technicality which ended up in the legislation almost by accident. That it’s a necessary process that just happens to be unpopular.
None of these things are true.
What is the spousal veto?
Before England and Wales introduced same-sex marriage, it was necessary for married trans people to end their marriages in to gain legal gender recognition. Around 30 couples were forced to annul their marriages in this way. They have described it as like having their marriages “stolen”.
Thankfully this is no longer the case. However, instead, when a married trans person seeks gender recognition, their spouse must give permission.
Permission for what, exactly, is the crux of the matter.
The legislation states, and the government will tell you, that the spouse is consenting for the marriage to continue. In practise, they actually have the power to consent – or not – to their partner’s gender being legally recognised.
Because if they do not give permission “for the marriage to continue” then the trans person is blocked from having their gender recognised. The marriage continues to exist.
The trans person is given six months to end the marriage. The other partner still has the power to refuse – meaning potentially costly and lengthy divorce proceedings for the trans spouse. During which time they do not have legal gender recognition or the associated protections afforded by it.
How did it happen?
This didn’t happen by accident. To many, it appears like a piece of thoughtless bureaucracy – something badly designed without due consideration.
It could have been so simple to remove from the legislation. But it wasn’t. Even after being debated in parliament several times, and after a long campaign by trans activists to have it removed.
Campaigners fought for a compromise – where if the spouse refused to give permission, the marriage would be automatically annulled after six months. If they refused to consent to the marriage continuing, the marriage would be ended.
This was rejected. We remain in the situation where the spouse’s permission is not tied to the continuation of the marriage, it is tied to the trans person’s legal gender.
Why did it happen?
While the process itself is potentially damaging and demeaning, it is also important to consider what it represents. It tells us a lot about how the government views trans people.
It is intended to “give the spouse a say in the future of the marriage” – to prevent them from being in a marriage they did not consent to. To protect them from being married to a trans person.
This might seem dramatic – surely no one believes others need to be protected from trans people? Unfortunately this appears to be the main reason the spousal veto was introduced.
During the debates on the issue, now-former MP Julian Huppert put it quite succinctly.
“[Tobias Ellwood] said that there is no pent-up anger about some of these issues. I would quote comments sent to me by some of my transgender colleagues, but I suspect the language would be rather unparliamentary.
“I disagree on some of the detail about these amendments and I maintain that there are some concerns. I was worried by some of the language about not fully consenting to a marriage, although I am sure the Minister did not mean to imply that people need to be protected from transgender spouses or transgender people—I am sure that is not what was intended.”
Mr Huppert knew – as trans activists and campaigners know – that the main intention of the spousal veto was to give greater importance to the feelings of cis people, over the legal rights and protections of trans people.
Is it necessary?
In a word – no. The spousal veto doesn’t even do what it purports to do. It does not give people a say in the future of their marriage.
Of course no one is arguing that a person should be forced to remain married to someone they do not want to be. People should be able to end a marriage they no longer want to be a part of.
And they can. Divorce and annulment legislation already exists.
The chances are, when a trans person seeks gender recognition – a minimum of two years after they have begun living as their gender in all spheres of life – the decision whether to continue or end the marriage would already have been made.
That decision is, and should be, a personal matter between the couple. The government should trust couples to make that decision themselves.
Unless the government believes that trans people can’t be trusted to be honest with their partners. Unless they believes trans people will somehow trick or deceive their partners into remaining married to them.
But the government can’t really believe that, can they? They don’t really think cis people need to be protected from accidentally being married to a trans person, do they?
Well, if they don’t – why does the spousal veto exist?