The Act

Protection of Information

The Marriage (Same-Sex Couples) Act, 2013

Present Legal Situation

Previous History before December 2014

 

The Act

Under the Gender Recognition Act, trans people who experience severe gender variance, and have medical treatment for the condition, may apply to the Gender Recognition Panel(GRP) for a Gender Recognition Certificate (GRC). The GRC then entitles them to recognition of the gender stated on that certificate “for all purposes”.

The application process for obtaining a Gender Recognition certificate can be found here

Where the person's birth was originally registered in the UK, the GRC may be used to obtain a new birth certificate. Those seeking a change of gender status must provide the GRP with evidence of a diagnosis of persistent gender dysphoria, and must convince it of their intention to live in the new role for the rest of their lives. This is a paper exercise and does not require the applicant to appear in person. Details of medical treatment and relevant dates are required. Genital surgery is not a requirement, although where it has taken place, applicants must supply details.

More than 3500 certificates have been issued thus far and the number is rising steadily.

Gender Recognition Certificates are issued by the Gender Recognition Panel part of the Tribunal Service.

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Protection of Information

Section 22 of the Act provides that it is an offence for person who has acquired protected information in an official capacity to disclose the information to any other person. “Protected information” is defined in section 22(2) as information relating to a person who has applied for a gender recognition certificate under the Act, and which concerns that application (or a subsequent application by them), or their gender prior to being granted a full GRC. Section 22(3) defines where a person acquires protected information “in an official capacity”.

Section 22 of the Act is designed to protect the privacy rights of transsexual people under Article 8 of the European Convention on Human Rights by criminalising the disclosure of information relating to their gender history by a person who acquired that information in an official capacity. Section 22 sets out a series of exceptions, where disclosure is considered to be justified. These are further expanded and clarified by Statutory Instrument 2005 No.635Solicitors are also bound to protect the information of any transgender people holding a GRC that they deal with whether or not they are clients.

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The Marriage (Same-Sex Couples) Act, 2013

Until the introduction of the Marriage (same-sex couples) Act, the only marriage available was between a ‘man’ and a ‘woman’. Many trans people were, and are still, in such long-term marriages.

Prior to the introduction of this new Act, a married trans person, wishing to obtain a GRC, would either have to divorce, or to annul the marriage using an Interim GRC. A civil partnership could then be formed if the couple wished to stay together. However, under the Marriage (same-sex couples) Act, a marriage that pre-dated the new Act, in which one person wishes to obtain a GRC, can now be converted to a same-sex marriage, with the consent of the spouse; a civil partnership remains an option in these circumstances.

Since the introduction of the 2013 Act, there are same-sex couples opting for this form of marriage, rather than a civil partnership. If one partner in the ‘same-sex marriage’ wishes to obtain a GRC, the same-sex marriage will have to be converted to ’marriage’ with the consent of the spouse.

Pre-existing civil partnerships, where one partner transitions and is seeking to obtain a GRC, the couple must convert to marriage, with the consent of the non-trans partner.

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Present Legal Situation

From December 2014 it will be possible for trans people who are married or in a civil partnership to obtain gender recognition without having to divorce or to dissolve their civil partnership. Trans people who are married will be able to apply to the gender recognition panel using a new application process which will reflect the fact that some applicants will wish their marriage to continue on after gender recognition. Those in civil partnerships will be able to convert their civil partnership to a marriage before applying for gender recognition and then use the same process as other married applicants. Although you can apply under the new rules from the 16th, in practice it is likely that the first decisions on such applications will not be made by the panel until around spring 2015.

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Previous History before December 2014

Previously the GRA, introduced in the wake of the Goodwin case in Europe, was decided on Articles 8 and 12, European Convention on Human Rights; Article 14 was disregarded as the UK was already in breach of the other Articles. The issue of marriage under the GRA, which was not pertinent to Ms. Goodwin since she was already divorced, was more recently tested in Parry v UK (2006). The UK was found to be within its margin of appreciation.

The Parry case was argued on the basis of Articles 8, 9 and 12. In finding against Wena and Anita Parry, the court in Strasbourg commented on (a) the small number of people affected, and (b) the alternative of contracting a Civil Partnership “thereby enabling them to enjoy the same financial and legal benefits associated with marriage”.

Regarding (a) above, of course, the whole point of protecting minorities against discrimination is because they are a small number of people. This shouldn't make any difference to their ability to achieve justice and equality before the law. However, as it happens, the original figures were a significant underestimate and the number of people in this situation continues to rise.

The second point (b) was incorrect. The benefits—financial and legal—are not the same as marriage, but the court took the position that they are close enough. It was far from clear that the government was strictly honest about this, conveniently forgetting such inequities as the pension substitution arrangements.

So the harsh truth was that it was regarded as ‘proportionate’ to force trans people and their spouses to end marriages that pre-date the GRA, one way or another, if they were to obtain a Gender Recognition Certificate (GRC) allowing them equal legal status with other citizens.

The trauma that accompanies the requirement to annul a marriage (or dissolve a civil partnership) before a GRC can be issued was recognised at the time by the Equality and Human Rights Commission(EHRC). Some limited discussion of this and their initial recommendations as to how to change the law may be found here. A further statement from the EHRC on the 8th January 2009 emphasized that they understand that the Act has serious problems. Unfortunately, as things stood at the time the EHRC were disinclined to take any positive action to improve matters.

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