The spousal veto is a measure contained in the Marriage (Same Sex Couples) Bill to allow heterosexual people to prevent their heterosexual marriage becoming a gay marriage in England and Wales (the veto does not exist under Scottish law). The veto allows the spouse of a transsexual person who is applying for a Gender Recognition Certificate (GRC) to prevent a full GRC (and thus a new birth certificate) being issued to their spouse for the duration of the marriage.
The requirement for divorce is a result of the Gender Recognition Act 2004 coming into effect almost a decade before equal marriage rights for gay people. Under the Marriage (Same Sex Couples) Bill, there is no requirement for a transsexual person to divorce before receiving a full GRC. Instead, their spouse must agree to the conversion of their heterosexual marriage into a homosexual marriage. This is what’s known as the “spousal veto” since without the agreement of the spouse, the transsexual person is only entitled to an interim GRC. A holder of an interim GRC must then divorce before a full GRC can be issued, just as before.
Origin of the Spousal Veto
According to reports from GIRES, and confirmed by former Liberal Democrat councillor Sarah Brown, the spousal veto came about as a result of roleplaying sessions conducted by members of the civil service. As Paula Dooley, a trustee of GIRES, stated in a letter to MPs:
“…this requirement has been introduced by civil servants/junior ministers ‘role playing’ and working out how they would feel if they were in a similar position. This beggars belief. How on earth could anybody role play what it is like to be inside a family unit when one party changes gender role! It seems to be a completely inappropriate way to determine government policy.”
Role-playing a situation without taking all the facts into account is never a productive method of determining the best policy. A far better situation would have been reached by discussing the problem, if indeed there is a problem, with people actually facing the situation under consideration. Gathering facts and discussing solutions with representatives of the affected group would have prevented this veto ever being added to the Bill; because the civil service would have seen it was unnecessary.
During the third reading of the Marriage (Same Sex Couples) Bill (“the Bill”) in the House of Commons, Helen Grant, MP, Under-secretary for Women and Equalities, told the House that it would not be possible to support an amendment that removed the veto. However, we must respectfully submit that this is simply not the case.
Criticism of the Spousal Veto
There are no legal grounds for providing one person a veto over the exercise of another person’s rights; even if those two people are married. Furthermore, an application for a GRC requires the applicant to have lived in their acquired gender for at least two years.
If a spouse has a problem with their partner’s transition, two years is more than enough time for them to have made this clear and even to have gone through divorce proceedings if that is necessary. The Bill even provides for a marriage to be annulled on the basis that one of the spouses is transsexual and the other did not know this at the time of marriage, so it is not as if anyone can legitimately claim to have been “trapped” or “conned” into a gay marriage.
Furthermore, the Bill is designed to further equal rights for homosexuals by providing an equal footing for marriage. If gay marriages and straight marriages are supposed to be equal now, what exactly is this veto protecting the cisgendered (“non-transgendered”) spouse from? Why do straight people need an opt-out that prevents them entering a gay marriage they did not sign up for? There is no evidence to support the need for a spousal veto.
There is, however, now evidence that the spousal veto is likely to be misused by those who do not want their transsexual spouse to transition. According to the T-Vox report on spouses’ reactions to their partners coming out as transsexual, over 50% of spouses will react badly to the news and almost half will attempt to actively prevent their spouse from transitioning.