Skepticlawyer » ‘A Plea in Law for Equal Marriage’

Skepticlawyer :‘A Plea in Law for Equal Marriage’

In 2002, A was happily married to her husband, although she was not well. About two years earlier – and although she was only 33 – her periods had stopped, her voice had deepened and her shoulders had broadened. She began to grow facial hair, which she shaved off, obsessively, although she felt very odd doing so. She had always been considered “mannish” as a child and was unusually good at sport, to the point of being invited to play cricket with her high school’s First XI and coach junior rugby. Her husband had always liked “sporty girls”, and they met through a rugby supporters’ association.

    Although she hid the burgeoning changes from her husband, of course he noticed them. Eventually, and in severe distress, she told him that she thought she was turning into a man. Medical tests revealed a huge spike in her testosterone levels and a hitherto undiagnosed genetic disorder that meant she had both male and female characteristics. At the time of the tests, she did not feel properly male or female, but it was clear that she still loved her husband, and he loved her in return.

    The couple waited, and over a further two years – and without, at this stage, any treatment – the masculine characteristics became more dominant.  ‘She’ felt more like ‘he’ and the couple agreed that A would undergo the necessary medical treatment and legal changes to be considered male. The medical process went relatively smoothly, albeit with pain and some adjustment complexities. The law, however, was less amenable. A was told that in order to finalise his transition from female to male, he and his husband would need to get divorced. Only then would his “interim gender recognition certificate” be made a “full” one.(1)

    “But we’ve been married for nine years,” he pointed out. “Can’t we just stay married? Our 10th wedding anniversary is coming up.”

    “No. You have to divorce, and then, if you want, you can form a civil partnership.”(2)

    “But I thought marriage and civil partnership were supposed to be the same!

...

References

(1) Gender Recognition Act 2004, ss 5 and 5A, especially s 5(1)(b) and s 5A(1)(b), the provisions applicable in Scotland. Divorce is necessitated because a marriage can only be formed between opposite sex-couples, and a civil partnership can only be formed between same-sex couples.

(2) This description is a composite based on several case studies, both in Scotland and elsewhere. I am particularly grateful to Zoe Brain (Australian National University, Department of Computer Science) for her exhaustive documentation of situations like this.

In full, this year's winner in the essay competition organised by the Society with the Scottish Parliament: a proposal for a member's bill that is topical and would "make a useful change to Scots law" . Read The Whole Thing