MARRIAGE, GENDER RECOGNITION, AND THE TRANSGENDER SPOUSE: CHALLENGING THE ‘SINGLE STATUS REQUIREMENT’

Dr Fergus Ryan

National University of Ireland Maynooth

A HUMAN RIGHTS REVOLUTION

In respect of LGB rights, we are in the midst of a human rights revolution

In the space of just over 20 years, significant legal change has occurred that has considerably improved the legal and social position of lesbian, gay and bisexual people, and of same-sex couples

In particular, the introduction of civil partnership has considerably improved the legal position of same-sex couples

While there are gaps and deficiencies, there is no doubt that in international terms Ireland is at least ready to move into the ‘fast lane’ when it comes to LGB rights

THE FORGOTTEN ‘T’

When it comes to transgender rights, however, the picture is very different

In sharp contrast with the legislative strides we have made in the area of LGB rights and the recognition of same-sex couples, progress in relation to transgender rights has been much slower

In particular, Ireland remains in the ‘slow lane’ when it comes to gender recognition

Ireland is amongst the few remaining and dwindling number of Council of Europe states not to provide a legal mechanism for the recognition in law of the preferred gender of transgender people

POSITION OF TRANSGENDER PEOPLE

Transgender = having a gender identity or gender expression that differs from that expected of a person of his or her physical sex at birth

Research demonstrates that transgender people: Suffer disproportionately high levels of violence, abuse

and harassment Experience significant levels of discrimination and

harassment in the workplace Experience significant barriers to full participation in

the workplace – more likely to be unemployed Are often the subject of prurient interest and ridicule,

particularly in the media, in breach of privacy rights and dignity (e.g. RTÉ’s ‘The Centre’ (2014))

LEGAL POSITION OF TRANSGENDER PEOPLE Gender Identity is not included in Prohibition on

Incitement to Hatred Act 1989. Some transgender people enjoy protection from

discrimination in the workplace and in relation to the provision of goods and services but this possibly does not extend to all transgender people

Under EU law discrimination on the basis that a person is planning to undergo or has undergone gender reassignment is treated as gender discrimination P v S and Cornwall County Council (CJEU, 1996) Richards v Secretary of State for Work and Pensions

(CJEU, 2006) Unclear to what extent people who cannot or do not

transition, or do not plan to transition, are protected

LEGAL POSITION OF TRANSGENDER PEOPLE

Louise Hannon v First Direct Logistics Ltd (Equality Tribunal, 2011) Applicant unlawfully discriminated against on the

grounds of gender and disability arising from her employer’s treatment of her following her decision to undergo gender reassignment.

Deirdre O’Byrne v Allied Irish Banks (Equality Tribunal, 2013) Applicant unlawfully discriminated against on

grounds of gender when she was required to close down bank account in former (male) name and open new account (rather than simply change the name on the account).

GENDER RECOGNITION

In Ireland, a person’s gender for legal purposes is determined solely by reference to biological/anatomical criteria judged as of the time of the person’s birth

It is not possible subsequently to change the person’s legal gender to account for a transgender person’s preferred gender or reassignment

=> Living as one gender; legally the opposite

There may be some flexibility where a person’s gender, by reference to biological criteria, was ambiguous or equivocal at birth (W v W (2001))

But where the biological criteria are congruent, legal gender is fixed as of the time of birth

GENDER RECOGNITION

Goodwin v United Kingdom; I v United Kingdom (2002) The failure to provide a mechanism whereby

transgender people can be legally recognised in their preferred or true gender infringes Article 8 of the ECHR (right to privacy)

“No concrete or substantial hardship or detriment to the public interest has...been demonstrated as likely to flow from any change to the status of transsexuals.”

“Society may reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity...”

Also infringes Article 12 (right to marry) of the ECHR Though it is clear from Goodwin that the Court had in

mind the right to enter into a heterosexual marriage

GENDER RECOGNITION

Foy v An tArd-Chláraitheoir (No. 2) (2007) The failure to provide for gender recognition in

Ireland led to a declaration of incompatibility under section 5 of the ECHR Act 2003

Lack of formal recognition of gender reassignment breached Article 8 ECHR

Verdict did not change the law – gender recognition legislation still outstanding

Passports Act 2008, section 11 – limited right to alter gender marker and name in passports Limited to cases where the citizen has undergone

reassignment surgery or treatment Does not officially change the person’s legal

gender for general legal purposes

GENDER RECOGNITION

Gender Recognition Advisory Group Report (2011) Recommended that the applicant should declare

a clear and settled intention to live in the preferred gender for the rest of his or her life

2 year ‘real life’ test – demonstrate ‘authenticity’ Required a diagnosis of Gender Identity Disorder

or medical evidence of surgery for gender reassignment

Excluded applicants who were married or in a civil partnership

GENERAL SCHEME OF GRB

General Scheme of Gender Recognition Bill 2014 Drops the proposed real life test No requirement of a diagnosis of GID No requirement for surgery or medical treatment Applicant may declare that it is their “settled and

solemn intention [to live] in the acquired gender for the rest of his/her life, that he/she understands the implications of the application and that he/she does it of his/her free will.”

Also requires an accompanying statement from the applicant’s primary treating physician confirming that the person has transitioned and fully understand the consequences of their decision

PROBLEMS WITH THE GENERAL SCHEME 1. Requirement of doctor’s letter confirming transition–

medical oversight required Presupposes diminished capacity of applicant and undermines

autonomy Risks introducing a diagnosis requirement by the back door Evidences a suspicion that some applications may not be

genuine or meritorious Focus on transition may exclude some intersex and trans

applicants 2. Head 5 – applicants must be aged 18 or over

Suggestion that age may be lowered to 16 Young transgender people placed in limbo Runs counter to UNCRC rights and fails to respect evolving

capacity of young people 3. Single Status Requirement – applicant must not be

in an existing marriage or civil partnership at the time of the application

ANXIETY TO REGULATE RECOGNITION

Exhibits a residual concern that transgender person is ‘authentically’ trans (and certified as such)

Maintenance of control over the transgender subject

Rigidly adheres to gender binary – required to ‘pick a team’

Requirement for medical approval – need to decouple legal and medical pathways

Why does it matter to the State? Gender is socially and culturally relevant but its legal

relevance is waning Gender is meant to be legally irrelevant in most legal

contexts Where gender does matter is in relation to marriage

SINGLE STATUS REQUIREMENT

Some existing marriages may not survive a spouse’s gender transitions...but some do

To access gender recognition under the legislation, applicants who are married or in a civil partnership will have to obtain a divorce/dissolution or annul an existing marriage/civil partnership

Difficult choice between legal recognition of the preferred gender and remaining married/civilly partnered

Transgender experience can be very isolating and challenging. Disproportionate to require the sundering of an existing marriage/CP

SINGLE STATUS REQUIREMENT Austrian and German courts have struck down single

status requirements ECHR has to date upheld single status requirements in

the UK and Finland ECHR – Parry v United Kingdom (2006), H v Finland

(2012) – states have a wide margin of appreciation as regards the conditions for recognition.

States are entitled to impose restrictions with a view to protecting the integrity of ‘traditional marriage’

...but the ECHR’s decisions relate to jurisdictions where divorce is comparatively easier to obtain than in Ireland

In Ireland’s case, it might be argued that a single status requirement might not be treated as proportionate in light of the difficulties it may cause transgender spouses

SINGLE STATUS REQUIREMENT

Ireland – divorce as a ‘last resort’ Article 41.3.2 Constitution of Ireland – Court

may only grant a divorce where The spouses have lived apart for 4 of the previous 5

years There is no reasonable prospect of reconciliation Proper provision has been made for both spouses

and for children Living apart includes a mental element –

At least one party must have resolved to end the relationship

Physical separation not sufficient in itself (indeed, the parties may “live apart” under the one roof, provided they are living independent lives)

SINGLE STATUS REQUIREMENT

Consequences: May lead to significant delays in getting gender

recognition – long waiting period for divorce Happily married couples may be forced to

divorce in order to ‘preserve traditional marriage’ For spouses who wish to remain together , it may

be impossible to gain gender recognition without misleading the court in divorce proceedings

Divorce will not be an option if the parties cannot satisfy either the prerequisite regarding living apart or of there being no reasonable prospect of reconciliation

May lead to false declarations (e.g. that marriage is irreconcilable when this is not the case)

SINGLE STATUS REQUIREMENT Applicants are being penalised for being married Civil partners treated more favourably than spouses Because it is easier to exit a civil partnership than a

marriage, transgender civil partners will have an easier path to gender recognition (though they will still have to leave the CP)

Post gender recognition, the former spouses may enter into a civil partnership, which confers most of the same rights and entitlements but... ...civil partnership lacks constitutional protection afforded

to marriage ...a small number of rights are denied

SINGLE STATUS REQUIREMENT Annulment – SB v FL (2009) – a marriage found void

because the wife did not know her husband was transgender.

A possible solution but ..may be expensive and ...will require lengthy court proceedings ...which are likely to be invasive of the couple’s privacy,

and to undermine dignity and privacy of transgender spouse

...will deprive each party of the ancillary relief available on divorce/dissolution

...require the parties to engage in the fiction that there was ‘no marriage’ when plainly there was

SINGLE STATUS REQUIREMENT

Government has defended the single status requirement on the following grounds: Affording gender recognition to a spouse would

convert the marriage into a marriage of a same-sex couple (spouses are now of the same legal gender)

Allowing such a marriage to subsist would be “unconstitutional”

Allowing two persons of the same legal gender to remain married post-gender recognition but not to allow a couple of the same sex to marry would breach the constitutional equality guarantee (Article 40.1)

Each of these propositions is contestable

“CONVERSION TO A ‘SAME-SEX’ MARRIAGE” Gender recognition, if enacted, would be prospective only

(Head 9) “All rights, responsibilities and consequences of actions by the

person in their original gender prior to the date of recognition shall remain unaffected”

The validity of a marriage is determined by reference to conditions existing at the time of the marriage ceremony

What happens afterwards usually does not affect the essential validity of the marriage (Napier v Napier (1915), AB v NC (2006))

If the parties were respectively male and female at the time of the marriage, their marriage remains essentially valid, judged as of the time of marriage

Too contractual an argument? The counterargument may be made that marriage is an enduring union and that the courts might be unwilling to treat what is in substance a union of e.g. two women as legally heterosexual

CONSTITUTIONALITY OF MARRIAGE FOR SAME-SEX COUPLES The Constitution does not afford a right to marry to

same-sex couples (Zappone and Gilligan v Revenue Commissioners (2006))

Would it be unconstitutional to extend marriage to same-sex couples by legislation? No – O’Mahony (2012, 2014), Carolan (2007), Daly (2012),

Tobin (2012) O’Mahony – no referendum required Some judicial dicta to the effect that marriage as

understood in the Constitution is a heterosexual union (Zappone and Gilligan v Revenue Commissioners (2006), McD v L (2009))

...but it is most likely that the courts would take the view that legislating for marriage for same-sex couples would be within the discretion of the Oireachtas

Courts tend to defer to the Oireachtas on matters of social policy (e.g. MD v Ireland (2012))

INEQUALITY BETWEEN TRANS AND GAY COUPLES? Transgender persons would be allowed to remain

married in their preferred gender while gay couples would not be allowed to marry – inequality

Potential anomalies if parties also allowed to convert civil partnership to marriage

Simple solution: extend right to marry (and to civilly partner) to all, regardless of gender

May be anomalous, but likely to survive constitutional challenge

Legislature is entitled to have regard to the very particular situation of transgender spouses which is quite unique

Allowing transgender persons to remain married arguably is a proportionate response

CONCLUSION Potential problems with both a single status

requirement and the absence thereof ...but on balance absence of such a requirement is

preferrable, and there is at least an argument that the policy choice to omit such a requirement would be upheld in the courts

Worth dwelling on the point that these are existing marriages – ironic if protecting marriage would require sundering existing marriages

Given the particularly vulnerable situation of the transgender spouse, where the marriage can be maintained, we should be helping rather than hindering the couple

Extension of marriage to same-sex couples would solve the dilemma