Women’s Consent Matters

The Liberal Democrats’ manifesto (published today) promises to abolish the spousal veto in the Gender Recognition Act 2004 (“GRA”) (see Section 19). The spousal veto is a phrase which has been widely used by politicians wishing to expand LGBT rights. But does such a veto actually exist? Let’s look at what the GRA actually says and not what politicians think it says. We will focus on marriages and the position of women married to men seeking a Gender Recognition Certificate (“GRC”).

The relevant provisions are these:-

• An application for a GRC is made under S.1(1). Anyone doing so must under S.1(6) make a statutory declaration as to whether or not they are married. 
• If they are married they also need to state whether it’s a marriage under the laws of England and Wales, Scotland, NI or a country outside the UK – S.1(6)(A).
• Under S.1(6B), the married applicant must also include a statutory declaration by their spouse that they consent to the marriage continuing after the issue of a full GRC (a statutory declaration of consent) or a declaration that they have not made such a declaration. In short, the panel determining the application needs to be told the spouse’s view on the continuation of the marriage given that its fundamental basis will change on the grant of a GRC. A woman who married a man will find herself, after a GRC is issued, married to a legal woman i.e. in a same sex marriage. 
• If the spouse has given their consent, they will be given notice by the Panel that an application for a GRC has been made – S.1(6D).
• There are equivalent provisions for marriages in other parts of the UK, forced marriages and for civil partnerships.

What happens if a spouse does not consent

• This is covered in Section 4 – Successful Applications. (Note the heading.)
• Under S.4(3) the applicant gets an interim gender recognition certificate. 
• An interim GRC will be turned into a full GRC if, within 6 months, the wife consents to the marriage continuing after the issue of a full GRC – S.4A(2)(d) i.e. the woman changes her mind.

So there is no veto. What there is instead is a pause to allow the wife to decide what to do about her marriage. During that pause the applicant has an interim GRC. 

What is the point of that six month pause?

Well, this should be obvious but let’s spell it out. It is to allow the wife to decide what to do about a marriage which has fundamentally changed.  Instead of being married to a man, she will find herself married to a man who says he is a woman and seeks to change his birth certificate to say so. It is not simply that she will be married to a woman in the future. She is being told that she has always been married to a woman.

– She can either decide to consent. 

– Or she can apply for an annulment of the marriage on the grounds that an interim GRC has been issued. Once that nullity of marriage order has been made, the court must issue a full GRC – S.5(1)(a). In short, the interim GRC starts the process of annulling the marriage to allow the final GRC to be issued.

– Or she can apply for an annulment of the marriage on other grounds and once that happens a full GRC is granted – S.5(2) – (7). 

Alternatively, a spouse can seek a divorce after the interim GRC has been granted.

Why does the pause matter?

Two main reasons:

1. A divorce is not the same in law as an annulment and it can have consequences in other areas which can lead to prejudicial effects for the woman. One obvious area is for religious women. A divorce may prevent them from partaking fully in religious life and practices. An annulment through the religious courts can take a long time. Why should a woman be denied the benefits of something which matters to her when there is an alternative – annulment, provided for by the Act, triggered by the steps taken by her husband and which, crucially, does not deny him the GRC he is seeking? Denial of this to religious women may also potentially constitute discrimination on the grounds of religion. 

Even if a woman is not religious, she is entitled to some time and space to determine her future, whether she wants to stay in the marriage, what her husband’s decision to seek a GRC means for her, any children, the wider family, her life up until now and what she does next. This is the very minimum that a decent society should afford a woman facing such a significant change. Should this really need saying in 2024?

The GRA has provided an elegant solution which grants both an interim GRC, a means for the man to get his full GRC and autonomy to the woman to decide whether or not to continue in her marriage. 

It has been described as “awful” by one politician (Jess Phillips MP in 2020). This is a curiously hyperbolic description for a solution which seeks to balance the rights of both parties to a marriage.

What is the mischief which this change is seeking to address? No explanation is given – other than the lie that it is a “veto”. (See also Is this really necessary, Minister? – (legalfeminist.org.uk))

2. It recognises that women married to men wishing to change gender legally should consent to a fundamental change in their marriage. Women’s consent matters. We should not have to say this or argue for this in 2024. A woman should not be forced to stay in a marriage against her will. She should not be forced into a same sex marriage against her will. She should not be forced to seek a divorce against her will as opposed to an annulment. 

It is troubling that in 2024 politicians should pay so little regard to the importance of women’s consent. What does it say about their attitude to women’s consent to matters affecting them? That “No does not mean No”? That a woman’s consent does not matter? That is an optional extra? That it comes second to the demands of men? And if women’s consent does not matter in a marriage, on what basis do such politicians argue that it should matter in other situations? Or should we worry that having chipped away at consent in this situation, it might be chipped away in others if men want something which that consent might deny them?

The Forced Marriage (Civil Protection) Act was passed in 2007 to prevent girls and young women being forced into marriage. The GRA provides a means whereby a woman is not forced to stay in a marriage. Rape in marriage was made unlawful in 1992 by the then House of Lords in R v R. The court rejected the idea of irrevocable consent through marriage, saying that it was unacceptable in modern times. It stated that each partner in a marriage should be seen as equal. Those principles – that there is no irrevocable consent and that partners in a marriage are equal – should not now be jettisoned merely to suit the wishes of one male partner wishing to make a fundamental change to his legal identity and the marriage he contracted. 

To call the provisions described above a spousal veto is a bad faith description. 

• It is misleading about what the law actually says. 

• It seeks to apportion blame unjustifiably on the woman.

• It disguises the removal of her autonomy in a matter which fundamentally affects her life. 

What politicians like to call a spousal veto is in reality a spousal exit clause. It carefully balances the rights of equal partners in a marriage. There is no basis for wilfully misdescribing it nor removing it.