In defence of degendering civil partnership...

Although no devotee of the concept of marriage in my own life, my political views on the topic are plain and trenchant.  Same-sex marriage should be introduced in Scotland. My own preference is to eliminate the gendered aspects of marriage and civil partnerships both, permitting an array of relationships and folk to have their circumstances recognised by the state, without anxious fussing over gender.  If the nation's clerics and celebrants are content to conduct either of these ceremonials in their respective temples, let it be so. If not, not. That said, I'm not insensible to an argument recently advanced by the Heresiarch, about what he calls the "apotheosis of coupledom", and the implicit exclusions of the approach advocated here ...

"As I wrote recently elsewhere, the gay civil partnership doesn't just (or even mainly) represent the extension of rights traditionally enjoyed only by heterosexuals. It also represents the apotheosis of coupledom, the clearest possible demonstration of official faith in the moral superiority of the two-person relationship. The moralisation of the couple - a unit both erotic and companionate - might (if you want to go back that far) be traced to Plato's Symposium, but the more immediate source is the Protestant Reformation, which held it out as an alternative ideal to the Catholic cult of virginity. Marriage, in the Catholic view, was mainly intended for procreation, hence the ban on contraception and the preference for large families."

In a piece much to be recommended, SNP MSP John Mason has written this delightfully self-aware and self-reflective analysis, unpacking his position on same-sex marriage in a way he has not hitherto attempted during his often perplexing appearances on television, discussing the topic. You will recall that Mason was pretty sharply indicted, not least by fellow SNP parliamentarians, for a motion lodged in Holyrood earlier this year, rejoining later that he was "relaxed" about the idea of same-sex marriage, thereby confusing several folk about his position. The joy of John's piece is not in agreeing with its theology, nor accepting its analysis of the vices of homosexual conduct, but its welcome temperateness and earnest attempt to address the idea of "religion in the public square" and in the parliament. We could do with rather more of this spirit in our public life.

Here, however, I wanted primarily to focus on why the gendered aspect of marriage and civil partnerships are not simply abstract, nor academic, but something seriously to be thought about, if you regard same-sex marriage as an admissible and desirable concept for Scotland to adopt. Take the example of a couple, happily married for several years. Say one of the parties finally decides to avail themselves of the Gender Recognition Act 2004, which allows persons to change their gender in law. Applicants have to demonstrate that they (a) have or have had gender dysphoria, (b) have lived in the acquired gender throughout the period of two years ending with the date on which the application is made, (c) intended to continue to live in the acquired gender until death, and can produce certain evidence to that effect. Under this piece of legislation, where a gender recognition certificate is granted, "the person’s gender becomes for all purposes the acquired gender." A splendid thing, you might think. But there's a catch, and a big one, for this cheerful, committed couple. Their commitment to one another is as nought. Under the law as it stands, you are only eligible to be in a civil partnership with an individual of the same sex, and married to an individual of the opposite sex. It is crucial to keep this detail in mind.

So what happens to a marriage or a civil partnership when one of the individuals in it seeks legally to change their gender? The answer is that married or civilly partnered trans people will only be issued with an interim gender  certificate - until their partnership or marriage has been dissolved. Full recognition is contingent on the end of these existing connubial ties (at least legally). You may be surprised to discover that there is no mechanism at present simply to transform a marriage into a civil partnership in these circumstances. Instead, full gender recognition is precisely contingent on pulling apart the couple's legal ties, whatever the nature of their relationship, or their desire to continue living within it. The same unhappy requirement attaches to those in civil partnerships. If the couple cease to be of the same gender in law by seeking one of these certificates, their partnership must end for full recognition to be bestowed. This seems a highly suspect, wildly presumptuous and frankly inhumane requirement to impose; increasingly so if Scotland moves towards a more encompassing concept of marriage and a more differentiated and subtle idea of the happy range of human relationships.

This trans-dimension also has clear implications for the basis of civil partnerships, meaning that we can't and shouldn't be thinking about same-sex marriage in isolation.  At this stage in Nicola Sturgeon's consultation, it is unclear how the Scottish government envisages approaching issues of gender recognition, if same-sex marriage is adopted into law.  The vital question, it seems to me, is whether the government intend to approach marriage as two distinct institutions - having exclusively same-sex marriages and opposite-sex marriages - or whether we propose to adopt a single concept of marriage, in which the gender of participants is irrelevant.  If we adopt "a two-institutions" approach, it is easy to envisage that the unattractive procedures of the Gender Recognition Act might obtain. If one parter changes gender, they'd have to get their opposite-sex marriage dissolved, and if they wished to, enter into another same-sex marriage or civil partnership with the same partner under their new, legally recognised gender. Alternatively, and in my view, clearly preferably, we could adopt a single definition of marriage that is simply silent on gender, and legal trans-transitions would have no effect whatsoever on the status any pre-existing marriage, nor would gender recognition be contingent on divorce. Either way, a decision will have to be made and to their credit, the Scottish Government consultation shows a clear awareness of this dimension.

So much for marriage. From a trans-justice point of view, however, a little thought shows that if left unreformed alongside, with its existing limitations, we'll soon be faced with the paradoxes in the administration of our civil partnerships. Remember, at present, you can only be civilly partnered to another person of the same sex. Under the new, liberalised marriage regime I'm envisaging, gender recognition within marriage need not be a problem, as our new definition of marriage need not be defined with respect to gender.  The Scottish Government consultation is silent on whether the parallel constraints on civil partnerships should similarly be liberalised, to allow men and women to get hitched while avoiding the institution of marriage altogether. At the moment, the government is primarily interested in the idea that civil partnerships should be capable of being celebrated by clergy, in churches. Such a narrow beam of attention seems to me an opportunity missed, overestimating the degree to which civil partnerships and marriage can be tidily separated.

Say the SNP don't follow my advice, and leave civil partnerships the exclusive preserve of same-sex couples, while adopting a single definition of marriage which does not impose gender qualifications and disqualifications on who can and cannot marry.  Under these conditions, a gender recognition certificate being granted to one partner need not require their marriage to be dissolved. It would be altogether different, however, if this couple had transacted a civil partnership before legal recognition of a gender change was sought by one  partner. If their gender qualifications are left unreformed, civil partnerships would continue to be dissolved when gender recognition results in a gender mis-match between partners who embarked on the legally formalised stage of their relationship the same gender. It would seem clearly paradoxical and unjust if mid-marriage trans-transitions left the relationship's legal status unaffected, while gender changes in civil partnerships would continue to be legally fatal to the formal recognition of the relationship, forcing an end to its current form. 

No discernible good would be served by such distinctions, and arguably, no good is served at all by making gender recognition contingent on the end of marriage, whether happy or not, committed or not, continuing or not.  If the law is not to presume that marriages may only be formed between men and women, it has no business presuming all marriages ought to end when that heteronormative image no longer obtains. So too for civil partnerships, which I'd strongly contend should be available irrespective of the gender of the couple seeking them, not least because failing to liberalise their gender qualifications has clear potential to generate perverse and unfair outcomes for trans people presently in legally-recognised relationships, but who aren't married.  A closer look at civil partnerships, it seems to me, is very much indicated.

For those interested in these issues, the Scottish Government consultation period ends on the 9th of December. The consultation documents can be read here, while Equal Marriage Scotland have generated this handy, simplified tool to make your views known to Scottish Ministers. Make your views known.