28 November 2011

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.


  1. Completely agree, but I'm a bit bemused as to under what circumstances you think a heterosexual couple might ever want a civil partnership rather than a marriage.

  2. I remember that Heresiarch piece - the thread was very amusing.

    Agree about John Mason - don't like the cut of his godly jib but like the way he accepts the fact that disagreement is legitimate - we can't have too much of that in Scotland.

    As for degenerating civil partnership couldn't agree more. If penguins, giraffes and horses and many other creatures can accommodate same-sex partnerships within their social groups then I don't see why we can't be similarly accepting of what is a perfectly natural phenomenon.

  3. 'degenerating'?? - I meant 'degendering'!!

  4. I'm not sure what advantage there is in maintaining civil partnerships at all. If you make both institutions gender blind, (so they are in law couplings between two people irrespective of gender, which may or may not be blessed or clebrated in a religious institution, according to the rules of those institutions), why do you need two institutions at all.

    if hetero-, or indeed homo-sexual couples want to avoid the baggage of marriage could the law not include some handy lawyerly phrase such as 'legal partnership, commonly called marriage' and leave the naming of relationships to the individuals involved, in consultation with their friends families and communities cultural or clerical.

  5. I'm all for making both civil partnerships and marriage de-gendered, but as part of a non-religious heterosexual couple, I'd far prefer a civil partnership than a marriage. For some of us, the idea of marriage has so much cultural baggage it's just not something we want to do. But to have a straightforward legal recognition of our longterm relationship, our children and, particularly in the future, our joint finances would be extremely valuable. At the moment, this is much more difficult to arrange than it seems, while a civil partnership can easily fulfill that function - society equates it with marriage, but without the religious and patriarchal overtones.
    To allow those who want to get (or stay) married to do so regardless of gender, and all those who want to be civil partnered likewise is surely a simple and welcome step towards a more equal Scotland.

  6. RevStu they might just want to be awkward.

    Such behaviour is not unknoown in Scotland. And on this blog.

  7. I think there would be a demand for civil partnerships from heterosexual couples, so would be in favour of gender blind choice between civil partnership & marriage for those couples who wish to register their relationships.

    I don't think that the equality act would mean that any church would be forced to peform same sex marriage if it went against their theological position. Their freedom to worship would beat any spurious claim made I think.

    On the other hand, there are religious organisations which do want to perform same sex weddings & at the moment the law prevents them from doing that. I don't think it is the state's business to tell churches how to interpret scripture, so that legal barrier should be removed.

    Although marriage & civil partnership require to be regulated, I think less is more. There is no need to make it complicated. Offer marriage or civil partnerships, able to be celebrated by religious bodies who want to do so, to any couple regardless of sexual orientation, & then leave the couples & the churches to make their choice.

  8. I do not see any problem with legally recognised parterships, but there should be equality for homosexual and hetrosexual relationships.

    Religions should be allowed to set their own rules as to who can and cannot be married in their place of worship. We cannot have legislation forcing religions to do otherwise.

    A slight aside, but related I suppose. I recently completed the NHS Scotland patient GP survey. One of the questions asked what my sexual orientation was (no option for "Yes Please!"). These are the choices:

    1. Hetrosexual
    2. Homosexual
    3. Bi-sexual

    All well and good. Then there is a a fourth choice:

    4. Other

    You can imagine the suggestions when I raised the matter on Facebook!

    I wonder if that will be included in any legislation.......

  9. To pick up a few points...

    I agree with those who suggest that there are plenty of good reasons - rather than just being contrary and bloody minded - why we might envisage a reasonable number of heterosexual couples might prefer civil partnership to marriage.

    Although it isn't on my own horizons, if I had the option of both available to me, I'd be sorely tempted by the idea of being in a partnership rather than a marriage. I can see how having a pair of legally indistinguishable "marriage" institutions may look cumbersome, however, a liberalising approach of the sort I outlined above would actually have the benefit of relative simplicity compared to the status quo, particularly from the perspective of mid-relationship transitions to new genders.

    "Isn't this all a bit arcane?", someone asked me on Twitter with respect to the issues I discussed above. Interestingly, that prompted four folk to mention that they'd all been involved, whether in a personal or professional level, in the complex, unwieldy and unhappy process of mediating between the gendered demands of our contemporary ideas of marriage and civil partnerships on one hand, and gender recognition on the other.

    Moreover, I generally sympathise with the idea of churches being deprived of their capacity legally to conduct marriages, but able to ritualise however they so wish, as happens elsewhere. However, I'm skeptical whether this second proposal is likely to be taken up by the Scottish Government. Many of these Church groups are clearly vexed enough by the idea of permitting same-sex marriage at all - one suspects that they might perceive it as a provocation too far, to relieve them of their marriage powers. On that rather compromised, practical visa, I'm very much willing to settle for something less than recognising only civil marriage/partnership.

  10. As I've argued here before, what's missing in this analysis is any sense as to why the state should take an interest in the love lives of its citizens. The existence of marriage was traditionally focused on procreation and the successful rearing of children, together with ensuring continuing support to the partner who had sacrificed (usually) her economic power in childrearing.

    Now perhaps we're going to decide that the heterosexual stable couple isn't the best way of raising children.But if so, I'd like to have seen a public debate about that first. At the moment, we're redesigning the institution of marriage without any consideration of the common good it was supposed to serve.


  11. On reflection I think what you are actually up against Asterix is the idea of romantic love. That is the true "enemy" if you like of a traditional concept of marriage - and it's one of the most powerful forces in the western world.

    If you think about all the books we read, the films we watch, the music we listen to, the concept of romantic love is so pervasive and of course true love generally ends the same way - they get married and live happily ever after.

    So it's not surprising that, in a society that has accepted same sex relationships as being normal and natural, the idea of same sex marriage should take off.

    I blame that Jane Austen myself, she started it.

  12. Well, perhaps I'm up against the identification of romantic love and marriage! (Which strikes me as mere foolishness and sentimentality.) But I don't think Jane Austen can be blamed for conflating the two. As MacIntyre says on Austin: 'Her novels are a moral criticism of parents and guardians quite as much as of young romantics; the worst parents and guardians -the silly Mrs Bennet and the irresponsible Mr Bennet, for example -are what the romantic young may become if they do not learn what they ought to learn on the way to being married.'
    (After Virtue, 2nd ed. p239).

    MacIntyre presents Austen as a late flowering of the Aristotelian understanding of the human telos (goal) within an institution, marriage, with a particular social function. If you're urging a serious consideration of the nature of marriage along these lines, rather than a simplistic idea that 'it's all about love', couldn't agree with you more.


  13. I hadn’t known about this problem of transgendering re marriages/civil partnerships before and once again you’re doing us a favour by pointing out something that is plainly wrong.

    I suggest that the present debate and consultation have their roots in deficiencies in the concept of civil partnership as originally set up. Several issues were glossed over, probably to avoid stirring up the churches too much.

    Unlike, I believe, several other systems Scots law does not require parties to a civil partnership to be in a sexual, rather than a personal, relationship. In my experience in practice many people contracted them for reasons of financial security and inheritance tax. Is it not then unjust that siblings, same or opposite sex, who happily cohabit cannot avail themselves of the law and can face extreme hardship when one of them dies, just because the law of civil partnerships, like that of marriage, follows Leviticus?

  14. Groundskeeper Willie1 December 2011 at 13:28

    Maybe it would be easier to ban marriage.

    That would achieve the desired outcome.

  15. Groundskeeper Willie1 December 2011 at 13:39


    'I blame that Jane Austen myself, she started it.'

    Austen, the 'proto Marxist'?

    I think you need to re read her.

  16. It actually used to be a point of view held by CHURCHES that childless couples were also not true marriages since the purpose of marriage is to beget children.

    Christians have abandoned the Laws of God, as given via Moses and the Prophets to Man in favour of the Pauline doctrine that the way to heaven is to only be gained by love of Christ. then you are stymied.

    Remember, Christianity means abandoning the laws of the Jews and only requiring the acceptance of Christ

    All those laws of God saying that homosexuals are naughty people is in the OLD Testament, not the New.

    But you've abandoned those old, Jewish laws

    Now, the New Testament makes no judgement on homosexuals, except PERHAPS in a couple of mistranslations from the Aramaic and Greek.

    So, given this, Christians have no reason to discriminate agains homosexuals

  17. Hi anon! (I assume you're the same anon I'm having the exchange with on 'Scot goes pop' -as your arguments are the same!)

    Fundamentally, I don't think many (actually, now I've reread them, any!) of your assertions here are true. It would clearly get tedious to explore all of them in depth, so let's pick one. Which church and when said that infertile couples weren't properly married? (The Catholic Church's position as I understand it is that the intention to be childless nullifies the marriage, but not the simple fact of childlessness.)

    In principle, I'm sure an argument could be made for excluding infertile couples from marriage. It's not one I'd want to make. It's not one being made by any of the mainstream churches. (I exclude the Latter Day Assembly of Snake Handlers or similar.) It's not one that (as you've conceded elsewhere) has ever been made in Scotland. But, mostly for fun,I'm slightly curious to see if you have any evidence at all to back up your assertions.