Divorce link to transgender recognition is questionable

That a married person seeking gender reassignment should divorce poses questions, writes FERGUS RYAN

That a married person seeking gender reassignment should divorce poses questions, writes FERGUS RYAN

THE RECENTLY published report of the inter-departmental Gender Recognition Advisory Group, if implemented, will allow a transgendered person to align his or her legally assigned gender with what he or she experiences as their true gender, provided certain conditions are met. While these recommendations are broadly to be welcomed, the report poses difficult questions of policy that have profound and potentially distressing implications for transgendered persons and their families.

Notably, significant concerns have been raised regarding the proposed requirement that the applicant for gender recognition not be a party to a subsisting marriage or civil partnership. The implication is that transgendered people – as a precondition to the assignment of a new legal gender – must either annul or dissolve any such existing union.

The irony of requiring people to divorce as a precondition to gender recognition should not be lost on a population that until 1995 laboured under a regime that banned divorce outright. When divorce finally was introduced, it was permitted on grounds among the most exacting in Europe, conditions that emphasise divorce should be a last resort when all else has failed. It remains an open question whether requiring couples to divorce to gain a particular benefit amounts to an attack on marriage, contrary to Article 41 of the Constitution.

The elephant in the room, however, is same-sex marriage. The group expresses the concern that allowing a person to remain married notwithstanding a formal change of legally recognised gender in effect converts an opposite-sex marriage into a same-sex marriage. This would, the group maintains, be unconstitutional.

Where a transgendered person decides to transition, this may often precipitate the end of an existing marriage. In some cases, however, spouses may opt to remain in a relationship, notwithstanding the gender transition. The group’s report places such couples in an unenviable bind. It suggests a subsisting marriage or civil partnership will be a bar to recognition of a new legal gender, such that an applicant must choose between divorce (or an annulment if this is available) or remaining in their originally assigned legal gender.

In practice this may prevent some transgendered spouses from obtaining legal recognition under the proposed scheme.

Irish law requires, among other things, that a divorce will only be granted where the spouses have lived apart for four of the previous five years and have no reasonable prospect of reconciliation. These are constitutionally mandated requirements that may only be altered by referendum.

Notably, “living apart” as a prerequisite to divorce presupposes that spouses are living separate and independent lives in circumstances where at least one of the spouses has mentally determined not to continue the marital relationship. Thus, if the transgendered person and her spouse remain emotionally committed to each other, a divorce is simply not possible, even if they go through the motions of living in separate places. If the couple cannot show that their relationship has ended, it follows that the spouses cannot meet either the living apart or the “no prospect of reconciliation” tests that are mandatory prerequisites to divorce. In short, they will not be able to divorce.

In England, Wales and Northern Ireland, by contrast, transgendered people may access an interim gender recognition certificate on foot of which an existing marriage or civil partnership may be annulled. An annulment in Ireland has, however, the unfortunate effect of terminating most legal obligations of each spouse to the other, though recent cohabitation legislation would possibly provide some limited relief. There is nothing preventing the State from providing more extensive remedies to parties to annulled marriages, as they have done for unmarried cohabitants.

It may well be, however, that there is a legal solution that would not require a dissolution or annulment. The legal capacity of a person to marry is determined as of the specific date on which that person marries. What happens before or after that date is generally irrelevant – it is the status of the person precisely when she marries that counts.

If formal gender recognition is prospective in effect only – operating from the date of certification of the new gender and no earlier – then any pre-existing marriage should theoretically be unaffected. The important point is that the parties were legally of the opposite sex at the time of their marriage. This legal fact is not changed by any subsequent alteration in legal gender. This is perhaps a legal nicety, but it potentially gets around the objection that one is creating same-sex marriages contrary to current policy.

The alternative is to require the sundering of otherwise happy marriages to which the parties committed for life. If the advisory group’s proposals are accepted in full, applicants for gender recognition will be forced to present as atomised entities, shorn of prior civil status, rather than as citizens who may wish to sustain a valuable and enriching existing marriage or civil partnership. Given the very small numbers that will no doubt be involved, this approach seems disproportionate to say the least.

Dr Fergus Ryan is a lecturer in law at Dublin Institute of Technology