Why civil partnerships do not make for equal marriage

For those who think that they were made some kind of promise by the gay community that civil partnerships would be enough to ensure equality, I can confirm that no such promise was made by the trans community who have always known that civil partnerships do not provide true equality. As Jersey law stands, a person in a marriage or civil partnership who undergoes gender reassignment whilst still in that union is severely discriminated against.

A key part of a transgender person’s journey is acquiring their gender recognition certificate (”GRC”) after two years of living as their true gender. It is a legal document that means for all purposes you are the gender you present. It enables a trans person to have all legal documents amended, including their birth certificate. It also provides a degree of privacy protection for the trans person because it is an offence under the Gender Recogntion (Jersey) Law to “out” someone in possession of a GRC, for example, when giving an employment reference.

Under current Jersey legislation, at the point at which a trans person in a marriage or civil partnership applies for their GRC, they are forced to dissolve their union. Having done so, they are then expected to re-make their union using the vehicle appropriate to their gender and the gender of their spouse. The choice for transgender individuals in this situation is clear: either, do not apply for your GRC and continue having your official documents “out” you; or, change your official documents at the cost of losing your legal ties to your family.

Anyone who has been through a divorce will know that not only are there costs involved, emotional and financial, but also that a divorce immediately stops the continuation of joint arrangements, such as pension provisions, insurance policies and wills, some of which cannot be re-started without severe penalty. And, if the union has produced children, the situation gets even more complicated. I think that all sides of the marriage argument would agree that nobody should be forced to go through a divorce.

In 2006, the International Commission of Jurists and the International Service for Human Rights developed a set of international legal principles on the application of international law to human rights violations based on sexual orientation and gender identity. These were called the Yogyakarta Principles and, whilst not adopted as an international standard, are cited by UN bodies and national courts, and many governments have made them a guiding tool for defining their policies in the matter. The European Commissioner for Human Rights has endorsed the Yogyakarta Principles, in particular principle number 3, and considers them an important tool for identifying the obligations of states to respect, protect and fulfil the human rights of all persons, regardless of their gender identity.

Yogyakarta Principle number 3 states that, “Each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom… No status, such as marriage or parenthood, may be invoked as such to prevent the legal recognition of a person’s gender identity.”

Whilst legislation exists that gives opposite-sex couples a different piece of paper from same-sex couples, there will always be an inequality at the heart of the island’s laws. Jersey is proudly bringing in the first piece of anti-discrimination legislation later this year and, yet, enshrined within its laws is a nasty little “gotcha” that discriminates against a person in a marriage or civil partnership who transitions. If Jersey is serious about improving its human rights credentials on the world stage, it needs to adopt the Yogyakarta Principles as an internationally recognised model of best practice and address anomalies within its legislation such as this.

This is why Trans* Jersey is supporting Guernsey’s proposition for a Union Civile that requires all couples, regardless of gender, to wed in a civil ceremony that registers the union for legal purposes. Having done the legal part, couples who then wish to seek a church service aligned to their religious beliefs regarding marriage can do so. This solves the argument over the definition of marriage that exercises religious and secular groups, and it enables a transgender person to acquire their GRC and alter the gender on their Union Civile certificate without having to divorce. It is an elegantly simple solution to the problem and one that we hope Jersey will also propose, debate and pass.