[Content note: Rape, homophobia, heterocentric, ciscentric culture.]
[Author's Note: I am by no means an expert in law. The information I have used for this blog post has been acquired through other articles and personal testimonies. If anyone wishes to clarify a particular legal position that would be appreciated. It’s also worth noting that the discussions today and tomorrow in parliament may mean that some things referred to in this blog post will have changed.]
So equal marriage. Gay marriage, same-sex marriage, civil partnerships, etc. is in the news a LOT at the moment. The third reading of the new marriage bill is going through parliament today and tomorrow. It’s brought a lot of homophobes out of the woodwork and caused me to swear at the radio more than once, but it’s also bringing about exciting opportunities to really change the institution of marriage and change it for the better. It’s a positive step forward and it’s good for me (a gay woman) to know that someday I might be able to get married in this country. Unfortunately, I’m not sure that, even if same-sex marriage becomes legal, the changes will be that radical.
Okay, so what are the problems with the same-sex marriage bill? A huge problem is that sex is legally defined as a penis inserted into a vagina (PIV). This effectively means that legally speaking a lot of gay people aren’t or have never had sex. (Not all, as obviously not all women have vaginas nor do all men have penises. There are also many Gender studies 101 points to be made here: people have had sex with partners of different genders; bisexuality and other people on the spectrum exist — ‘they’re here, they’re queer, get used to it’ oh and of course many heterosexual couples choose not to have PIV sex.) This means that marriage laws and civil partnerships involving gay people don’t require consummation of a marriage through sexual intercourse. It also means that legally gay people may not to be able to use adultery as a reason for divorce unless the person playing away had PIV sex. There is actually a line in the proposed bill that says “only conduct between the respondent and a person of the opposite sex may constitute adultery for the purposes of this section”. This is obviously ridiculous and needs to be changed but we also need to be aware that it’s being used by the anti-equality brigade as a way of arguing against and delaying the same-sex marriage bill. It’s important to realise that many heterosexual couples divorce on grounds of adultery even when there has been no PIV sex.
Basically this shit is complicated. Ideally I think a lot of feminists would like a re-evaluation of how we legally define sex by law and within our culture. (For example, it’s not legally rape unless it’s PIV. Oh and our old favourite: that sacred mythical concept of virginity and purity) But it’s also worth considering why marriages have to involve sexual consummation at all. If two people want to declare themselves publically partnered, to make someone their next of kin with all the rights and benefits that involves, why is it the law’s business if they have PIV sex, or indeed any type of sexual intercourse? The requirement by law for consummation to validate a marriage also adds another dimension and expectation to a marriage: that those within it are required to have sex and may feel obligated. Marital rape is now recognised and illegal in this country, but unhealthy attitudes towards consent remain tied to marriage. Furthermore, there are many asexual people in romantic relationships who may wish to get married. Not to mention those people who would like to make close personal friendships into next of kin ties; what right do we or the state have in saying they can’t do that?
Those writing the new law have also spent very little time considering the implications of the same sex marriage bill for trans* people. Currently married trans people have to get their marriages annulled upon legally transitioning to the opposite gender, those marriages that have been annulled will not be reinstated. Furthermore when trans people go to get their Gender Recognition Certificate (GRC), they will have to get their spouse to consent in writing to the GRC. If, that is the marriage was originally an ‘opposite sex’ marriage. Those who married as a ‘same sex’ couple will not have to have their spouse along to give legal consent. Presumably, because same sex couples aren’t as worried about becoming legally in a heterosexual relationship, while heterosexuals need their straight status protected. Oh and all this is only in reference to binary identifying trans* people, non binary identified people can still not legally get married, if they wish to be recognised as non binary, as the definition of marriage does not include people who identify as neither a man or a woman.
There are other problems connected to old-fashioned and outdated laws and legal requirements with marriage that feminists also need to be aware of and try to change. For example, I was made aware recently that on marriage certificate and legal documents you are required to put your father’s profession but there is no space for your mother’s. This is obviously outdated but actually becomes ridiculous when you learn that you can put a stepfather’s occupation down, even if they were only married to your mother for a brief amount of time during your childhood. There are other issues too: a friend of mine amicably split with her husband yet legally has to prove that they’ve been living separately for two years before they are able to divorce. This seems ridiculous; surely if two consenting adults can enter into a legal contact of marriage, they should be able to get divorced if both happily consent to the split. Even if one spouse wants to leave and is unhappy in the marriage, they should be able to do this without jumping through legal loopholes. Though I understand that a lot of the legalities of divorce were brought in to protect a vulnerable partner, people should be able to divorce simply because the marriage is no longer working. The Netherlands has the right idea in this regard, where simply the irreparable breakdown of a marriage constitutes grounds for divorce.
For many feminists of course, the institution of marriage is a patriarchal institution so tainted that they would much rather have a civil partnership that doesn’t have the same historic baggage. However the new proposals make no changes to allow opposite sex couples civil partnerships . Same sex and opposite couples will continue to be perceived differently in the eyes of the law.
I don’t want same-sex marriage to be delayed, I want same sex couples to be closer to equality as soon as possible, however we do need to keep pushing for a law that is up to date and relevant. Same-sex marriage is a positive step in the right direction, but making same-sex marriage legal should not be seen as the end of the process. What we really need to do is properly overturn and re-evaluate marriage, divorce and definitions of sex for the 21st century.
Text: Love is Love, Regardless of Gender. Support Marriage Equality at www.c4em.org.uk