Right to marry
Men and women of marriageable age have the right to marry and to start a family.
The European Court of Human Rights ruled in 2002 that this right extends to transsexual people who are now able to marry or enter civil partnerships in their acquired gender because of the Gender Recognition Act (2004).
The Civil Partnership Act 2004 means that gay men and lesbian women in the UK are now able to register civil partnerships. Couples who register a civil partnership have the same rights as heterosexual married couples in areas like tax, social security, inheritance and workplace benefits.
The right to marry is subject to national laws regulating marriage, including laws that prohibit marriage between certain types of people (for example close relatives).
Although the government is able to restrict the right to marry, it must not impose limitations which impair the very essence of the right.
An apparent anomaly to the above exists in circumstances where a transsexual person has remained in a marriage or civil partnership contracted with someone prior to their gender transition and legal recognition.
In these circumstances the Government was concerned that to give legal recognition to the transsexual person would create a same sex marriage (or an opposite sex civil partnership).
The principle established for the Civil Partnership Act was that marriage is for people of opposite genders and civil partnership is for people of the same gender.
Consequently the Gender Recognition Act does not allow a full Gender Recognition Certificate to be issued where there is such a pre-existing marriage. The Act instead allows for the issue of an ‘Interim’ Gender Recognition Certificate.
An Interim Gender Recognition Certificate does not confer legal recognition of the applicant’s acquired gender. However, it does create a rapid means for the applicant’s marriage to be dissolved, whereupon full legal recognition follows.
In principle, following the legal recognition, the former spouses are then able to contract a civil partnership (or marriage) as appropriate for their respective legal genders. Special court rules allow for the complete process (dissolution, recognition, new partnership) to be completed within the space of hours on the same day – although local magistrates and registrars may need to be made familiar with the correct procedure to follow.
This is the only known example where the law requires someone to forgo one right (the right to remain married to their partner) in order to access another (the right to private life afforded by the Gender Recognition Act).
This anomaly has led to some transsexual people deciding not to use the Gender Recognition process, as they argue their marriage vows were for life and they object to the idea that their partner (by remaining with them and true to those vows) would be unfairly treated by dissolving the original bond.
What the law says
Article 12: Right to marriage
Men and women of marriageable age shall have the right to marry and to found a family, according to national laws governing the exercise of this right.
B & L v the United Kingdom (2005)
English law prohibited a parent-in-law from marrying their child-in-law unless both had reached aged 21 and both their respective spouses had died. B was L’s father-in-law, and they wished to marry. L’s son treated his grandfather, B, as ‘Dad’.
The court accepted the government’s argument that the legislation had the legitimate aim of protecting the family and any children of the couple. However, it nonetheless considered that there had been a violation of the right to marry. The prohibition was based primarily on tradition. There was no legal prohibition on a couple in this situation engaging in an extra-marital relationship. Moreover, on several occasions couples had obtained exemptions from the prohibition by personal Acts of Parliament. This showed that the objections to such marriages were not absolute.
(Case summary taken from Human rights, human lives, Department for Constitutional Affairs, 2006.)
Christine Goodwin and another woman referred to as “I” were transsexual women whose cases were heard together by the European Court of Human Rights. They followed in the footsteps of several previous applicants presenting similar cases (Rees – 1986; Cossey – 1990; and Sheffield and Horsham – 1998). Both applicants presented evidence that the refusal by the Government of the United Kingdom to provide for legal recognition of their permanent change of gender role led to multiple violations of their right to private life (Article 8) and their right to family life (Article 12) – the latter because of their inability to marry someone of the opposite gender role. The Government argued that neither woman’s right to marry was impinged because they were both free to marry other women (being legally men). This was long before the Civil Partnership Act was planned. The court did not agree with the Government’s arguments and ruled unanimously that previous decisions to award the UK a margin of appreciation could no longer apply. The judges decided that it would not place a disproportionate burden on society to require the Government to accommodate the needs of transsexual people by issuing new birth certificates and permitting marriage to someone of the opposite gender.
Last Updated: 09 Jun 2009