Keywords: Transgender – Gender Recognition – Divorce – Human Rights –Proportionality – Marriage Law
Across the Council of Europe, 23 jurisdictions require that transgender individuals dissolve their marriage before obtaining legal gender recognition, on the basis that the marriage would otherwise be converted into a same-gender one. While European countries are increasingly willing to acknowledge preferred gender, there is concern that gender recognition should not become a Trojan horse for ‘marriage equality’. This article challenges the assumption that dissolution requirements can only be overcome through extending greater freedom to marry (as is currently evident in jurisdictions such as Northern Ireland). Within a European human rights framework, where domestic and supra-national actors have consistently rejected a right to ‘gay marriage’, tying trans marital protections to same-gender couples is an insufficient strategy both in its scope and impact. Instead, this article presents a two-pronged human rights critique of dissolution requirements which does not rely upon the introduction of ‘marriage equality’. First, according to Europe’s common law and civil law traditions, the validity and status of marriage is determined at the ‘point of entry’. Where a heterosexual couple contracts a valid marriage, their union remains, as a matter of law, opposite-gender even where one spouse obtains legal gender recognition. Second, even if gender recognition does convert a trans marriage into a same-gender union, additional considerations – the small number of couples, the existence of de facto homosexual marriages and the effect of divorce on trans families – suggest that dissolution requirements are a disproportionate interference with private and family life as enshrined in Art 8 ECHR.
This article has been accepted for publication in Child and Family Law Quarterly in Issue 4, Vol 28, Year 2016. The final published version of this article will be published and made publicly available here 24 months after its publication date, under a CC-BY-NC licence.