GLAD Seminar: Marriage, Nullity, and Trans Spouses with Dr Alan Brown

In England and Wales, the rights of trans people have long been intertwined with marriage. When, in Corbett v Corbett, Justice Ormrod declared that April Ashley was not legally a woman, he was actually determining her status for the purposes of marriage rather than the general law. In Goodwin v United Kingdom, the European Court of Human Rights held that an absolute prohibition on legal gender recognition violated both Article 8 and the right to marry under Article 12.

Although the Gender Recognition Act 2004 broadened opportunities for trans people to marry, challenges still remain. Under section 12(1)(a), a different-sex marriage is voidable where there exists an incapacity to consummate. However, existing case law suggests that some trans individuals may never be able to consummate in their lived gender. Similarly, under section 12(1)(g) (read with the Marriage (Same-Sex Couples) Act 2013), trans individuals must annul their marriage if their spouse objects to remaining married post-Gender Recognition Certificate (GRC). Finally, under section 12(1)(h), a marriage is voidable if, upon entering that marriage, one party did not know that their spouse had obtained a GRC. This paper analyses the trans-focused rules in section 12(1), considering the extent to which the current law is justified as a matter of policy, consistent with general principles of English family law, and potentially in violation of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950.

Dr Alan Brown is a Senior Lecturer in Private Law at the University of Glasgow. His research interests are primarily in the field of family law, focusing on the construction of the family and parenthood within the law, particularly in the context of assisted reproduction, surrogacy, and non-traditional families. His monograph, ‘What is the Family of Law? – The Influence of the Nuclear Family’ was published by Hart Publishing in February 2019.