I would like to thank Les Moran and Angus Dawson for reading through drafts of this article, for their constructive comments and for their generosity. I would also like to thank the two anonymous referees for the Modern Law Review whose careful readings of the article and considered comments have been particularly helpful.
Transgender Marriage and the Legal Obligation to Disclose Gender History
Version of Record online: 21 DEC 2011
© 2012 The Author. The Modern Law Review © 2012 The Modern Law Review Limited.
The Modern Law Review
Volume 75, Issue 1, pages 33–53, January 2012
How to Cite
Sharpe, A. (2012), Transgender Marriage and the Legal Obligation to Disclose Gender History. The Modern Law Review, 75: 33–53. doi: 10.1111/j.1468-2230.2011.00887.x
- Issue online: 21 DEC 2011
- Version of Record online: 21 DEC 2011
- Gender History;
Section 12 of the Matrimonial Causes Act 1973 as amended by the Gender Recognition Act 2004 requires transgender people to disclose their ‘gender history’ to the other party to a marriage prior to the marriage ceremony. Failure to do so enables the other party to exit the relationship through nullity proceedings. This article argues that this provision is discriminatory and encroaches on the right to privacy, breaching Articles 14 and 8 of the European Convention on Human Rights. It challenges the idea, implicit in the provision, that non-disclosure of gender history is unethical or fraudulent. Crucially, the article considers and rejects the claim that discrimination against and encroachments on the privacy of transgender people are justified because inadvertent sexual congress with a transgender person is potentially harmful. Finally, if a consent-based right to know exists, it argues that it ought to be trumped by considerations of justice, legal consistency and public policy.