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Footnotes

  • 1
    M. Foucault, The Archaeology of Knowledge (New York: Pantheon Books, A. M. Sheridan Smith tr, 1972) 17.
  • 2
    For a discussion of trans terminology see L. Feinberg, Transgender Liberation: A Movement Whose Time has Come (New York: World View Forum, 1992); K. Bornstein, Gender Outlaw: On Men, Women, and the Rest of Us (New York: Routledge, 1994); and R. A. Wilchins, Read My lips: Sexual Subversion and the End of Gender (Ithaca, New York: Firebrand Books, 1997).
  • 3
    Full recognition under the GRA requires transgender applicants to be at least 18 years of age at the time of applying for a Gender Recognition Certificate (GRC) (s 1); to have been diagnosed as ‘having or having had gender dysphoria’ (s 2(a)); to have lived in the ‘new’ gender for a period of 2 years (the so-called ‘Real Life Test’) (s 2(b)); to sign an affidavit stating an intention to live permanently in the ‘new’ gender ‘until death’ (s 2(c)); and if previously married, to have divorced (s (3)). Recognition does not require that an applicant has undergone any surgical procedures or taken hormones.
  • 4
    GRA, s 11 gives effect to schedule 4 to the Act. Crucially, paragraph 5 of schedule 4 amends the MCA, s 12 to add a new ground for rendering a marriage voidable, namely:

    (h) That the respondent is a person whose gender at the time of the marriage had become the acquired gender under the Gender Recognition Act 2004.

    Paragraph 42 of the Explanatory Notes to the Act provides further detail as to how this section is to operate. Thus where:

    At the time of the marriage one party to the marriage did not know that the other was previously of another gender, the former may seek to annul the marriage.

    A provision pertaining to non-disclosure of gender history is also present in the Civil Partnership Act 2004. Thus a civil partnership will be voidable where the respondent had obtained a GRC (s 50(e)) prior to the ceremony and the petitioner was unaware of this fact (s 51(6)).
  • 5
    While beyond the scope of this article, non-compliance with the gender history provision may also lead to a finding of inequitable conduct barring ancillary relief under the MCA, s 25(2)(g).
  • 6
    N. Lowe and G. Douglas, Bromley's Family Law (Oxford: Oxford University Press, 10th ed, 2006) 90.
  • 7
    See notes 25–32 below. Moreover, it is precisely heterosexual intercourse and therefore the possibility of procreation that explains why gender actually matters in the context of marriage. Of course, it might be claimed that non-disclosure of gender history produces harm even where a marriage relationship remains non-sexual. The characterisation of inadvertent sexual congress as harmful puts the case for harm at its strongest through invoking the right to sexual integrity. Accordingly, it is this claim of harm that the article will challenge. In any event, it is contended that, irrespective of sexual congress, feelings of disgust and/or revulsion occasioned by knowledge of gender history fail to meet a threshold of harm sufficient to justify state intervention against transgender people (J. S. Mill, On Liberty (London: Longman, 1998).
  • 8
    J. Herring, ‘Mistaken Sex’ (2005) Criminal Law Review 511524, 523.
  • 9
    J. Herring, ‘Mistaken Sex’ (2005) Criminal Law Review 522523 (emphasis added).
  • 10
    J. Herring, ‘Mistaken Sex’ (2005) Criminal Law Review 523.
  • 11
    R. Williams, ‘Deception, Mistake and Vitiation of the Victim's Consent’ (2008) 124 Law Quarterly Review 132159, 149. The Law Commission have rejected such a conclusion and have noted its incompatibility with Article 8 of the European Convention on Human Rights (Law Commission, Consent in Sex Offences: A Policy Paper: Appendix C of Setting the Boundaries (London: Home Office, 2000, para 5.31).
  • 12
    Contemporary scientific studies conducted post mortem on transgender women suggest that they possess a female brain structure. Such studies support the hypothesis that gender identity develops as a result of an interaction of the developing brain and sex hormones (L. J. G Gooren, J. N. Zhou, M. A. Hofman and D. F. Swaab, ‘A Sex Difference in the Human Brain and its Relation to Transsexuality’ (1995) 378 Nature 6870; F. P. M. Kruijver, J. N. Zhou, C. W. Pool, M. A. Hofman, L. J. G. Gooren and D.F. Swaab, ‘Male-To-Female Transsexuals have Female Neuron Numbers in a Limbic Nucleus’ (2000) 85 J Clin Endocr Metab 20342041; see also M. M. McCarthy, J. M. Schwarz, C. L. Wright and S. L. Dean, ‘Mechanisms Mediating Oestradiol Modulation of the Developing Brain’ (2008) 20 J Neuroendocrinol 777783; M. M. McCarthy, C. L. Wright and J. M. Schwarz, ‘Old Tricks by an Old Dogma: Mechanisms of the Organizational/Activational Hypothesis of Steroid-Mediated Sexual Differentiation of Brain and Behavior’ (2009) 55 Horm Behav 655665; E. Govier, M. Diamond, C. Slade and T. Wolowiec, ‘Dichotic Listening, Handedness, Brain Organization and Transsexuality’ (2010) 12 Intl J Transgenderism 144154).
  • 13
    Emphasis on legal recognition is not inconsistent with a view of transgender identity as stable and long-standing. The legal stamping of gender as definitive does not ground ontological claims. Rather, it provides them with the imprimatur of law and makes the right to marry possible. Accordingly, once a GRC has been granted, which, of course, will always be the case in relation to the marriage issue under consideration, there is no longer any discrepancy between gender identity and legal gender status.
  • 14
    J. Herring, ‘Mistaken Sex’ (2005) Criminal Law Review 523.
  • 15
    R. Williams, ‘Deception, Mistake and Vitiation of the Victim's Consent’ (2008) 124 Law Quarterly Review 149.
  • 16
    ‘Transphobia is an emotional disgust toward individuals who do not conform to society's gender expectations … The “phobia” suffix is used to imply an irrational fear or hatred, one that is at least partly perpetuated by cultural ideology’ (D. Hill and B. Willoughby, ‘The Development and Validation of the Genderism and Transphobia Scale’ (2005) 53 Sex Roles 531544, 91).
  • 17
    It might be suggested that the claim that a GRC is a reliable indication of gender does not sit well with the possibility of a transgender man becoming pregnant subsequent to a marriage. Indeed, this scenario has actually occurred in the USA http://www.guardian.co.uk/world/2008/nov/13/gayrights-usa-thomas-beatie-pregnant (last visited 2 August 2011). A number of comments need to be made here. First, the fact that a transgender man, Thomas Beatie, became pregnant does not detract from his strongly felt sense of gender identity as a man. Given that his wife lacked reproductive capacity he chose to delay a hormonal process that would have rendered him sterile in order that the couple were able to become parents with at least some genetic link. This case might be used to support the claim of a right to know. However, given the facts that this case is a rare instance in another jurisdiction and that there is no evidence of any such occurrence in the UK, it would seem disproportionate, on this basis alone, to single out transgender people for special legal attention through the disclosure provision. Moreover, the decision to have a child in the Beatie case was made jointly by both Thomas Beatie and his wife. There was no deception of any kind.
  • 18
    S. Whittle, L. Turner and M. Al-Alami, The Equalities Review: Engendered Penalties: Transgender and Transsexual People's Experiences of Inequality & Discrimination (London: Press for Change, 2007); J. Morton, Transgender Experiences in Scotland: Research Summary (Scottish Transgender Alliance: Edinburgh, 2008).
  • 19
    However, law's construction of sex here fails to take into account the growing scientific evidence pointing to a biological explanation for transgenderism (seeL. J. G Gooren, J. N. Zhou, M. A. Hofman and D. F. Swaab, ‘A Sex Difference in the Human Brain and its Relation to Transsexuality’ (1995) 378 Nature 6870; F. P. M. Kruijver, J. N. Zhou, C. W. Pool, M. A. Hofman, L. J. G. Gooren and D.F. Swaab, ‘Male-To-Female Transsexuals have Female Neuron Numbers in a Limbic Nucleus’ (2000) 85 J Clin Endocr Metab 20342041; see also M. M. McCarthy, J. M. Schwarz, C. L. Wright and S. L. Dean, ‘Mechanisms Mediating Oestradiol Modulation of the Developing Brain’ (2008) 20 J Neuroendocrinol 777783; M. M. McCarthy, C. L. Wright and J. M. Schwarz, ‘Old Tricks by an Old Dogma: Mechanisms of the Organizational/Activational Hypothesis of Steroid-Mediated Sexual Differentiation of Brain and Behavior’ (2009) 55 Horm Behav 655665; E. Govier, M. Diamond, C. Slade and T. Wolowiec, ‘Dichotic Listening, Handedness, Brain Organization and Transsexuality’ (2010) 12 Intl J Transgenderism 144154)
  • 20
    R. Sandland, ‘Feminism and the Gender Recognition Act 2004’ (2005) 13 Feminist Legal Studies 4366.
  • 21
    DSM-IV-TR: Diagnostic & Statistical Manual of Mental Disorders (Arlington, VA: American Psychiatric Association Press, Inc, 4th revised ed, 1994) s 302.85. For a critique of the mental illness model in relation to the GRA see S. Cowan, ‘Gender is no Substitute for Sex: A Comparative Human Rights Analysis of the Legal Regulation of Sexual Identity’ (2005) 13(1) Feminist Legal Studies 6796.
  • 22
    http://www.wpath.org (last visited 4 August 2011). Indeed, the WPATH 2011 Bi-annual Symposium is entitled ‘Transgender Beyond Disorder: Identity, Community, and Health’ (Atlanta, Georgia 24–28 September 2011). See also W. Bockting, ‘Are Gender Identity Disorders Mental Disorders? Recommendations for Revision of the World Professional Association for Transgender Health's Standards of Care’ (2009) 11(1) Intl J of Transgenderism 5362.
  • 23
    R. Bayer, Homosexuality and American Psychiatry: The Politics of Diagnosis (Princeton, NJ: Princeton University Press, 1987.
  • 24
    The World Health Organisation removed homosexuality from its International Classification of Diseases (ICD-10) in 1992.
  • 25
    The Hon Andrew Selous, HC Deb 2nd Reading col 166 11 March 2004.
  • 26
    See, for example, MT v JT 355 A 2d 204 (1976), 205; M v M [1991] NZFLR 337, 348; Re Kevin and Jennifer v Attorney-General for the Commonwealth of Australia [2001] FamCA 1074 at [39].
  • 27
    325 NYS 2d 499 (1971).
  • 28
    325 NYS 2d 490 (1971).
  • 29
    B. Morkham, ‘From Parody to Politics: Bodily Inscriptions and Performative Subversions in the Crying Game’ (1995) 1 Critical inQueeries 4768.
  • 30
    [1998] 1 All ER 431.
  • 31
    [1998] 1 All ER 439.
  • 32
    [1998] 1 All ER 456.
  • 33
    A. Gross, ‘Gender Outlaws before the Law: the Courts of the Borderlands’ (2009) 32 Harv J L and Gender 165231, 199.
  • 34
    [1998] 1 All ER 466.
  • 35
    A. Sharpe, ‘English Transgender Law Reform and the Spectre of Corbett’ (2002) 10(1) Feminist Legal Studies 6589.
  • 36
    MCA, s 12(e) and (f).
  • 37
    Conversely, anybody might become infected with venereal disease and any woman with reproductive capacity might become pregnant. In other words, MCA, s 12(e) and (f) are concerned with facts the occurrence of which is contingent. There is nothing contingent about the fact of being transgender.
  • 38
    MCA, s 13.
  • 39
    Inter-racial marriage has been, and in some parts of the world continues to be, outlawed. In the US context, such marriages remained unlawful in 17 states as recently as 1967 ( Loving v Virginia 388 United States Supreme Court Reports 1 (1967)). See P. Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America (New York: OUP, 2009).
  • 40
    G. Albrecht and J. Levy, ‘Constructing Disabilities as Social Problems’ in G. Albrecht (ed), Cross National Rehabilitation Policies: A Sociological Perspective (London: Sage, 1981) 14.
  • 41
    The ‘scientific’ study of race commenced in the mid-eighteenth century with Carl von Linneaus' taxonomic study of human beings in Systema Naturae published in 1735 (see M. J. Anderson, Carl Linnaeus: Father of Classification (United States: Enslow Publishers, 1997); W. Blunt, Linnaeus: the Compleat Naturalist (London: Frances Lincoln, 2001); A. Polaszek, Systema Naturae 250 – The Linnaean Ark (Boca Raton, Florida: CRC Press, 2010). The view that racial categories are socially constructed and lack a biological basis has been reinforced by the advent of DNA (J. Marks, Human Biodiversity: Genes, Race, & History (New York: Aldine de Gruyter, 1995)).
  • 42
    M. Foucault, The History of Sexuality: An Introduction (London: Penguin, R. Hurley trans, 1981); D. F. Greenberg, The Construction of Modern Homosexuality (Chicago, Illinois: Chicago University Press, 1988); J. Weeks, Against Nature: Essays on History, Sexuality and Identity (London: Rivers Oram, 1991).
  • 43
    J. Butler, Gender Trouble: Feminism and the Subversion of Identity (New York: Routledge, 1990); E. Sedgwick, The Epistemology of the Closet (New York: Penguin, 1990).
  • 44
    It should be recognised that ‘passing’ is controversial both as a practice and as an idea (see, for example, S. Stone, ‘The Empire Strikes Back: A Posttranssexual Manifesto’ in J. Epstein and K. Straub (eds), Body Guards: The Cultural Politics of Gender Ambiguity (London: Routledge, 1991) 280304; K. Bornstein, Gender Outlaw: On Men, Women, and the Rest of Us (New York: Routledge, 1994); L. Feinberg, Trans Liberation: Beyond Pink or Blue (Boston: Beacon Press, 1998)).
  • 45
    GRA, s 9(1).
  • 46
    The reason for the caveat is that contraction of a sexually transmitted disease and pregnancy occur within gender contexts. While these grounds for nullity (MCA, s 12(e) and (f)) do not depend on non-disclosure, disclosure will make application of the equitable bar more likely (s 13). In this sense, non-transgender people, and especially women, might be viewed as being incited by law to disclose facts that pertain to gender.
  • 47
    M. Rottnek, Sissies and Tomboys: Gender Nonconformity and Homosexual Childhood (New York: New York University Press, 1999); M. A. Abate, Tomboys: A Literary and Cultural History (Philadelphia: Temple University Press, 2009).
  • 48
    P v S and Cornwall County Council Case C-13/94 [1996] ECR 1–2143. This interpretation of the law has been confirmed and extended in later case law of the European Court of Justice. See, for example, Sarah Margaret Richards v Secretary of State for Work and Pensions Case C-423/04 [2006] ECR 1–3585.
  • 49
    It should be recognised that because legal recognition under the GRA does not depend on gender reassignment surgery, some transgender people choosing to marry will not be able to rely on Article 14. Accordingly, discrimination claims based on the gender history provision are likely to be more circumscribed than breach of privacy claims brought under Article 8.
  • 50
    See, for example, X and Y v the Netherlands [1985] 8 European Human Rights Reports 235 at [22]; Mikulic v Croatia [2002] 1 FCR 720 at [53]; Pretty v UK [2002] 35 European Human Rights Reports 1 at [66]; R (Wood) v Commissioner of Police of the Metropolis [2009] EWCA Civ 414 (Wood).
  • 51
    R (Wood) v Commissioner of Police of the Metropolis [2009] at [20].
  • 52
    Pretty v UK [2002] at [50] per Von Hannover J; at [66] per Marper J.
  • 53
    Pretty v UK [2002] at [66] per Marper J.
  • 54
    X and Y v the Netherlands [1985] 8 European Human Rights Reports 235 at [22]; Mikulic v Croatia [2002] 1 FCR 720 at [53]; Pretty v UK [2002] 35 European Human Rights Reports 1 at [66]; R (Wood) v Commissioner of Police of the Metropolis [2009]
  • 55
    Campbell v MGN Ltd [2004] 2 App Case Appeal Cases (Law reports) 457 at [51].
  • 56
    R. Williams, ‘Deception, Mistake and Vitiation of the Victim's Consent’ (2008) 124 Law Quarterly Review 132159, 149. The Law Commission have rejected such a conclusion and have noted its incompatibility with Article 8 of the European Convention on Human Rights (Law Commission, Consent in Sex Offences: A Policy Paper: Appendix C of Setting the Boundaries (London: Home Office, 2000,
  • 57
    X and Y v the Netherlands [1985] 8 European Human Rights Reports 235 at [22]; Mikulic v Croatia [2002] 1 FCR 720 at [53]; Pretty v UK [2002] 35 European Human Rights Reports 1 at [66]; R (Wood) v Commissioner of Police of the Metropolis [2009]
  • 58
    X and Y v the Netherlands [1985] 8 European Human Rights Reports 235 at [22]; Mikulic v Croatia [2002] 1 FCR 720 at [53]; Pretty v UK [2002] 35 European Human Rights Reports 1 at [66]; R (Wood) v Commissioner of Police of the Metropolis [2009]
  • 59
    GRA, s 22.
  • 60
    X and Y v the Netherlands [1985] 8 European Human Rights Reports 235 at [22]; Mikulic v Croatia [2002] 1 FCR 720 at [53]; Pretty v UK [2002] 35 European Human Rights Reports 1 at [66]; R (Wood) v Commissioner of Police of the Metropolis [2009]
  • 61
    (2002) 35 European Human Rights Reports 18 at [72].
  • 62
    The most recent available figures published by the Gender Recognition Panel are for August 2010. At this time 2,605 GRCs had been issued. For more information see the Gender Identity Research and Education Society website at http://www.gires.org.uk/grp.php (last visited 17 July 2011).
  • 63
    n 26, 27 and 30 above.
  • 64
    H. L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961).
  • 65
    J. S. Mill, On Liberty (London: Longman, 1998).
  • 66
    S. Wilkinson, ‘Why Lying is Worse than Merely Misleading’ (2000) 13 Philos Today 6–7.
  • 67
    R. Wasserstrom, ‘Privacy: Some Arguments and Assumptions’ in R. Bronaugh (ed), Philosophical Law (Westport, Conn: Greenwood Press, 1978); R. Posner, ‘The Right to Privacy’ (1978) 12 Georgia L Rev 393–422.
  • 68
    F. D. Schoeman, ‘Privacy and Intimate Information’ in F. D. Schoeman (ed), Philosophical Dimensions of Privacy: An Anthology (London: Cambridge University Press, 1984) 403, 409.
  • 69
    S. Bok, Secrets: On the Ethics of Concealment and Revelation (Vintage Books: London, 1998) 7.
  • 70
    S. Bok, Secrets: On the Ethics of Concealment and Revelation (Vintage Books: London, 1998) 18.
  • 71
    F. D. Schoeman, ‘Privacy and Intimate Information’ in F. D. Schoeman (ed), Philosophical Dimensions of Privacy: An Anthology (London: Cambridge University Press, 1984) 203; J. Rachels, ‘Why Privacy is Important’ in Schoeman (ed), S. Bok, Secrets: On the Ethics of Concealment and Revelation (Vintage Books: London, 1998) 290.
  • 72
    S. Bok, Secrets: On the Ethics of Concealment and Revelation (Vintage Books: London, 1998) 20.
  • 73
    S. Bok, Secrets: On the Ethics of Concealment and Revelation (Vintage Books: London, 1998) 13.
  • 74
    S. Bok, Secrets: On the Ethics of Concealment and Revelation (Vintage Books: London, 1998) 21.
  • 75
    S. Bok, Secrets: On the Ethics of Concealment and Revelation (Vintage Books: London, 1998) 27.
  • 76
    K. R. Berenson and S. M. Andersen, ‘Childhood Physical and Emotional Abuse by a Parent: Transference Effects in Adult Interpersonal Relationships’ (2006) 33 Pers Soc Psychol B 1509.
  • 77
    L. J. G Gooren, J. N. Zhou, M. A. Hofman and D. F. Swaab, ‘A Sex Difference in the Human Brain and its Relation to Transsexuality’ (1995) 378 Nature 6870; F. P. M. Kruijver, J. N. Zhou, C. W. Pool, M. A. Hofman, L. J. G. Gooren and D.F. Swaab, ‘Male-To-Female Transsexuals have Female Neuron Numbers in a Limbic Nucleus’ (2000) 85 J Clin Endocr Metab 20342041; M. M. McCarthy, J. M. Schwarz, C. L. Wright and S. L. Dean, ‘Mechanisms Mediating Oestradiol Modulation of the Developing Brain’ (2008) 20 J Neuroendocrinol 777783; E. Govier, M. Diamond, C. Slade and T. Wolowiec, ‘Dichotic Listening, Handedness, Brain Organization and Transsexuality’ (2010) 12 Intl J Transgenderism 144154).