The first issue: general retrospective
effect in relation to marriages
38. The first issue relates to the general treatment
of couples who are in the situation of Mr and Mrs Bellinger, with
one party being a male-to-female transsexual and the other being
a male for the purpose of section 11(c) of the Matrimonial Causes
Act 1973, or where one party is a female-to-male transsexual and
the other party is a female. Can it be right to refuse to recognise
the validity of their marriages if, at the time they went through
the wedding ceremony, the transsexual party was well settled in
his or her reassigned gender and would have satisfied the requirements
for recognition of the acquired gender had clause 1(4) of the
Draft Bill been in force?
39. We have engaged in some correspondence with the
Department of Constitutional Affairs on this issue. We would summarise
the Department's position as follows.
a) The European Court of Human Rights in Goodwin
v. United Kingdom and I. v. United Kingdom made it
clear that their judgment operated only prospectively. It had
previously been held that English law did not violate Convention
rights, and the judgment in the most recent cases did not cast
doubt on the correctness of the earlier judgments at the time
when they were given. The House of Lords in Bellinger v. Bellinger
(Lord Chancellor intervening) held that a marriage between
parties in the position of Mr. and Mrs. Bellinger was void in
English law, although their Lordships declared that the relevant
legislation was incompatible with Convention rights.[15]
The marriages were therefore void at the time they were entered
into.
b) The Government does not wish to change retrospectively
the legal status of the parties to such marriages, because:
i) such a change could affect rights and obligations
acquired over a long period (including pension and social security
entitlements and tax liabilities) and require decisions on those
matters to be reopened;
ii) it might be very difficult to establish now
whether a person would have met the requirements of clause 1(4)
of the Draft Bill many years ago; and
iii) retrospectively validating marriages which
were originally void in these cases would create a position where
people legally regarded as having been of the same sex are to
be treated as legally married, whereas the Government does not
consider that it would be appropriate to equate same-sex relationships
to marriage.
40. We accept the correctness of point a) as a matter
of law. We also accept that the problems referred to in b) i)
might arise, unless the legislation makes it clear that the change
in status is not to have any such consequences. On the other hand,
we do not consider that considerations b) ii) and iii) have much
weight. In relation to b) ii), a person seeking to establish that
he or she would have met the requirements of clause 1(4) of the
Draft Bill ten or twenty years ago would have to provide medical
evidence, as required by clause 2. If his or her medical advisers
at that time kept adequate medical notes, and the notes are still
available, it should now be possible to make a satisfactory assessment
of the person's condition at that time. Of course the notes might
no longer be available, or might be insufficiently detailed for
the purpose, but we do not consider that people who can establish
their condition at a particular time in the past should be prevented
from having their marriages recognised merely because other people
might not be able to provide similar evidence.
41. In relation to b) iii), we do agree that recognising
those marriages would have the effect of giving the legal status
of marriage to same-sex relationships. If the law recognises a
transsexual person's acquired gender retrospectively, either generally
or for the purpose of marriage only, it follows that the marriage
in question will have to be regarded as having been a mixed-sex
marriage in law. For example, if the law recognises that Mrs.
Bellinger, a male-to-female transsexual person, was female in
1981 when she married Mr. Bellinger (at least for the purpose
of the Matrimonial Causes Act 1973, s. 11(c)), the marriage must
logically be regarded as having been between a man and a woman.
42. On balance, we are not convinced that the
difficulties which influence the Government's approach are insuperable,
or that the suggestion that some retrospective effect for recognition
of acquired gender would lead to same-sex marriage being legally
recognised is correct. We recommend that the Government should
give further thought to the possibility of giving retrospective
recognition to a person's acquired gender from the date at which
the person can show that he or she would have satisfied the requirements
of clause 1(4) of the Bill had it been in force, at least for
the purpose of deciding whether a marriage was void when entered
into after that date.
43. We consider that this applies even more strongly
to anyone who has entered into a ceremony of marriage since 11
July 2002 when the European Court of Human Rights gave judgment
in Goodwin v. United Kingdom and I. v. United Kingdom. Since then,
it has been well established that the UK has been in breach of
international law by refusing to recognise the acquired gender
for the purpose of marriage. There seems to us to be a particularly
strong case for providing in the legislation for retrospective
recognition of the acquired gender of a transsexual party to these
marriages, and thus for the validity of the marriages themselves.
We recommend that the legislation should include such provision.
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