Transgender Flashcards
<p>Corbett v Corbett 1970</p>
Before transgender act.
Common Law position- legal gender is determined on purely biological criteria. It continues to apply if the GRC is not obtained.
Ormrod held:
transgender surgery is not enough. Trans people remained legally in their birth gender. Ormrod created a medical ‘test’. Ormrod set out the medical test criteria for determining ‘sex’:
(i) Chromosomal factors;
(ii) Gonadal factors (i.e. presence or absence of testes or ovaries);
(iii) Genital factors (including internal sex organs);
The law should adopt the chromosomal, gonadal and genital tests. If all three are congruent, that should determine a person’s sex for the purpose of marriage. Any operative intervention should be ignored. The biological sexual constitution of an individual is fixed at birth, at the latest, and cannot be changed either by the natural development of organs of the opposite sex or by medical or surgical means.
Ormrod said: “biological sexual constitution of an individual is fixed at birth (at the latest)”. He later went on to say that the only cases where the term ‘change of sex’ is appropriate are those in which a mistake as to sex is made at birth and subsequently revealed by further medical investigation.’
Ormrod said OBITER that male-to-female transgender person with an artificially constructed vagina was incapable of consummating.
However, courts may not take the same view since the GRA 2004. In W v W (Physical inter-sex) charles distinguished corbett in holding that an intersexual person who had had surgery was not necessarily incapable of consummating.
By choosing only biologicial indicators to determine sex
Hyde v Hyde: union of one man and one woman: this has changed now since the 2013 same sex marriage act. Therefore, the ‘union’ has to be interpreted in modern day understanding of union.
Ormrod said that woman must have genitals, thus implying her vagina penetrated is an essential role of woman.
<p>Baxter v Baxter 1948 HL</p>
<p>Consummation
| Use of contraceptives does not prevent the marriage from being consummated. </p>
<p>The Marriage (Same Sex Couples) Act
What date was this introduced
</p>
<p>2013</p>
<p>Goodwin v UK (2002) ECHR
| </p>
<p>In Goodwin v United Kingdom (2002) the Strasbourg Court held that this inability of the English law to recognise and give effect to a change of gender through gender re-assignment surgery was a violation of a person's Article 8 rights. He was not allowed to get married.
Following ECHR ruling on the UK's previous refusal to recognise preferred gender, this case led to the GRA.
Lead to the Gender Recognition act
Court acknowledged the increase in knowledge in science and medicine. Court found under article 8 that a test of biological factors can no longer be decisive in denying legal recognition to the change of gender of a post-opt transsexual.
</p>
<p>I v UK </p>
<p>I was born as a male, got married as a young man, had kids. Left his wife, began to live as a female. In 1990 he had gender reassignment surgery, now living as a woman. Felt discriminated against – had a National Insurance number as a male which made her retirement age 64 (rather than 60 for a female). Wanted new number. Also wanted the right to marry as a woman. Breach of art 8, 12, both taken together with art 14. Successful in both of those arguments.
Lead to the Gender Recognition act </p>
<p>Bellinger v Bellinger 2003 HOL</p>
<p>Mrs Bellinger was born male, had gender reassignment surgery and then conned a registrar somewhere to marry her with a man (this shouldn’t have been allowed to happen, a birth certificate should have been shown). She went to court actively seeking a declaration that the marriage was valid as a matter of English law. HoL recognised what happened in Goodwin, but it couldn’t rewrite English law – marriage still had to be between a man and woman (biologically). Issued a declaration of incompatibility.
</p>
makes provision for an adult person to be legally ‘recognised’ in an ‘acquired’ gender identity, as long as the following requirements are met.
Implements Goodwin
What about transgenders before the 2004 GRA?
there was no mechanism at all to recognise an acquired gender identity.
<p>Bellinger v Bellinger HOL 2003</p>
<p>Prior to the GRA it was impossible for a person who had acquired a different gender to obtain the legal rights associated with the acquired gender.
So prior to the GRA it was necessary to take a person's gender as assigned at birth to determine that person's gender </p>
<p>What happens to those who do not get a GRC?</p>
<p>Corbett v Corbett applies.</p>
<p>Burden v UK 2008 July [2008] </p>
<p>2 sisters, they are both elderly ladies and still live in parents’ home, they inherited house, they are concerned about inheritance tax. When one dies, the other has to buy the house. However, if they were in a civil partnership they would not have to pay inheritance tax, therefore they go to court asking for a civil partnership, in a civil partnership there is no requirement for sex unlike in marriage. Held: people who are related to each other cannot form civil relationships so no discrimination. Moreover, Burden sisters were not the typical civil partners.
</p>
<p>Hudson v Leigh [2009] EWHC </p>
HC case,Woman who was Christian planned to marry an atheist Jew, she wanted a religious marriage and he didn’t, they compromised a south Africa holiday where they had a religious service and then have civil. Minister was aware of this, left out “if couple had any lawful impediments to the marriage, made no reference to husband and wife and being lawfully married”.
Neither parties, nor celebrant believed that it would be legally binding. Held: non marriage.
Bodey emphasised that it should be based on case by case basis.
Judge Bodey, said there are 4 things to consider with a problematic marriage:
1) Did the ceremony itself purport to be a lawful marriage. (Clarified in El Gamel v Al Maktoum that he was referring to a lawful marriage under english law)
2) Did it bear all or enough hallmarks of the marriage?
3) Did the 3 key participants (most especially the officiating official) believed, intended and understood that the ceremony as giving rise to the status of a lawful marriage? (2 spouses and person presiding)
4) The reasonable perceptions, understandings and beliefs of the people in attendance.
Judge Bodey gave example: if a couple wanted to marry and did a dress rehearsal where vicar was present and used full wording of service and there was music, bridesmaids etc but with it being known that the occasion was not the real thing, this would be a non marriage.
<p>Where to find formalities for civil partnerships?</p>
<p>Ch 1 of Part 4 CPA 2004.</p>
<p>What happens if you do not comply with formalities?</p>
<p>The Marriage Act 1949 is silent about the effects of failing to comply with some formalities. Failure to comply with formalities means a void marriage or CP if the parties “knowing and wilful disregard” of fact that they are failing to comply with the requirement.
</p>
<p>Similarity between void and voidable marriages. </p>
<p>The important similarity between void and voidable marriages is that in either case the petitioner may invoke the powers of the court to make orders for income and property matters and for the custody of any children: MCA 1973 ss.21(1),42(10).</p>
<p>Does there have to be a decree nullity for void marriages?</p>
<p>There does not have to be a decree for void marriages.</p>
<p>Where is void marriages laid out?</p>
<p>section 11 Matrimonial causes act 1973</p>
<p>Where is voidable marriages laid out</p>
<p>Section 12 Matrimonial causes act</p>
<p>Requirements to make a void marriage.</p>
<p>1) Falls within the prohibited degree of relationship
2) Either party is under 16 years old
3) the parties have intermarried in disregard of certain requirements to the formation of marriage
4) one or both of the parties to the marriage was already lawfully married or a civil partner
5) In case of polygamous marriage entered into outside England that either party was at the time of the marriage domiciled in England.
</p>
<p>Requirements to make a voidable marriage : Section 12 </p>
<p>1) Lack of valid consent by either party
2) Either party suffering from mental disorder rendering 'unfit' for marriage
3) Respondent pregnant by a third party at time of marriage
4) Grounds relating to gender recognition
5) Respondent had venereal disease at time of marriage
6) Grounds relating to non-consumatin (Opposition sex marriage only - no equiv for same sex marriage s12(2).
</p>
<p>Requirements to make a voidable civil partnership : Section 50
CPA 2004</p>
1) Lack of consent
2) Either party suffering from mental disorder
3) Respondent pregnant by third party at time of CP
4) Grounds relating to gender recognition.
<p>D-E v A-G (1845) ecclesiastical court</p>
Sexual intercourse is: “ordinary and complete intercourse; it does not mean partial and imperfect intercourse”.
per Lushington
Contrasted with rape and adultery where sexual intercourse occurs where the penis makes the slightest penetration of the vagina.
The wife could not physically consummate.
<p>Baxter v Baxter (1948)</p>
<p>Contraception now does not stop one from consummating a marriage (HOL have said)
</p>
<p>Grimes v Grimes </p>
<p>Mr Grimes (practise Coitus interruptus) removed penis from vagina before ejaculating, wife wanted children so sued for nullity. Held: granted by High Court practising Coitus interruptus amounted to a wilful refusal to consummate, as this was not intercourse to give proper satisfaction to a woman.
</p>
<p>White v White </p>
<p>High Court case - Two days later from Grimes, opposition conclusion, consummation still occurred, however, if you keep doing it, then it is grounds for divorce as cruelty to the wife.
</p>
<p>Cackett v Cackett </p>
<p>High court case so no authoritative ruling, approved the White v White case.
H pulled out before ejaculation, though not void because they consummated, but granted divorce because of cruelty. </p>
<p>Clarke v Clarke </p>
<p>HL allowed condoms underlining that procreation need not be intended, this point was driven home in Clarke v Clarke.
despite wife conceiving a child by a rogue, persistent sperm, the marriage was nevertheless unconsummated for want of actual intercourse. </p>
<p>R v R </p>
<p>Achieved erection, so penetrated wife but unable to ejaculate. Wife wanted nullity because he wouldn’t make her pregnant. Held: ejaculation isn’t a valid requirement for consummation following Baxter.
</p>
<p>W v W </p>
<p>W was able to penetrate wife but the erection collapsed every time.
Held: did not count as consummation, no need for orgasm there has to have intercourse for a reasonable amount of time and on the facts of the case, this was not so.
Brandon J – “penetration, maintained for so short a time, resulting in no emission either inside the wide or outside her, cannot without violation of language be described as ordinary and complete intercourse”.
</p>
<p>Does a transgender need to consumate?</p>
<p>No need for consummation in civil partnerships. No one knows if a transgender needs to consummate the marriage. Baxter might still be the case, if so transgender will never be able to consummate for following reasons above, this seems inhumane and unlikely.
</p>
<p>Restriction of marriage</p>
<p>Under Marriage Act 1949 section 1(2) a married between a person mentioned in a list in part 2 of schedule 1 shall be void.
1(3) any marriage under section 1(2) shall not be void if the parties have reached 21 years at time of marriage and the younger party has not been a child of the family.</p>
<p>Which and where act constitutes void marriages?</p>
<p>Matrimonial act 1973 Section 12.
1) the parties with the prohibited degrees of relationship
2) either party is under 16
3) the parties have intermarried in disregard of certain requirements as to the formation of marriage.
4) At time of marriage either party was already lawfully married or a civil partner
5) polygamous marriage entered into outside England, that either party was at the time of the marriage domiciled in England. </p>
<p>Where does it state all the prohibited relationships?</p>
CPA, Schedule 1, section 2(2)
<p>ACA 2002, s74</p>
Marriage between adoptive parent and child is absolutely barred, even though sexual activity between them, once both are adult is permitted.
<p>B and L v UK </p>
Both divorced, farther and daughter in law wanted to marry but were barred until both ex spouses died or unless they invoked an expensive procedure with no precedent to obtain a personal Act of Parliament permitting the marriage.
ECHR Held: the restrictions were a breach under article 12. Moreover, they did not like the law because the bar on marriage does not prevent the relationships occurring. There is no incest or criminal law for parents in law and children in law. And unimpressed that the private Act of Parliament has enabled some parties to marry.
The in-law restriction was repealed from Schedule 1. There is now no age limit either.
You can now marry your spouces parent. Or your childs ex wife.
<p>Stubing v Germany </p>
<p>When reunited with birth family, he fell in love with his birth sister and had children, they married. Held: unlawful under law, he challenged this arguing that he had not grown up together. Held: doesn’t matter, still incest. Family even if you never live together
</p>
<p>Marriages under the age of 16 are void.
Section</p>
<p>Marriage Act 1949
Section 2</p>
<p>Pugh v Pugh [1951]</p>
<p>wife below the age of 16 was valid because it was marriage age in that country was below 16.
</p>
<p>Alhaji Mohamed v Knott</p>
<p>No crime was committed, where a man has sex with a girl under 16 if that girl is his wife.
</p>
<p>Offences Against the Person Act 1861, s. 57
| </p>
<p>Whosoever, being married, shall marry any other person during the life of the former husband or wife, whether the second marriage shall have taken place in England or Ireland or elsewhere, shall be guilty of felony, and being convicted thereof </p>
<p>Baindail v Baindail </p>
<p>Involved English woman who married an indian man in india, she later discovered that he was already married, she petitioned and was successful. Held: as she was a UK citizen it was not a valid marriage.
</p>
<p>Mohammed v Knott </p>
<p>Unless strong reason to contray, UK doesn’t have a massive problem to polymamous marriages as long as it doesn’t involve UK citizens.
</p>
<p>Bibi v Chief Immigration Officer </p>
<p>Married husband in Bangladesh, they were both Bangladesh citizens. Husband then married a second time. Family then moved to UK, until husband’s death, the wife sought a widows pension. Held: couldn’t receive this pension because there was another recognised wife and against public policy to hand out two widow pensions.
</p>
<p>The consummation requirement does not apply to civil partners</p>
<p>Sch 4, para 4, Marriage act 2013</p>
<p>Grounds on which are CP is void</p>
<p>CPA 2004 section 50</p>
<p>SY v SY </p>
<p>Wife had a physical disability that her vagina “in the form of a coldersack”, no uterus so husband was unable to penetrate.
Held: Incapacity must be permanent and unfixable, as this was not the case, as she was willing to get surgery, here the husband did not get his nullity. Whether any sexual satisfaction is obtained is irrelevant to the legal perfection of intercourse
</p>
<p>W v W </p>
<p>Collapsing erection case straight away when got erection. Held unable to consummate, ejaculation not required but erection of some endurance is.
</p>
<p>G v G
| HL</p>
<p>Spouse can have an “invincible impugnance” when engaging with sexual intercourse. Held: unable to consummate with husband.
It must "paralyse her will power to carry out what she had promised" It cannot be due to her unwillingness.
HOL
</p>
<p>Singh v Singh
| CA</p>
<p>Wife argued G v G applied to her, wife had psychological condition. Courts decided that her not wanting to have sex with husband was a preference rather than a psychological condition. This amounted to wilful refusal and a wife cannot rely on her own willful refusal, need medical evidence.
For invincible impugnance there must be some sexual or physical aversion. </p>
<p>W v W (Nullity: Gender) [2001] </p>
<p>Intersex person, person born with ambiguous genitals. Whatever decision made for intersex person, boy or girl, you can still consummate the marriage.
Following Ormrod in Corbet - where genetialia is ambiguous at birth and sex operation fixes the problem, the law will declare that to be the gender, even if the gonods and chromosomes are different. Ormrod said: "the greater weight would probably be given to the genital criteria than to the other two. "
</p>
<p>Sheffield City Council v E </p>
<p>Capacity to understand that you are getting married and there is knowledge of the rights and duties that marriage has. E fails capacity case.
</p>
Re SA (Vulnerable Adult with Capacity: Marriage)
Woman suffers from being deaf, she has behavioral problems, she was in an arranged marriage which meant she would have to move to Pakistan. Local services tried to stop this marriage by arguing that she lacked the capacity to understand marriage and the rights and obligations on the parties. However, they found that she wouldn’t understand this specific marriage, that she would have to move to Pakistan. Held: prohibiting her leaving the country, held, she had the capacity but she was venerable. Inherent jurisdiction of the court was found here.
<p>Westminster City Council v C [2008] EWCA</p>
<p>– C a man with autism and learning difficulties, parents arranged for him to marry a Bangladesh woman, the marriage took place over the phone. Held: valid marriage, marriage valid in Bangladesh because they had no capacity law, had marriage taken place in UK, there would be no marriage because he lacked capacity. Held: void marriage. There was an appeal which held that the marriage was a voidable marriage, courts should have said on public policy grounds they would override this voidable marriage statement and treat it as void.
</p>
Horton v Horton
HL
Wilful refusal to consummate definition - “a settled and definite decision come to without just excuse” in light of the context of the marriage.
Here consummation was delayed by war and unsuccessful attempt was made. Court acknowledged that in the “false start” cases, one or both parties would frequently be reluctant and hesitant to try again, and as wife was anxious to resolve the problem, she could not be said to be wilfully refusing.
<p>Ford v Ford </p>
<p>H and W had a sexual relationship until H was sent to prison. They married while he was in prison, but he refused to consummate the marriage at the time and later said he did not want to live with W even after he was released. W's petition for a decree of nullity was allowed: H's refusal to consummate the marriage in prison was not a "wilful refusal", but his clear determination never to do so was sufficient.
Sex before marriage does not count
</p>
<p>Potter v Potter (1975)
CA</p>
<p>H and W married, found W was physically unable to consummate the marriage. W underwent surgery and they tried again, but were prevented by W's emotional state. H then declined to try further and W petitioned for annulment on the grounds of H's wilful refusal. The judge dismissed the petition and W's appeal also failed: H's refusal was the result of his loss of sexual ardour rather than a deliberate decision.
Natural loss of ardour should not be equated with wilful refusual</p>
