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Transgender Marriage and the Legal Obligation to Disclose Gender History
Author(s) -
Sharpe Alex
Publication year - 2012
Publication title -
the modern law review
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.37
H-Index - 22
eISSN - 1468-2230
pISSN - 0026-7961
DOI - 10.1111/j.1468-2230.2011.00887.x
Subject(s) - transgender , law , obligation , ceremony , consistency (knowledge bases) , political science , sociology , gender studies , history , geometry , mathematics , archaeology
Section 12 of the M atrimonial C auses A ct 1973 as amended by the G ender R ecognition A ct 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 A rticles 14 and 8 of the E uropean C onvention on H uman R ights. 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.