Crossing and Not Crossing: Gender, Sexualityand Melancholy in the European Court of Human Rights Christine Goodwin v. United Kingdom (Application no. 28957/95) [2002] I.R.L.R. 664,[2002] 2 F.L.R. 487, [2002] 2 F.C.R. 577,(2002) 35 E.H.R.R. 18, 13 B.H.R.C. 120, (2002)67 B.M.L.R. 199, I v. United K... (original) (raw)
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This article considers a recent decision of the Family Court of Australia that recognises the sex claims of a transsexual man for the purposes of marriage. The decision is to be welcomed not only for extending reform to the arena of marriage but also, and specifically, because it recognises as male, for the first time, a vaginaed man. However, this moment of reform needs to be treated with some caution. In the first place the 'radicality' of the decision never fully materialises in the judgment. More significantly, recognition of sex claims proves contingent on factors not previously considered relevant in reform jurisprudence, namely (bio)logic and the social and cultural. The introduction of these factors raises questions concerning the autonomy of transgender people and the future of transgender law reform. 1 Re Kevin and Jennifer v Attorney-General for the Commonwealth [2001] FamCA 1074. The decision was appealed to the Full Bench of the Family Court of Australia. At the time of writing their is still awaited. 2 R v Harris and McGuiness [1989] 17 NSWLR 158; Secretary, Department of Social Security v HH [1991] 23 ALD 58; Secretary, Department of Social Security v SRA [1992] 28 ALD 361. 3 It should be noted that the validity of a marriage involving an intersexed person was considered by in Re the Marriage of C v D (falsely called C) [1979] 35 FLR 340. In this much criticised decision Bell J held that Mr C was neither a man nor a woman for the purposes of marriage thereby precluding his ability to marry anyone. For criticism of the decision see Bailey-Harris (
Feminist Legal Studies, 2005
U.K. regulation of sexual identity within a marriage context has traditionally been linked to biological sex. In response to the European Court of Human Rights decisions in Goodwin and I.,2 and in order to address the question of whether a transsexual person can be treated as a “real” member of their adoptive sex, the U.K. has recently passed the Gender Recognition Act 2004. While the Act appears to signal a move away from biology and towards a conception of sexual identity based on gender rather than sex, questions of sexual identity remain rooted in medico-legal assessments of the individual transsexual body/mind. In contrast, because transsexual people in some parts of Canada have been able to marry in their post-operative sex since 1990, contemporary debates on the sexual identity of transsexual people in British Columbia and Ontario do not focus on the validity of marriage, and more frequently centre upon the provision of goods and services, in human rights contexts where sex is said to matter. Currently in Canada this is prompting questions of what it means to be a woman in society, how the law should interpret sex and gender, and how, if at all, the parameters of sexual identity should be established in law. This article seeks to compare recent U.K. legal conceptualisations of transsexuality with Canadian law in this area. As human rights discourse begins to grow in the U.K., the question remains as to whether or not gender will become an adequate substitute for sex.
This article will provide a critique of two recent English marriage law decisions, the first concerning a female to male transgender person and the second an intersexed person. It will do so through consideration of the dialogue between each and the landmark transgender case of Corbett v Corbett. It will highlight how both decisions, in seeking to minimise the fact of 'departure' from Corbett, serve to reproduce key elements of that decision which serve to undermine the future prospects for transgender law reform in the English context. In particular, both decisions, in different ways, or with different emphases, ensure that 'legal sex' continues to be determined by (bio)logical and temporal factors. Crucially, however, as in Corbett, it is legal anxiety over the boundaries of the 'natural', and the homophobia of law that underscores this anxiety, that account for these particular constructions of 'legal sex'. This article will provide a critique of judicial (re)constructions of sex in the context of two recent English marriage law decisions, S-T (formerly J) v J 1 and W v W. 2 The first case, involved J, a female to male pre-operative transgender person, and the second W, a male to female intersexed person. It should be emphasised from the outset however that distinguishing between transgender and intersex cannot be reduced to a purely descriptive act. While it proved critical in the case of W, the distinction, as we shall see, proves to be an effect of medico-legal constructions of (bio)logical sex and judicial concerns over demarcating the realm of the 'natural'. The distinction is also misleading in that it belies the capacity of the term transgender, and a developing transgender politics, to include 1
Transgender-Specific Politics and Policy in Europe
2020
Transidentity raises numerous legal questions as it challenges the way the law fundamentally categorizes society in two different groups. The European legal landscape has evolved towards greater recognition of transgender people’s rights, notably in terms of legal gender recognition and non-discrimination, but many inequalities remain deeply rooted in the law. Gender identity has increasingly been recognized as a ground of discrimination by national and regional instances in Europe, and in 2002 the European Court of Human Rights acknowledged the existence of a right to legal gender recognition under Article 8 of the Convention, in the famous Goodwin v. UK case. Since then, the conditions deemed admissible or not in order to access legal gender recognition and name change have been under scrutiny, and the Court took an important step ahead in 2017, when it held that compulsory sterilization and mandatory medical interventions leading with a high probability to sterility were inadmiss...
A critique of the legal recognition of transsexuals in UK law
2016
The Gender Recognition Act 2004 has been hailed as radical 1 and groundbreaking 2 legislation and it can clearly be considered to be a successful piece of legislation because between coming into force on 4 April 2005 and the third quarter of financial year 2013/14 it provided full legal recognition of one's gender identity to 3,664 individuals and interim recognition to 173 individuals; only 180 applications had been refused and 93 applications have been withdrawn. 3 So clearly the law is doing what it was intended to do. However the legislation is not without its problems and it is far from perfect. This thesis argues that the UK Government, when enacting the legislation, adopted the medical model of transsexualism as understood within medicine in 2003/04 which resulted in the legislation enacting strong gatekeeper roles for medical professionals and the Gender Recognition Panel which means that it is difficult for one to obtain legal recognition of one's gender identity under UK law. The thesis proposes that an alternative model of legal recognition based on gender self-declaration is possible and would achieve the same outcome but with less difficulties for the individual.
2004
HOMOSEXUALITY AND THE EUROPEAN COURT OF HUMAN RIGHTS: RECENT JUDGMENTS AGAINST THE UNITED KINGDOM AND THEIR IMPACT ON OTHER SIGNATORIES TO THE EUROPEAN CONVENTION ON HUMAN RIGHTS Sameera Dalvi * I. II. III. I NTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 468 T HE G ENESIS OF THE E UROPEAN C OURT OF H UMAN R IGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 470 T HE R EACH OF THE J UDGMENTS OF THE E UROPEAN C OURT OF H UMAN R IGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 474 A. Status of the Convention in Domestic Law . . . . . . . . . . . 476 B. Margin of Appreciation . . . . . . . . . . . . . . . . . . . . . . . . . 477 C. Reservations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 477 D. The Social System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 479 T WIN D ECISIONS A GAINST THE U NITED K INGDOM BY THE E UROPEAN C OURT OF H UMAN R IGHTS IN N OVEMBER 1999 . . . . . ...
Beyond Sexual Binaries? The German Federal Constitutional Court and the Rights of Intersex People
Potchefstroom Electronic Law Journal, 2018
In a recent judgment, the German Federal Constitutional Court held that it was unconstitutional to require every person's sex to be entered on the birth register, without providing for a third option for intersex persons. This article examines the intersex judgment in view of the Court's earlier jurisprudence on the rights of trans persons. It argues that this judgment was enabled, to a significant extent, by the fluid understanding of sex and gender identity shown in those judgments, and by the elaboration in those cases of the relationship between sexual freedom, human dignity and equality. It also comments on the possible relevance of the intersex judgment for South Africa, in view of some of the parallels and differences between German and South African constitutional jurisprudence.