Bellinger v Bellinger
The courts made a declaration of incompatibility rather than interpreting the law to recognise the marriage of a transgender woman, because the issue required Parliament's attention.
Facts
Mrs Bellinger was born male but had undergone gender reassignment surgery and lived as a woman. In 1981 she married Mr Bellinger, who knew of her history. Under section 11(c) of the Matrimonial Causes Act 1973, a marriage was void unless the parties were respectively male and female, and the courts had held in Corbett v Corbett that sex was fixed at birth. Mrs Bellinger sought a declaration that her marriage was valid. The European Court of Human Rights had recently held, in Goodwin v United Kingdom (2002), that the UK's failure to recognise the acquired gender of transgender people breached articles 8 and 12 of the Convention.
Legal principle
The House of Lords refused to declare the marriage valid, and instead made a declaration under section 4 of the Human Rights Act 1998 that section 11(c) was incompatible with articles 8 and 12. Lord Nicholls said that recognising Mrs Bellinger as a woman for the purposes of marriage would be a major change in the law, with far reaching ramifications, raising issues that were best dealt with by Parliament after consultation and debate, and that the government had already announced that it would legislate. Parliament passed the Gender Recognition Act 2004.
Related cases on Human Rights Act 1998
- A v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68
- Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2003] UKHL 37, [2004] 1 AC 546
- Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557
- Hirst v United Kingdom (No 2) (2006) 42 EHRR 41
- Manchester City Council v Pinnock [2010] UKSC 45, [2011] 2 AC 104
- R (AB) v Secretary of State for Justice [2021] UKSC 28
- R (Al-Skeini) v Secretary of State for Defence [2007] UKHL 26, [2008] 1 AC 153
- R (Begum) v Headteacher and Governors of Denbigh High School [2006] UKHL 15, [2007] 1 AC 100
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