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“The right to marry is a fundamental human right which should be available to all irrespective of gender either natural or chosen”. Free essay! Download now

Home > A Level > Sociology > “The right to marry is a fundamental human right which should be available to all irrespective of gender either natural or chosen”.

“The right to marry is a fundamental human right which should be available to all irrespective of gender either natural or chosen”.

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Downloads to date: N/A | Words: 2150 | Submitted: 06-Jun-2010
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“The right to marry is a fundamental human right which should be available to all irrespective of gender either natural or chosen”.

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“The right to marry is a fundamental human right which should be available to all irrespective of gender either natural or chosen”.

To a large extent I agree with the above statement, however it poses a number complications for those with a “chosen” gender, as oppose to “natural”. The law in England and Wales does not provide for all at present, even though I will go on to examine the impact of the European Convention on Human Rights (ECHR) upon this area.

In English law, marriage is defined as “a voluntary union for life of one man and one woman to the exclusion of all others”.
S. 12 Matrimonial Causes Act 1973 (MCA) oversees the voluntary aspect and provides for voidability, and really “for life” in this present day means until either party dies or brings proceedings for divorce – rather than actually meaning what it says.

The problems really arise for the availability of marriage to everyone when referring to “one man and one woman”. This applies only to heterosexuals contracting a marriage, and excludes transsexuals. S.11 MCA exhaustively lists circumstances in English law in which a marriage is void, and also gives the requirements for a valid marriage.

S.11(c) MCA states that parties of the same gender, or transsexuals cannot marry, and a marriage is void if the contracting parties are not respectively male and female.
The case of CORBETT in 1970, is still considered good and valid law in England and Wales, however, it has been said that this breaches Article 12 ECHR. This provides that men and women of marriageable age have the right to marry and found a family according to the national laws governing the exercise of this right
The result of a case like CORBETT is to deny marriage to certain persons, and I will go on to examine those restrictions.


Firstly I would like to examine the current recognition of the status of transsexuals and reasons why their right to marry is denied, be it right or wrong. I believe they should, if not merely for the reason that just as I enjoy the right to contract a marriage, so should everyone else who feels they are in a stable relationship where they want this commitment.

The actual lack of legal recognition of a persons change of gender, does deny them the right to marry, and Convention case law at present does not change this.
The capacity to marry depends upon the sex of the parties at birth NOT at the time of the marriage. In REES and COSSEY, both cases that went to the European Court of Human Rights, the Court held that Article 12 was not applicable to unions with a transsexual partner. However it was held in XYZ v UK that this union was capable of being family life under Article 8.


Existing Convention case law on Article 12 refers to the traditional marriage between parties of the opposite biological sex, - its main object is to protect marriage as the basis of a family. Therefore transsexuals arguments as yet have proved unsuccessful that they should be entitled to marry. However case law is moving towards greater recognition of the rights of transsexuals which will be illustrated in the below mentioned cases.


The position that many transsexuals find themselves in is being unable to get their current “sex” legally recognised as birth certificates cannot be changed, however other documentation can reflect this, like passports for example.
In certain situations they must declare their biological sex (i.e. court proceedings, police records) and most cases transsexuals bring to Court include alleged breaches of Article 8 – respect for private life, (footnote), Article 12 – right to marry, Article 14 – prohibition of discrimination.
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