Flashcards in Same Sex Partners and Transsexuals Deck (20)
Fitzpatrick v Sterling Housing Association
A homosexual couple lived together, upon the death of one of the partners, the other wished to inherit the property. The claim to inherit as a spouse failed. However, the meaning of ‘member of a family’ could include a same sex partner who had been involved in an established monogamous relationship.
Ghaidan v Mendoza
factually similar to Fitzpatrick: CA overruled the HL as homosexual couples should be afforded the same rights as a married couple, to not do so would be a breach of Art 8 ECHR
Karner v Austria
found Fitzpatrick to have breached Art 8 in conjunction with Art 14
What does the CPA 2004 do
creates an institution which affords the same rights as marriage without the religious basis, although technically not a marriage. There is no religious ceremony S 2(5), although can be in religious premise S 2(6).
What did the Marriage (Same Sex Couples) Act do
Extension of marriage to same sex couples: S. 1(1) ‘Marriage of same sex couples is lawful’.
What does Sch 4, para 3(6) do
states that adultery may only be committed by opposite sex couples’
What does Sch 4, para 4 state
amends the requirement of consummation of marriage, there is not the same requirement for consummation on same sex couples as there is for opposite sex couples.
What did Goodwin v UK (transsexual)
Corbett was in breach of both Art 8 and 12. On Art 8 held that a failure to maintain a dynamic and evolutive approach would risk rendering no improvement and on Art 12 said there was no justification to bar the right to marry
What did the GRA provide
which provides for a procedure where by individuals can obtain full legal recognition in their preferred gender.
Bellinger v Bellinger
after undergoing gender reassignment a female marries a male, then later seeks a declaration that the marriage is valid. The HL find there is no other way to apply the law other than the approach in Corbett. However, after Goodwin, this would no longer be considered good law.
Under the GRA is there any requirement that individuals undergo confirmation surgery
No, but formal diagnosis of ‘gender dysphoria’ must be made.
What are the requirements listed in S.1(1)
The individual must be at least 18 years of age, ‘living in the other gender (s.1(1)(a)’, and who ‘has or has had gender dysphoria’ and ‘has lived in the acquired gender throughout the period of two years ending with the sate on which the application is made’ and ‘intends to continue to live in the acquired gender until death (s.2(1))’
What section discusses what must be included in the application
S 2(d) refers to s.3, which requires an application made under s.1 to include 2 medical reports, one of which must be made by a doctor of chartered pyscholigst with expertise in gender dysphoria s.3(1) and must include the diagnosis of gender dysphoria.
R (JK) v Registrar General for England and Wales
biological father wished to be recognised as the mother of his child after gaining GRC. Although a breach of Art 8 was found, is was a justifiable breach under Art 8(2) as each child has a right to an accurate record
R and F v UK
A person already married in his or her birth sex would not be fully recognised in an acquired gender identity even if the above criteria are met, unless and until that marriage is ended by death, divorce or nullity.
which case confirmed R and F v Uk in that did not breach Art 8 and 12
MB v Secretary of State for Work and Pension
What happened in April 2013
consultation on same sex marriage included a proposal to remove the requirement to end an existing marriage before a full GRC can be granted. This has been enacted by s. 12 and sch 5 of 2013 Act.
Now if post 2013 what must done if a spouse wants to obtain a GRC
he or she must get spousal consent to change gender. This is to done by adding a reworked s. 4 to the GRA. If there is spousal consent, a full GRC can be issued (s. 4(2)(b)), but if there is not consent only an interim GRC can be issued (s. 4(3)(a)). Subsequent spousal consent (within six months) allows a full GRC to be issued: s. 4A(2). The status of the marriage is not affected by the issuance of the full GRC: s. 11A(2).
When can a CP get a GRC
a civil partner can only get a full GRC if his or her partner has also applied for a GRC (s 4(2)(c), this is on the basis that a civil partnership can only comprise two people of the same sex, therefore if the other partner has not applied for a GRC can only be issued an interim GRC (s 4(3)(c)(d). in s. 5B, a civil patner can only get a full GRC if the partner also gets one of the same day.