All marriages are equal, but some are more equal than others: Trans spouses and voidability rules in England and Wales

In England and Wales, the rights of trans people have long been intertwined with marriage. When, in Corbett v Corbett, Justice Ormrod declared that April Ashley was not legally a woman, he was actually determining her status for the purposes of marriage rather than the general law. In Goodwin v United Kingdom, the ECtHR held that an absolute prohibition on legal gender recognition violated both Article 8 and the right to marry under Article 12. Although the Gender Recognition Act 2004 broadened opportunities for trans people to marry, challenges still remain. Under section 12(1)(a), a different-sex marriage is voidable where there exists an incapacity to consummate. However, existing case law suggests that some trans individuals may never be able to consummate in their lived gender. Similarly, under section 12(1)(g) [read with the Marriage (Same-Sex Couples) Act 2013], trans individuals must annul their marriage if their spouse objects to remaining married post-GRC. Finally, under section 12(1)(h), a marriage is voidable if, upon entering that marriage, one party did not know that their spouse had obtained a Gender Recognition Certificate. This article analyses the transfocused rules in section 12(1), considering the extent to which the current law is justified as a matter of policy, consistent with general principles of English family law, and potentially in violation of the ECHR.