Marriage: Gender and Conjoined Twins
jure.toplak at uni-mb.si
Mon Mar 15 13:01:21 PST 2004
About transsexuals and the right to marry:
I know that foreign practice is not of much relevance for US, but here are
two cases from the top European courts - European Court of Human Rights and
EU Court of Justice. They both held that ban of transsexuals' right to marry
is violation of human rights. In one of the earlier decisions, though, ECHR
upheld ban on gay marriage. Therefore, to answer prof. Martin's question, at
least in Europe gay marriage and transsexual marriage is treated
In Goodwin v. UK (2002), European Court of Human Rights held that ban on
transsexuals' right to marry is violation of human rights. The applicant
complained about the lack of legal recognition of her post-operative sex and
about the legal status of transsexuals in the United Kingdom. She
complained, in particular, about her treatment in relation to employment,
social security and pensions and her inability to marry. She relied on
Articles 8, 12, 13 and 14 of the Convention.
The European Court of Justice ruled in January 2004 that British legislation
denying transsexuals the right to marry is contrary to European law because
it deprives them of any entitlement to a survivor's pension. The case
concerned a British nurse who went to court in Britain complaining that she
was unable to marry her partner, a female-to-male transsexual, who would
therefore be unable to receive her nurse's pension, which is restricted only
to married couples.
"The fact that certain benefits are restricted to married couples cannot be
regarded per se as discrimination on grounds of sex," the ruling said.
"However, there is inequality of treatment when, in breach of human rights,
a person is prevented from satisfying a condition upon which the award of a
benefit protected by Community law depends."
----- Original Message -----
From: "Francisco Martin" <ricenter at igc.org>
To: <conlawprof at lists.ucla.edu>
Sent: Monday, March 15, 2004 12:31 PM
Subject: Marriage: Gender and Conjoined Twins
> A few weeks and months ago, Prof. Levinson and I asked about transgendered
> persons marrying. No one ever responded to this question. If marriage is
> a fundamental right, how can transgendered (or inter-sexed) persons marry
> under a legal regime that allows only heterosexual marriage? For those
> opposed to gay marriage (e.g., Profs. Duncan, Kmiec), how do you all
> this question?
> And, here's another question. In the case of inoperable conjoined twins,
> can they even marry under a legal regime that disallows polygamy? This is
> not an unheard of question. I believe that 21 states refused to marry the
> conjoined sisters, Violet and Daisy Hilton.
> Isn't the idea of heterosexual marriage based on a biologically faulty
> conception of gender and personhood?
> Francisco Forrest Martin
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