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Right to Identity: A Legal History of LGBTQ+ Rights (Part II)

by Raylene Fang

(For more on the decriminalization of homosexuality and the Sexual Offences Act 2003, head to Part I.)


The Fight for Transgender Gender Recognition

In tandem with the fight over the legal status of homosexual acts, the fight over transgender rights gained momentum in the 20th century, culminating in a slew of high-profile judicial review cases in the early 21st century. The most famous is Goodwin v United Kingdom (2002), where applicants complained about their treatment in relation to employment, social security and pensions and their inability to marry either as a man or a woman.


Christine Goodwin, one of the applicants, was forced to pay National Insurance contributions until the age of 65 rather than 60 because of her male legal status; she also faced sexual harassment at work during and after her gender reassignment surgeries. This resulted from the lack of legal recognition of her post-operative sex, and the legal status of transgender persons in the United Kingdom. The ECtHR found the UK law had breached of Article 8 (right to respect for private and family life) and Article 12 (right to marry and to start a family) of the European Convention on Human Rights.


A legacy of the Goodwin case was the introduction of the Gender Recognition Act in 2004, which recognised transgender people’s personal identity for the first time in UK law. Under the Act, transgender people were awarded full legal gender recognition, allowing them to obtain new birth certificates.


Marriage, equality, non-discrimination: A battle against more subtle challenges

In the 21st century, although homosexuality has been decriminalized, the challenges facing the LGBTQ+ community are more nuanced and take on a stronger human rights dimension.

The most prominent challenge has been marriage, an age-old institution traditionally defined in heterosexual terms. The traditional legal definition of marriage may be illustrated by the Section 11(c) of the Matrimonial Causes Act 1973, which provides that marriage shall be void on the ground that the parties are not respectively male and female. Prohibitions of same-sex marriages were similarly in place in Scotland and Northern Ireland. The most famous attempt to overturn Section 11(c) was in Bellinger v Belinger [2003], a judicial review case brought by a transgender claimant who desired her “marriage” after gender reassignment surgery to be valid. In response, the House of Lords issued a declaration of incompatibility under Section 4 of the Human Rights Act. However, it was only through the legislative development of the Gender Recognition Act 2004 that transgender groups were able to enter into valid marriages with their re-assigned genders.


By contrast, the milestone achieved through the Civil Partnership Act 2004 only amounted to a half victory for homosexual groups in their pursuit of same-sex marriages. Under the Act, homosexual couples could enter into civil partnerships, an arrangement that confers similar legal rights to married couples in many areas of the law, including parental responsibility, inheritance tax, social security, tenancy rights, full life insurance recognition and next of kin rights.


Despite its high resemblance to marriage, the fact that a distinct institution was created specifically for homosexual couples indicated the continued prejudice against homosexual groups. This was further demonstrated in Wilkinson v Kitzinger and others [2006], where the High Court dismissed the petitioners’ appeal for their same-sex marriage in Canada to be recognised in England. The High Court also refused to find the Civil Partnership Act incompatible with the Human Rights Act 1998, and in particular Article 8, 12 and 14 of the ECHR.


Couples had to wait for almost a decade, when the Marriage (Same-Sex Couples) Act 2013 was finally introduced to allow same-sex marriage in England and Wales. Less than a year later, the reform was paralleled in Scotland with the Marriage and Civil Partnership (Scotland) Act 2014. However, we can analyse this development as more of an exception than the norm: because of the devolution arrangement in the UK, parallel legislations governing Scotland and Northern Ireland have to be passed through their respective devolved legislatures, which inevitably takes extra time and creates opportunities for deliberate delay. For example, same-sex marriages have not yet been legally recognised in Northern Ireland. This cautions against a monolithic view of the legal history of LGBTQ+ rights in the UK.


Another landmark legislation was the Equality Act 2010. It aims to protect people from discrimination at workplace and in wider society. Gender reassignment (Section 7) and sexual orientation (Section 12) are amongst the nine protected characteristics. An example of the 2010 Act in effect: hotels and “bed and breakfast” owners cannot refuse double rooms to same-sex couples on the basis of their sexual orientation.


Notwithstanding the progress already made, it cannot be said that full legal “acceptance” of the LGBTQ+ community has been achieved. Discrimination has long been institutionalised, with its roots growing far deeper than the surface criminalisation of male homosexuality. While the Sexual Offence Act 2003 castrated the most outrageous forms of discrimination, more than one generation of legislative changes is required to eradicate less visible forms of discrimination. These include binary systems for gender options in birth certificate and passports, which reflect a limited understanding of the nuances of transgender identities; and that prisons prevent transgender prisoners from living in their gender roles by denying them access to gender-affirming items (e.g. wigs and tights) (R (Green) v Secretary of State for Justice [2013]).

If our achievements in the previous centuries may be seen as a shift from “disapproval” to “tolerance”, legal developments in LGBTQ+ rights in the 21st century have been marked by a progression from “tolerance” to “acceptance”. Fifty two years after the partial decriminalisation of male homosexuality through the Sexual Offence Act 1967, the UK is clearly on the course to “acceptance” of the LGBTQ+ community - from a legal point of view, at least. Yet, we must continue our fight against discrimination in more insidious forms, and remain sensitive to the nuanced challenges of our modern context.


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Ruilin (Raylene) Fang is a staff writer for OWLSS. She is interested in commercial law and legal history. Ruilin is a current affairs writer for Right For Education Oxford and a college representative of Oxford Women in Business Society. You can reach her at ruilin.fang@magd.ox.ac.uk.

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