Onder 2.12 Gemeenschappelijk Hof van Justitie van Aruba, Curaçao, Sint Maarten en van Bonaire, Sint Eustatius en Saba 6 december 2022

53. Two further cases are of interest in the present context: Parry v. the United Kingdom (dec.), no. 42971/05, ECHR 2006‑XV, and R. and F. v. the United Kingdom (dec.), no. 35748/05, 28 November 2006. In both cases the applicants were a married couple, consisting of a woman and a male-to-female post-operative transsexual. They complained, inter alia, under Article 12 of the Convention that they were required to end their marriage if the second applicant wished to obtain full legal recognition of her change of gender. The Court dismissed that complaint as being manifestly ill-founded. It noted that domestic law only permitted marriage between persons of opposite gender, whether such gender derived from attribution at birth or from a gender recognition procedure, while same-sex marriages were not permitted. Similarly, Article 12 enshrined the traditional concept of marriage as being between a man and a woman. The Court acknowledged that a number of Contracting States had extended marriage to same-sex partners, but went on to say that this reflected their own vision of the role of marriage in their societies and did not flow from an interpretation of the fundamental right as laid down by the Contracting States in the Convention in 1950. The Court concluded that it fell within the State’s margin of appreciation as to how to regulate the effects of the change of gender on pre-existing marriages. In addition, it considered that, should they choose to divorce in order to allow the transsexual partner to obtain full gender recognition, the fact that the applicants had the possibility to enter into a civil partnership contributed to the proportionality of the gender recognition regime complained of.

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