AS’s Application
| Jurisdiction | Northern Ireland |
| Judge | Treacy J |
| Neutral Citation | [2016] NIQB 89 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 21 November 2016 |
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Neutral Citation: [2016] NIQB 89 Ref:
TRE10091
Judgment: approved by the Court for handing down Delivered:
21/11/2016
(subject to editorial corrections)*
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
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QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
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AS’s Application [2016] NIQB 89
IN THE MATTER OF AN APPLICATION BY “AS” FOR JUDICIAL REVIEW
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TREACY J
Introduction
[1] This application concerns the lawfulness of a “certified copy of an entry in
marriage registration records” dated 6th of March 2014 which relates to the
Applicant’s marriage. The Applicant was previously in a civil partnership with the
bride prior to him obtaining a gender recognition certificate recognising his true
identity as a male.
[2] In the portion of the entry entitled ‘status’ both bridegroom and bride are
reported as “civil partnership dissolved”. A civil partnership can only be between
two people of the same gender. The disclosure of this information on the copy of the
entry in the marriage registration records (“marriage certificate”) is, it is argued,
essentially a disclosure that either the bride or the bridegroom had a previous
gender history which was amended by way of a gender recognition certificate. This
is because the marriage certificate also discloses that the bridegroom and bride
shared the same surname prior to their marriage.
[3] The Applicant argues that the keeping of this information on a public register
which is required to be used by the Applicant for a number of public functions is
unnecessary and in breach of Article 8 ECHR and/or ultra vires and/or irrational.
Relief Sought
[4] The Applicant seeks the following relief:
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(a) A declaration that those provisions of the Marriage (Northern Ireland) Order
2003 and the Marriage (Northern Ireland) Regulations 2003 which require the
General Register Office (“GRO”) to keep a public record which might reveal
the Applicant’s previous gender history is unlawful;
(b) A declaration that those portions are incompatible with the Applicant’s rights
pursuant to Article 8 ECHR;
(c) An Order of Certiorari quashing the relevant portions;
(d) An Order of Mandamus compelling the Respondent to put in place such
measures as are necessary to prevent the publication of the Applicant’s
previous gender history;
(e) Such further or other necessary or consequential relief;
(f) Damages
(g) Costs
Grounds upon which Relief is Sought
[5] The relief is sought on the following grounds:
(a) The maintenance of a public record which reveals or has a tendency to reveal
the Applicant’s previous gender history is a breach of the Applicant’s rights
pursuant to Article 8 ECHR.
(b) The provisions of the Marriage (Northern Ireland) Order 2003 and the
Marriage (Northern Ireland) Regulations 2003 which require the Applicant to
reveal his previous gender history are arbitrary, irrational and fail to take into
consideration the provisions and spirit of The Gender Recognition Act 2004.
Statutory Framework
The Marriage (Northern Ireland) Order 2003
2. – Interpretation
…
“prescribed”, except in relation to a fee, means prescribed
by regulations
3. – Notice of intention to marry
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(1) Each of the parties to a marriage intended to be
solemnised in Northern Ireland shall give the registrar a
notice of intention to marry.
(2) In this Order –
“marriage notice” means notice of intention to marry;
“registrar” means the registrar for the district in which
the marriage is to take place
(3) A marriage notice shall be –
(a) In the prescribed form; and
(b) Accompanied by the prescribed fee and such
documents and other information as may be
prescribed…
4. – Power to require evidence
(1) A registrar to whom a marriage notice is given
may require the person giving the notice to provide him
with specified evidence relating to each of the persons to
be married.
(2) Such a requirement may be imposed at any time
on or after the giving of the marriage notice but before
the registrar issues the marriage schedule under Article 7.
(3) In paragraph (1) “specified evidence”, in relation
to a person, means such evidence of that person’s –
(a) name and surname;
(b) age;
(c) marital and civil partnership status; and
(d) nationality
As may be specified in guidance issued by the Registrar
General
(4) In Paragraph (3)(c), “marital and civil partnership
status”, in relation to a person, means whether that
person has previously formed a marriage or a civil
partnership, and if so, whether that marriage or
partnership has ended.
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