Download Развитие и применение искусственного интеллекта в медицине and more Study notes Law in PDF only on Docsity!
House of Lords
Bellinger v Bellinger (Lord Chancellor intervening)
[ 2003 ] UKHL 21
2003 Jan 20 , 21 ; Lord Nicholls of Birkenhead, Lord Hope of Craighead, April 10 Lord Hobhouse of Woodborough, Lord Scott of Foscote and Lord Rodger of Earlsferry
Husband and wife Ñ Nullity Ñ Capacity to marry Ñ Gender Ñ Wife correctly registered as male at birth Ñ Thereafter living as female and undergoing gender reassignment surgery Ñ Wife seeking declaration of validity of marriage Ñ Whether female or male for purposes of marriage Ñ Whether violations of right to respect for private and family life and right to marry Ñ Matrimonial Causes Act 1973 (c 18 ), s 11 (c) Ñ Human Rights Act 1998 (c 42 ), s 4 , Sch 1 , Pt I, arts 8 , 12
The petitioner was a transsexual female born in 1946 who had been correctly classiÞed and registered at birth as male but had undergone gender reassignment surgery and treatment. In 1981 she went through a ceremony of marriage with a man who supported her petition for a declaration that the marriage was valid at its inception and subsisting. The judge refused to grant the declaration on the ground that ÔÔmaleÕÕ and ÔÔfemaleÕÕ in section 11 (c) of the Matrimonial Causes Act 19731 were to be determined by reference to biological criteria and that the petitioner was a male and not a woman for the purposes of marriage. The Court of Appeal dismissed the petitionerÕs appeal. On the petitionerÕs appeal, claiming alternatively a declaration that section 11 (c) was incompatible with articles 8 and 12 of Schedule 1 Part I to the Human Rights Act 1998 2 Ñ Held, ( 1 ) dismissing the appeal, that ÔÔmaleÕÕ and ÔÔfemaleÕÕ in section 11 (c) of the 1973 Act were to be given their ordinary meaning and referred to a personÕs biological gender as determined at birth, so that, for the purposes of marriage, a person born with one sex could not later become a person of the opposite sex; that therefore English law did not recognise a marriage between two people who were of the same gender at birth, even if one of them had undergone gender reassignment treatment which altered the anatomical features of the body to give the appearance of those of the opposite gender; that any other conclusion would amount to a major change in the law and would also create anomalies and uncertainties due to the lack of objective criteria by which gender reassignment treatment could be assessed; that such a fundamental change in the law, which would interfere with the traditional concept of marriage and give rise to complex and sensitive issues, should be made only by Parliament after careful deliberation and not by judicial intervention; and that, accordingly, the petitioner having been born male could not be regarded as female as a result of gender reassignment treatment, and therefore the marriage was not valid as the parties were not respectively male and female within the meaning of section 11 (c) ( post, paras 36 Ð 49 , 56 Ð 58 , 62 Ð 65 , 71 , 77 , 80 Ð 83 ). Corbett v Corbett (orse Ashley) [ 1971 ] P 83 considered.
A B C D E F G H
(^1) Matrimonial Causes Act 1973 , s 11 (c): ÔÔA marriage... shall be void on the following grounds only, that is to say... that the parties are not respectively male and female.. .ÕÕ 2 Human Rights Act 1998 , Sch 1 , Pt I, art 8 : ÔÔ( 1 ) Everyone has the right to respect for his private and family life, his home and his correspondence.ÕÕ Art 12 : ÔÔMen and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.ÕÕ
[2003] 2 AC[2003] 2 AC Bellinger v Bellinger (HL(E))Bellinger v Bellinger (HL(E))
( 2 ) That since there was no provision for the recognition of gender reassignment for the purposes of marriage, section 11 (c) was a continuing obstacle to the petitioner entering into a valid marriage with a man and was therefore incompatible with the petitionerÕs right to respect for her private and family life and with her right to marry pursuant to articles 8 and 12 respectively, and a declaration would be granted to that eect ( post, paras 52 , 55 , 68 Ð 71 , 79 , 80 , 81 ). Goodwin v United Kingdom ( 2002 ) 35 EHRR 447 considered. Decision of the Court of Appeal [ 2001 ] EWCA Civ 1140 ; [ 2002 ] Fam 150 ; [ 2002 ] 2 WLR 411 ; [ 2002 ] 1 All ER 311 a±rmed.
The following cases are referred to in the judgments:
Attorney General v Otahuhu Family Court [ 1995 ] 1 NZLR 603 Corbett v Corbett (orse Ashley) [ 1971 ] P 83 ; [ 1970 ] 2 WLR 1306 ; [ 1970 ] 2 All ER 33 Cossey v United Kingdom ( 1990 ) 13 EHRR 622 Goodwin v United Kingdom ( 2002 ) 35 EHRR 447 I v United Kingdom (Application No 25680 / 94 ) (unreported) 11 July 2002 , ECHR Kevin, In re (Validity of Marriage of Transsexual) [ 2001 ] Fam CA 1074 ; Appeal No EA 97 / 2001 ; (unreported) 21 February 2003 , Family Court of Australia M v M ( 1984 ) 42 RFL ( 2 d) 55 Marckx v Belgium ( 1979 ) 2 EHRR 330 R v A ( No 2 ) [ 2001 ] UKHL 25 ; [ 2002 ] 1 AC 45 ; [ 2001 ] 2 WLR 1546 ; [ 2001 ] 3 All ER 1 , HL(E) R v Kansal (No 2 ) [ 2001 ] UKHL 62 ; [ 2002 ] 2 AC 69 ; [ 2001 ] 3 WLR 1562 ; [ 2002 ] 1 All ER 257 , HL(E) R v Lambert [ 2001 ] UKHL 37 ; [ 2002 ] 2 AC 545 ; [ 2001 ] 3 WLR 206 ; [ 2001 ] 3 All ER 577 , HL(E) R v Lyons [ 2002 ] UKHL 44 ; [ 2003 ] 1 AC 976 ; [ 2002 ] 3 WLR 1562 ; [ 2002 ] 4 All ER 1028 , HL(E) R v Tan [ 1983 ] QB 1053 ; [ 1983 ] 3 WLR 361 ; [ 1983 ] 2 All ER 12 , CA Rees v United Kingdom ( 1986 ) 9 EHRR 56 S (Minors) (Care Order: Implementation of Care Plan), In re [ 2002 ] UKHL 10 ; [ 2002 ] 2 AC 291 ; [ 2002 ] 2 WLR 720 ; [ 2002 ] 2 All ER 192 , HL(E) S-T (formerly J) v J [ 1998 ] Fam 103 ; [ 1997 ] 3 WLR 1287 ; [ 1998 ] 1 All ER 431 , CA Secretary, Department of Social Security v SRA ( 1993 ) 118 ALR 467 She±eld and Horsham v United Kingdom ( 1998 ) 27 EHRR 163 W v W ( 1976 ) ( 2 ) SA 308 W v W (Physical Inter-sex) [ 2001 ] Fam 111 ; [ 2001 ] 2 WLR 674 Walden v Lichtenstein (Application No 33916 / 96 ) (unreported) 16 March 2000 , ECHR
The following additional cases were cited in argument:
Fitzpatrick v Sterling Housing Association Ltd [ 2001 ] 1 AC 27 ; [ 1999 ] 3 WLR 1113 ; [ 1999 ] 4 All ER 705 , HL(E) R v Secretary of State for Employment, Ex p Seymour-Smith (No 2 ) [ 2000 ] 1 WLR 435 ; [ 2000 ] 1 All ER 857 , HL(E)
APPEAL from the Court of Appeal By leave of the House of Lords (Lord Bingham of Cornhill, Lord Hope of Craighead and Lord Hobhouse of Woodborough) granted on 17 January 2002 , the petitioner, Elizabeth Ann Bellinger, supported by the respondent, Michael Jerey Bellinger, appealed from a decision of the Court of Appeal (Dame Elizabeth Butler-Sloss P and Robert Walker LJ, Thorpe LJ dissenting) on 17 July 2001 dismissing the petitionerÕs appeal from a decision of Johnson J on 2 November 2000 refusing to grant a declaration under section 55 of the Family Law Act 1986 that the petitionerÕs marriage to the
A B C D E F G H
Bellinger v Bellinger (HL(E))Bellinger v Bellinger (HL(E)) [2003] 2 AC[2003] 2 AC
regard them dierently. [Reference was made to Goodwin v United Kingdom ( 2002 ) 35 EHRR 447 .] The petitioner has fulÞlled all the conditions for surgical realignment and has been in a happy and fulÞlling marriage for over 20 years. The court must look at the situation as it was at the time of the marriage. She is entitled to a declaration that she is female and that the marriage was binding. Alternatively, if the narrow deÞnition in the Corbett case still stands, section 11 (c) of the 1973 Act should be held to be incompatible with articles 8 and 12 of the European Convention on Human Rights.
Philip Sales and Kassie Smith for the Lord Chancellor. By application of the ordinary rules of construction established in domestic law, and apart from the Human Rights Act 1998 , the term ÔÔfemaleÕÕ in section 11 (c) of the 1973 Act cannot be construed so as to cover a male to female transsexual person. In 1981 domestic law did not allow transsexual persons to marry in their acquired gender and the same has been true since the Human Rights Act 1998 came into force. The concepts of ÔÔmaleÕÕ and ÔÔfemaleÕÕ in the context of the 1973 Act are Þxed and not changeable. Marriage confers a legal status which aects other legal rights in Þelds such as contract, crime, pensions and inheritance. Therefore clear objective criteria should apply to determine whether a marriage is valid or not. The psychological criterion is unsatisfactory for the purposes of the legal function which of section 11 (c) must fulÞl. It does not provide a clear, determinate indication of when a person acquires a dierent sex from that given by reference to the criteria available at birth. The 1973 Act does not contemplate that marital status should change except by divorce. Parliament intended that sexual identity should conform with the registration of sex at birth. The only criteria that can be applied to determine a childÕs sex at birth remain the physiological Corbett criteria, which provide a consistent approach and legal certainty. [Reference was made to Fitzpatrick v Sterling Housing Association Ltd [ 2001 ] 1 AC 27 .] The adoption of new criteria is a matter for Parliament and not for the courts. A birth certiÞcate has an on going function and Parliament contemplate there should be stability of sexual identity over time. Section 11 (c) was introduced to reßect the law as decided in the Corbett case [ 1971 ] P 83. There is an overlap between the religious concepts and the legal concepts of marriage, and the religious background is important in the interpretation of this legislation. The presumption is that marriage is a union between a man and a woman. The wide range of circumstances considered in In re Kevin (Validity of Marriage of Transsexual) [ 2001 ] Fam CA 1074 , para 330 would be unsatisfactory as a test for determining ÔÔmaleÕÕ and ÔÔfemaleÕÕ for the purposes of section 11 (c). It would be unfair that those who have had gender reassignment surgery should have an advantage over those who have similar psychological needs but cannot have surgery. Surgery is only one of a range of medical procedures designed to alleviate psychological gender identity disorder. In Goodwin v United Kingdom 35 EHRR 447 the court was concerned not only with marriage but with a range of domestic laws and policies which failed to recognise a transsexual personÕs acquired gender. The court
A B C D E F G H
Bellinger v Bellinger (HL(E))Bellinger v Bellinger (HL(E)) [2003] 2 AC[2003] 2 AC
intended that the United Kingdom government should have a reasonable period within which to adjust the law to take account of the courtÕs judgment. During that period there will be objective justiÞcation on grounds of legal certainty and the need for principled and coherent reform of the law by the legislature for maintaining and applying section 11 (c). [Reference was made to Marck v Belgium ( 1979 ) 2 EHRR 330 ; Walden v Lichtenstein (Application No 33916 / 96 ) (unreported) 16 March 2000 and R v Secretary of State for Employment, Ex p Seymour-Smith (No 2 ) [ 2000 ] 1 WLR 435 .] A declaration of incompatibility would serve no useful purpose because it would merely trigger the power of the minister to amend the law under section 10 of the Human Rights Act; but by virtue of the Goodwin decision and the terms of section 10 the minister already has those powers. In principle a declaration of incompatibility should not be granted where the matter is already covered by a judgment of the European Court of Human Rights because it would encourage needless litigation. Scriven QC replied.
Their Lordships took time for consideration.
10 April. LORD NICHOLLSOF BIRKENHEAD 1 My Lords, can a person change the sex with which he or she is born? Stated in an over-simpliÞed and question-begging form, this is the issue raised by this appeal. More speciÞcally, the question is whether the petitioner, Mrs Elizabeth Bellinger, is validly married to Mr Michael Bellinger. On 2 May 1981 Mr and Mrs Bellinger went through a ceremony of marriage to each other. Section 1 (c) of the Nullity of Marriage Act 1971 , re-enacted in section 11 (c) of the Matrimonial Causes Act 1973 , provides that a marriage is void unless the parties are ÔÔrespectively male and femaleÕÕ. The question is whether, at the time of the marriage, Mrs Bellinger was ÔÔfemaleÕÕ within the meaning of that expression in the statute. In these proceedings she seeks a declaration that the marriage was valid at its inception and is subsisting. The trial judge, Johnson J, refused to make this declaration: see [ 2001 ] 1 FLR 389. So did the Court of Appeal, by a majority of two to one: see [ 2002 ] Fam 150. The majority comprised Dame Elizabeth Butler-Sloss P and Robert Walker LJ. Thorpe LJ dissented. 2 In an alternative claim, advanced for the Þrst time before your LordshipsÕ House, Mrs Bellinger seeks a declaration that section 11 (c) of the Matrimonial Causes Act 1973 is incompatible with articles 8 and 12 of the European Convention on Human Rights. The Lord Chancellor has intervened in the proceedings as the minister with policy responsibility for that statutory provision. 3 Mrs Bellinger was born on 7 September 1946. At birth she was correctly classiÞed and registered as male. That is common ground. For as long as she can remember, she felt more inclined to be female. She had an increasing urge to live as a woman rather than as a man. Despite her inclinations, and under some pressure, in 1967 she married a woman. She was then 21. The marriage broke down. They separated in 1971 and were divorced in 1975. 4 Since then Mrs Bellinger has dressed and lived as a woman. She underwent treatment, described below. When she married Mr Bellinger he
A B C D E F G H
[2003] 2 AC[2003] 2 AC Bellinger v Bellinger (HL(E))Bellinger v Bellinger (HL(E)) Lord Nichollsof BirkenheadLord Nichollsof Birkenhead
characteristics. Irreversible surgery can adapt or remove genitalia and other organs, external and internal. By this means a normal body of one sex can be altered so as to give the appearance of a normal body of the other sex. But there are still limits to what can be done. Gonads cannot be constructed. The creation of replica genital organs is particularly di±cult with female to male gender reassignment surgery. Chromosomal patterns remain unchanged. The change of body can never be complete. 9 Surgery of this nature is the last step in what are typically four steps of treatment. The four steps are psychiatric assessment, hormonal treatment, a period of living as a member of the opposite sex subject to professional supervision and therapy (the ÔÔreal life experienceÕÕ), and Þnally, in suitable cases, gender reassignment surgery. In February 1981 Mrs Bellinger, having been through the previous stages of treatment, successfully underwent this form of surgery. This involved removal of her testes and penis and, in the words of Johnson J, ÔÔthe creation of an oriÞce which can be described as an artiÞcial vagina, but she was still without uterus or ovaries or any other biological characteristics of a woman.ÕÕ A chromosomal test, dated 8 April 1999 , showed her to have a karyotype 46 XY pattern, an apparently normal male karyotype. 10 For completeness I should mention in passing that a transsexual person is to be distinguished from a homosexual person. A homosexual is a person who is attracted sexually to persons of the same sex. Nor should a transsexual person be confused with a transvestite. A transvestite is a person who, usually for the purpose of his or her sexual gratiÞcation, enjoys dressing in the clothes of the opposite sex.
The present state of the law 11 The present state of English law regarding the sex of transsexual people is represented by the well known decision of Ormrod J in Corbett v Corbett (orse Ashley) [ 1971 ] P 83 , 104 , 106. That case, like the present one, concerned the gender of a male to female transsexual in the context of the validity of a marriage. Ormrod J held that, in this context, the law should adopt the chromosomal, gonadal and genital tests. If all three are congruent, that should determine a personÕs sex for the purpose of marriage. Any operative intervention should be ignored. The biological sexual constitution of an individual is Þxed at birth, at the latest, and cannot be changed either by the natural development of organs of the opposite sex or by medical or surgical means. 12 In R v Tan [ 1983 ] QB 1053 , 1063 Ð 1064 , the Court of Appeal, comprising May LJ and Parker and Staughton JJ, applied the Corbett approach in the context of criminal law. The court upheld convictions which were dependent on Gloria Greaves, a post-operative male to female transsexual, still being in law a man. In S-T (formerly J) v J [ 1998 ] Fam 103 , 122 , a case of a female to male transsexual, the correctness of the decision in Corbett seems not to have been challenged. But Ward LJ suggested that the decision would bear re-examination. 13 The decision in Corbett has attracted much criticism, from the medical profession and elsewhere. The criteria for designating a person as male or female are complex. It is too ÔÔreductionisticÕÕ to have regard only to the three Corbett factors of chromosomes, gonads and genitalia. This approach ignores ÔÔthe compelling signiÞcance of the psychological status of
A B C D E F G H
[2003] 2 AC[2003] 2 AC Bellinger v Bellinger (HL(E))Bellinger v Bellinger (HL(E)) Lord Nichollsof BirkenheadLord Nichollsof Birkenhead
the person as a man or a womanÕÕ. Further, the application of the Corbett approach leads to a substantially dierent outcome in the cases of a post- operative inter-sexual person and a post-operative transsexual person, even though, post-operatively, the bodies of the two individuals may be remarkably similar. 14 In overseas jurisdictions Corbett has not been universally followed. It was followed, for instance, in South Africa in W v W ( 1976 ) ( 2 ) SA 308 and in Canada in M v M ( 1984 ) 42 RFL ( 2 d) 55. But more recently the trend has been in the opposite direction. Thus, for instance, in New Zealand and Australia post-operative transsexualsÕ assigned sex has been recognised for the purpose of validating their marriages. In New Zealand in Attorney General v Otahuhu Family Court [ 1995 ] 1 NZLR 603 , 630 , Ellis J noted that once a transsexual person has undergone surgery, he or she is no longer able to operate in his or her original sex. He held there is no social advantage in the law not recognising the validity of the marriage of a transsexual in the sex of reassignment. An adequate test is whether the person in question has undergone surgical and medical procedures that have eectively given the person the physical conformation of a person of a speciÞed sex. 15 In Australia Chisholm J reached a similar conclusion in In re Kevin (Validity of Marriage of Transsexual) [ 2001 ] Fam CA 1074 , a case decided after the decision of the Court of Appeal in the present case. Chisholm JÕs extensive judgment contains a powerful critique of the existing law and a useful review of international developments. Having regard to the view I take of this case, it is not necessary for me to elaborate on his views. Su±ce to say, his conclusion was that there is no ÔÔformulaic solutionÕÕ to determining the sex of an individual for the purpose of the law of marriage. All relevant matters need to be considered, including the personÕs life experiences and self-perception. Post-operative transsexual people will normally be members of their reassigned sex. 16 This decision was the subject of an appeal. Very recently, on 21 February 2003 , the full court of the Federal Family Court dismissed the appeal: Appeal No EA/ 97 / 2001 (unreported). The judgment of the full court contains an invaluable survey of the authorities and the issues. The court concluded that in the relevant Commonwealth marriage statute the words ÔÔmanÕÕ and ÔÔwomanÕÕ should be given their ordinary, everyday contemporary meaning. Chisholm J was entitled to conclude, as a question of fact, that the word ÔÔmanÕÕ includes a post-operative female to male transsexual person. The full court left open the ÔÔmore di±cultÕÕ question of pre-operative transsexual persons.
The decisions of the courts below
17 The trial judge, Johnson J, recognised there has been a marked change in social attitudes to problems such as those of Mrs Bellinger since Corbett v Corbett (orse Ashley) [ 1971 ] P 83 was decided in 1970. The law on this matter in this country is, or is becoming, a minority position, at least so far as Europe is concerned. But the law is clear, and as a judge he had to accept the law as it is. What is also clear is that this is no simple matter. Potentially there are serious implications to be considered in relation to the law of marriage and other areas of life: see [ 2001 ] 1 FLR 389 , 402. 18 Likewise, the majority of the Court of Appeal, having considered up to date medical evidence, adhered to the Corbett approach. The three
A B C D E F G H
Bellinger v Bellinger (HL(E))Bellinger v Bellinger (HL(E)) [2003] 2 AC[2003] 2 AC Lord Nichollsof BirkenheadLord Nichollsof Birkenhead
employment tribunal because she was considered in law to be a man. She was not eligible for a state pension at 60 , the age of entitlement for women. She remained obliged to pay the higher car insurance premiums applicable to men. In many instances she had to choose between revealing her birth certiÞcate and forgoing advantages conditional upon her producing her birth certiÞcate. Her inability to marry as a woman seems not to have been the subject of speciÞc complaint by her. But in its judgment the court expressed its views on this and other aspects of the lack of legal recognition of her gender reassignment. 23 Some of the main points in the judgment of the court can be summarised as follows. In the interests of legal certainty, foreseeability and equality before the law the court should not depart, without good reason, from precedents laid down in previous cases. But the court must have regard to changing conditions within the respondent state and within contracting states generally. The court must respond to any evolving convergence on the standards to be achieved: paragraph 74. A test of congruent biological factors can no longer be decisive in denying legal recognition to the change of gender of a post-operative transsexual: paragraph 100. With increasingly sophisticated types of surgery and hormonal treatments the principal unchanging biological aspect of gender identity is the chromosomal element. It is not apparent that this must inevitably be of decisive signiÞcance: paragraph 82. The court recognised that it is for a contracting state to determine, amongst other matters, the conditions under which a person claiming legal recognition as a transsexual establishes that gender re- assignment has been properly eected. But it found ÔÔno justiÞcation for barring the transsexual from enjoying the right to marry under any circumstancesÕÕ: paragraph 103. 24 This decision of the court was essentially prospective in character. The court made this plain. Until 1998 , the date of the decision in She±eld and Horsham v United Kingdom 27 EHRR 163 , the court had found that the United KingdomÕs treatment of post-operative transsexual people was within this countryÕs margin of appreciation and that this treatment did not violate the Convention. By the Goodwin decision the court found that ÔÔthe situation, as it has evolved, no longer falls within the United KingdomÕs margin of appreciationÕÕ: paragraphs 119 Ð 120 (emphasis added).
Developments since the Goodwin decision
25 This decision of the European Court of Human Rights prompted three developments. First, in written answers to the House of Commons on 23 July 2002 , the Parliamentary Secretary to the Lord ChancellorÕs Department noted that the Interdepartmental Working Group on Transsexual People had been reconvened. Its terms of reference include re- examining the implications of granting full legal status to transsexual people in their acquired gender. The minister stated that the working group had been asked to consider urgently the implications of the Goodwin judgment. 26 The second development has an important bearing on the outcome of this appeal. On 13 December 2002 the Government announced its intention to bring forward primary legislation which will allow transsexual people who can demonstrate they have taken decisive steps towards living fully and permanently in the acquired gender to marry in that gender. The
A B C D E F G H
Bellinger v Bellinger (HL(E))Bellinger v Bellinger (HL(E)) [2003] 2 AC[2003] 2 AC Lord Nichollsof BirkenheadLord Nichollsof Birkenhead
legislation will also deal with other issues arising from the legal recognition of acquired gender. A draft outline Bill will be published in due course. 27 The third development was that before your LordshipsÕ House counsel for the Lord Chancellor accepted that, from the time of the Goodwin decision, those parts of English law which fail to give legal recognition to the acquired gender of transsexual persons are in principle incompatible with articles 8 and 12 of the Convention. Domestic law, including section 11 (c) of the Matrimonial Causes Act 1973 , will have to change.
Gender reassignment 28 The distinction between male and female exists throughout the animal world. It corresponds to the dierent roles played in the reproductive process. A male produces sperm which fertilise the femaleÕs eggs. In this country, as elsewhere, classiÞcation of a person as male or female has long conferred a legal status. It confers a legal status, in that legal as well as practical consequences follow from the recognition of a person as male or female. The legal consequences aect many areas of life, from marriage and family law to gender-speciÞc crime and competitive sport. It is not surprising, therefore, that society through its laws decides what objective biological criteria should be applied when categorising a person as male or female. Individuals cannot choose for themselves whether they wish to be known or treated as male or female. Self-deÞnition is not acceptable. That would make nonsense of the underlying biological basis of the distinction. 29 This approach did not give rise to legal di±culty before the advent of gender reassignment treatment. This was noted by Lord Reed in his article ÔÔSplitting the dierence: transsexuals and European Human Rights lawÕÕ (September 2000 ). Gender identity disorder seems always to have existed. But before the advent of gender reassignment treatment a claim by a transsexual person to be recognised in his or her self-perceived gender would have been hopeless. The anatomy of his or her body of itself would have refuted the claim. 30 The position has now changed. Recognition of transsexualism as a psychiatric disorder has been accompanied by the development of sophisticated techniques of medical treatment. The anatomical appearance of the body can be substantially altered, by forms of treatment which are permissible as well as possible. It is in these changed circumstances that society is now facing the question of how far it is prepared to go to alleviate the plight of the small minority of people who suer from this medical condition. Should self-perceived gender be recognised? 31 Recognition of gender reassignment will involve some blurring of the normally accepted biological distinction between male and female. Some blurring already exists, unavoidably, in the case of inter-sexual persons. When assessing the gender of inter-sexual persons, matters taken into account include self-perception and style of upbringing and living. Recognition of gender reassignment will involve further blurring. It will mean that in law a person who, unlike an inter-sexual person, had all the biological characteristics of one sex at birth may subsequently be treated as a member of the opposite sex. 32 Thus the circumstances in which, and the purposes for which, gender reassignment is recognised are matters of much importance. These are not easy questions. The circumstances of transsexual people vary widely. The
A B C D E F G H
[2003] 2 AC[2003] 2 AC Bellinger v Bellinger (HL(E))Bellinger v Bellinger (HL(E)) Lord Nichollsof BirkenheadLord Nichollsof Birkenhead
line marking the transition from one sex to the other is to be drawn, Mrs Bellinger is on the reassigned gender side of the line. 40 I do not consider this would be a proper or, indeed, a responsible basis on which to change the law. Surgical intervention takes many forms and, for a variety of reasons, is undertaken by dierent people to dierent extents. For men it may mean castration or inversion of the penis to create a false vagina. For women it may mean a mastectomy, hysterectomy, or creation of a false penis by phalloplasty. There seems to be no ÔÔstandardÕÕ operation or recognised deÞnition of the outcome of completed surgery. Today the case before the House concerns Mrs Bellinger. TomorrowÕs case in the High Court will relate to a transsexual person who has been able to undergo a less extensive course of surgery. The following week will be the case of a transsexual person who has undergone hormonal treatment but who, for medical reasons, has not been able to undergo any surgery. Then there will be a transsexual person who is medically able to undergo all or part of the surgery but who does not wish to do so. By what criteria are cases such as these to be decided? 41 But the problem is more fundamental than this. It is questionable whether the successful completion of some sort of surgical intervention should be an essential prerequisite to the recognition of gender reassignment. If it were, individuals may Þnd themselves coerced into major surgical operations they otherwise would not have. But the aim of the surgery is to make the individual feel more comfortable with his or her body, not to ÔÔturn a man into a womanÕÕ or vice versa. As one medical report has expressed it, a male to female transsexual person is no less a woman for not having had surgery, or any more a woman for having had it: see Secretary, Department of Social Security v SRA ( 1993 ) 118 ALR 467 , 477. 42 These are deep waters. Plainly, there must be some objective, publicly available criteria by which gender reassignment is to be assessed. If possible the criteria should be capable of being applied readily so as to produce a reasonably clear answer. Parties proposing to enter into a marriage relationship need to know whether their marriage will be valid. Other people need to know whether a marriage was valid. Marriage has legal consequences in many directions: for instance, housing and residential security of tenure, social security beneÞts, citizenship and immigration, taxation, pensions, inheritance, life insurance policies, criminal law (bigamy). There must be an adequate degree of certainty. Otherwise, as the majority of the Court of Appeal observed, the applicability of the law to an individual suering from gender identity disorder would be in a state of complete confusion: see [ 2002 ] 2 Fam 150 , 177 , para 104. 43 Your LordshipsÕ House is not in a position to decide where the demarcation line could sensibly or reasonably be drawn. Where this line should be drawn is far from self-evident. The antipodean decisions of Attorney General v Otahuhu Family Court [ 1995 ] 1 NZLR 603 and In re Kevin (Validity of Marriage of Transsexual) [ 2001 ] Fam CA 1074 and Appeal No EA 97 / 2001 have not identiÞed any clear, persuasive principle in this regard. Nor has the dissenting judgment of Thorpe LJ in the present case. Nor has the decision of the European Court of Human Rights in Goodwin v United Kingdom 35 EHRR 447. Nor is there uniformity among the 13 member states of the European Union which aord legal recognition
A B C D E F G H
[2003] 2 AC[2003] 2 AC Bellinger v Bellinger (HL(E))Bellinger v Bellinger (HL(E)) Lord Nichollsof BirkenheadLord Nichollsof Birkenhead
to a transsexual personÕs acquired gender. The preconditions for recognition vary considerably. 44 Further, the House is not in a position to give guidance on what other preconditions should be satisÞed before legal recognition is given to a transsexual personÕs acquired gender. Some member states of the European Union insist on the applicant being single or on existing marriages being dissolved. Some insist on the applicant being sterile. Questions arise about the practical mechanisms and procedures for obtaining recognition of acquired gender, and about the problem of people who ÔÔrevertÕÕ to their original gender after a period in their new gender role. 45 Secondly, the recognition of gender reassignment for the purposes of marriage is part of a wider problem which should be considered as a whole and not dealt with in a piecemeal fashion. There should be a clear, coherent policy. The decision regarding recognition of gender reassignment for the purpose of marriage cannot sensibly be made in isolation from a decision on the like problem in other areas where a distinction is drawn between people on the basis of gender. These areas include education, child care, occupational qualiÞcations, criminal law (gender-speciÞc oences), prison regulations, sport, the needs of decency, and birth certiÞcates. Birth certiÞcates, indeed, are one of the matters of most concern to transsexual people, because birth certiÞcates are frequently required as proof of identity or age or place of birth. When, and in what circumstances, should these certiÞcates be capable of being reissued in a revised form which does not disclose that the person has undergone gender reassignment? 46 Thirdly, even in the context of marriage, the present question raises wider issues. Marriage is an institution, or relationship, deeply embedded in the religious and social culture of this country. It is deeply embedded as a relationship between two persons of the opposite sex. There was a time when the reproductive functions of male and female were regarded as the primary raison dÕtre of marriage. The Church of England Book of Common Prayer of 1662 declared that the Þrst cause for which matrimony was ordained was the ÔÔprocreation of childrenÕÕ. For centuries this was proclaimed at innumerable marriage services. For a long time now the emphasis has been dierent. Variously expressed, there is much more emphasis now on the ÔÔmutual society, help and comfort that the one ought to have of the otherÕÕ. 47 Against this background there are those who urge that the special relationship of marriage should not now be conÞned to persons of the opposite sex. It should be possible for persons of the same sex to marry. This, it is said, is the appropriate way to resolve problems such as those confronting Mrs Bellinger. 48 It hardly needs saying that this approach would involve a fundamental change in the traditional concept of marriage. Here again, this raises a question which ought to be considered as part of an overall review of the most appropriate way to deal with the di±culties confronting transsexual people. 49 For these reasons I would not make a declaration that the marriage celebrated between Mr and Mrs Bellinger in 1981 was valid. A change in the law as sought by Mrs Bellinger must be a matter for deliberation and decision by Parliament when the forthcoming Bill is introduced.
A B C D E F G H
Bellinger v Bellinger (HL(E))Bellinger v Bellinger (HL(E)) [2003] 2 AC[2003] 2 AC Lord Nichollsof BirkenheadLord Nichollsof Birkenhead
forward primary legislation on this subject. For this reason also, counsel submitted, making a declaration of incompatibility would serve no useful purpose. 55 I am not persuaded by these submissions. If a provision of primary legislation is shown to be incompatible with a Convention right the court, in the exercise of its discretion, may make a declaration of incompatibility under section 4 of the Human Rights Act 1998. In exercising this discretion the court will have regard to all the circumstances. In the present case the government has not sought to question the decision of the European Court of Human Rights in Goodwin 35 EHRR 447. Indeed, it is committed to giving eect to that decision. Nevertheless, when proceedings are already before the House, it is desirable that in a case of such sensitivity this House, as the court of Þnal appeal in this country, should formally record that the present state of statute law is incompatible with the Convention. I would therefore make a declaration of incompatibility as sought. I would otherwise dismiss this appeal.
LORD HOPE OF CRAIGHEAD
56 My Lords, my noble and learned friend, Lord Nicholls of Birkenhead, has explained the nature of the condition from which Mrs Bellinger has been suering from as long as she can remember and the profound changes which she has undergone, both physically and socially, to give eect to her wish to live her life as a woman rather than as a man. Her courage and that of Mr Bellinger, who has supported her constantly throughout their marriage, deserve our respect and admiration. If there was a legitimate way of solving their problem and making the declaration which Mrs Bellinger seeks, I would of course wish to take it. But I agree with my noble and learned friend that the expressions ÔÔmaleÕÕ and ÔÔfemaleÕÕ in section 11 (c) of the Matrimonial Causes Act 1973 are not capable of being given the extended meaning that would be needed to accommodate her case, and that we have no option but to dismiss this appeal. 57 The essence of the problem, as I see it, lies in the impossibility of changing completely the sex which individuals acquire when they are born. A great deal can be done to remove the physical features of the sex from which the transsexual wishes to escape and to reproduce those of the sex which he or she wishes to acquire. The body can be altered to produce all the characteristics that the individual needs to feel comfortable, and there are no steps that cannot be taken to adopt a way of life that will enable him or her to enter into a satisfactory and loving heterosexual relationship. But medical science is unable, in its present state, to complete the process. It cannot turn a man into a woman or turn a woman into a man. That is not what the treatment seeks to do after all, although it is described as gender reassignment surgery. It is not just that the chromosomes that are present at birth are incapable of being changed. The surgery, however extensive and elaborate, cannot supply all the equipment that would be needed for the patient to play the part which the sex to which he or she wishes to belong normally plays in having children. At best, what is provided is no more than an imitation of the more obvious parts of that equipment. Although it is often described as a sex change, the process is inevitably incomplete. A complete change of sex is, strictly speaking, unachievable.
A B C D E F G H
Bellinger v Bellinger (HL(E))Bellinger v Bellinger (HL(E)) [2003] 2 AC[2003] 2 AC Lord Nichollsof BirkenheadLord Nichollsof Birkenhead
58 It is tempting to regard the fact that a complete sex change is unachievable as a mere technicality when this is compared with everything else that can be achieved in the case of post-operative transsexuals. But the law of marriage exists in order to deÞne the circumstances in which the public status that follows from a valid marriage may be acquired. There is much to be said for the view that the words ÔÔmaleÕÕ and ÔÔfemaleÕÕ should each be given a single, clear meaning that can be applied uniformly in all cases. That was achieved by the decision in Corbett v Corbett (orse Ashley) [ 1971 ] P 83 , which predated the re-enactment of section 1 (c) of the Nullity of Marriage Act 1971 in section 11 (c) of the 1973 Act. Any enlargement of the meaning of those words to accommodate the problems faced by transsexuals would raise questions of fact and degree which are avoided by the use of the words chosen by Parliament. 59 I do not overlook the fact that Mrs BellingerÕs consultant urologist, Michael Royle, declared in a letter dated 5 January 1999 that she underwent gender reassignment surgery on 21 February 1981 and that ÔÔshe is physically femaleÕÕ. But it seems to me that this is an incomplete statement of the facts. The wording of section 11 (c) demands that they be subjected to a more rigorous assessment. In Secretary, Department of Social Security v SRA ( 1993 ) 118 ALR 467 it was held that the respondent, who was a pre- operative male to female transsexual, did not fall within the ordinary meaning of the word ÔÔfemaleÕÕ as her anatomical sex and her psychological sex had not been harmonised. One of the medical reports referred to by Lockhart J in the Federal Court of Australia, at p 477 , explained very clearly what the surgery seeks to achieve, and what it cannot do:
ÔÔGenetically, and anatomically she is a ÔmaleÕ, however, she dresses and behaves as a woman. She considers herself as a woman. It is not for me to decide what the court or the Department of Social Security chooses to consider someoneÑbut I do not think of, and treat [the respondent] as a woman. The fact that she has not had surgery to me is irrelevant. The aim of the surgery is to make somebody feel more comfortable with their body, not to Ôturn them into a womanÕ. The surgery does not supply the patient with a uterus, nor with ovaries. It is purely and simply an attempt to allow the personÕs body to approximate to how they feel within themselves.ÕÕ 60 Lockhart J said in the SRA case, at p 480 , that the common understanding of the words ÔÔwomanÕÕ and femaleÕÕ and the phrase ÔÔopposite sexÕÕ, which were ordinary English words, was a question of fact and that the crucial question was whether dierent conclusions were reasonably possible as to whether the facts or circumstances fell within their ordinary meaning. In In re Kevin (Validity of Marriage of Transsexual) [ 2001 ] Fam CA 1074 Chisholm J held that the ordinary contemporary meaning of the word ÔÔmanÕÕ according to its Australian usage included post-operative female to male transsexuals, and that no good reasons had been shown why the ordinary meaning of the word should not apply in the context of marriage law: paragraph 327. He went on to say that there was no formulaic solution for determining the sex of an individual for this purpose, that all relevant factors had to be considered including the personÕs biological and physical characteristics at birth, the personÕs life experiences, the extent to which the person has functioned in society as a man or woman, any hormonal, surgical
A B C D E F G H
[2003] 2 AC[2003] 2 AC Bellinger v Bellinger (HL(E))Bellinger v Bellinger (HL(E)) Lord Hope of CraigheadLord Hope of Craighead
which are absent from the ordinary meaning of the word ÔÔmaleÕÕ in this country. Any attempt to enlarge its meaning would be bound to lead to di±culty, as there is no single agreed criterion by which it could be determined whether or not a transsexual was su±ciently ÔÔmaleÕÕ for the purpose of entering into a valid marriage ceremony. 63 In Goodwin v United Kingdom 35 EHRR 447 , 474 , paras 82 Ð 83 the European Court of Human Rights noted that it remains the case, as the court held in She±eld and Horsham v United Kingdom 27 EHRR 163 , that a transsexual cannot acquire all the biological characteristics of the assigned sex. It went on to say that it was not apparent in the light of increasingly sophisticated surgery and hormonal techniques that the chromosomal element, which is the principal unchanging biological aspect of gender identity, must inevitably take on decisive signiÞcance for the purpose of legal attribution of gender identity for post-operative transsexuals. So it was not persuaded that the state of medical science or scientiÞc knowledge provided any determining argument as regards the legal recognition of transsexuals on grounds of social and legal policy. But this approach is not at all inconsistent with the view which I would take of the facts. The question which the court was asking itself was not whether the applicant, who was of the male sex when she was born, was now female. Post-operative transsexuals were assumed to fall into a distinct category. The question was whether it was a breach of their Convention rights for legal recognition to be denied to their new sexual identity. 64 Of course, it is not given to every man or every woman to have, or to want to have, children. But the ability to reproduce oneÕs own kind lies at the heart of all creation, and the single characteristic which invariably distinguishes the adult male from the adult female throughout the animal kingdom is the part which each sex plays in the act of reproduction. When Parliament used the words ÔÔmaleÕÕ and femaleÕÕ in section 11 (c) of the 1973 Act it must be taken to have used those words in the sense which they normally have when they are used to describe a personÕs sex, even though they are plainly capable of including men and women who happen to be infertile or are past the age of child bearing. I think that section 5 ( 4 )(e) of the Marriage (Scotland) Act 1977 , which provides there is a legal impediment to a marriage in Scots law where the parties ÔÔare of the same sexÕÕ, has to be read and understood in the same way. I do not see how, on the ordinary methods of interpretation, the words ÔÔmaleÕÕ and ÔÔfemaleÕÕ in section 11 (c) of the 1973 Act can be interpreted as including female to male and male to female transsexuals. 65 What then are we to make, in this case, of the decision in Goodwin v United Kingdom 35 EHRR 447? If it could be said that the use of the words ÔÔmaleÕÕ and ÔÔfemaleÕÕ in section 11 (c) of the 1973 Act was ambiguous, it would have been possible to have regard to that decision in seeking to resolve the ambiguity. But, for the reasons which I have given, I do not think that there is any such ambiguity. Then there is section 3 ( 1 ) of the Human Rights Act 1998 , which places a duty on the courts to read and give eect to legislation in a way that is compatible with the Convention rights if it is possible to do so. But we are being asked in this case to make a declaration about the validity of a marriage ceremony which was entered into on 2 May 1981 , and section 3 ( 1 ) of the 1998 Act is not retrospective: R v Lambert [ 2002 ] 2 AC 545 ; R v Kansal (No 2 ) [ 2002 ] 2 AC 69 ; R v Lyons [ 2003 ] 1 AC
A B C D E F G H
[2003] 2 AC[2003] 2 AC Bellinger v Bellinger (HL(E))Bellinger v Bellinger (HL(E)) Lord Hope of CraigheadLord Hope of Craighead
976 , 996 , per Lord Homann, and 1002 , para 63 , per Lord Hutton. The interpretative obligation which section 3 ( 1 ) provides is not available. 66 But I do not think that it would be right to leave the issue there. If, as I would hold, the 1981 ceremony cannot be held to be a valid marriage ceremony, that is not an end of the matter. It would be open to Mrs Bellinger to try again some other day. It must be emphasised that this is not what she wants to do, as she regards herself as having been happily married since
- But we have been asked to say whether the provisions of section 11 (c) are incompatible with her Convention rights and, if we Þnd that they are incompatible, to make a declaration of incompatibility. I agree that it is proper that we should undertake this exercise, although neither of these steps can have any eect on the validity or otherwise of the 1981 ceremony. 67 We cannot proceed to the making of a declaration of incompatibility under section 4 ( 2 ) of the Human Rights Act 1998 without examining the question which section 3 ( 1 ) of the Act treats as the logically prior question, which is whether the legislation can be read and given eect in a way which is compatible with the Convention rights. As Lord Steyn put it in R v A ( No 2 ) [ 2002 ] 1 AC 45 , 68dÐe, para 44 , a declaration of incompatibility is a measure of last resort. But the word ÔÔmustÕÕ which section 3 ( 1 ) uses is qualiÞed by the phrase ÔÔso far as it is possible to do soÕÕ. As I said in R v Lambert [ 2002 ] 2 AC 545 , 585bÐd, para 79 , the obligation, powerful though it is, is not to be performed without regard to its limitations. The obligation applies to the interpretation of legislation, which is the judgesÕ function. It does not give them power to legislate: see also In re S (Minors) (Care Order: Implementation of Care Plan) [ 2002 ] 2 AC 291 , 313bÐd, paras 38 Ð 39 , per Lord Nicholls of Birkenhead. 68 If the only problem of interpretation had been one of timing, on the view that section 11 (c) regards ÔÔmaleÕÕ and ÔÔfemaleÕÕ as something that cannot be changed after birth whereas other provisions in the same section such as section 11 (b) relate to the position at the time the marriage is entered into, I would have been prepared to read the words ÔÔat the time of the marriageÕÕ in to section 11 (c) so as to give that provision a meaning which was compatible with the article 12 Convention right. If the only obstacle was that the partiesÕ sex at the time when they were born had been assumed wrongly to be immutable, it could be overcome by disregarding the niceties of language and Þnding a compatible construction by reading these words in. But that would only have solved the problem for the future if it could indeed be said that Mrs Bellinger had completely changed her sex since birth and that she was now female. That, for the reasons I have sought to explain, is not a possible view of the facts. 69 Her problem would be solved if it were possible for a transsexual to marry a person of the same sex, which is indeed what the European Court of Human Rights has now held should be the position in Goodwin 35 EHRR 447. The court noted in para 100 of its judgment that article 9 of the Charter of Fundamental Rights of the European Union had departed ÔÔno doubt deliberatelyÕÕ from the wording of article 12 of the Convention in removing the reference to ÔÔmen and women of marriageable ageÕÕ. Article 9 of the Charter states simply that ÔÔthe right to marryÕÕ shall be guaranteed. The note to article 9 says that it neither prohibits nor imposes the granting of the status of marriage to unions between people of the same sex. It appears that the European Court saw that article as opening up the
A B C D E F G H
Bellinger v Bellinger (HL(E))Bellinger v Bellinger (HL(E)) [2003] 2 AC[2003] 2 AC Lord Hope of CraigheadLord Hope of Craighead
