Bellinger v Bellinger

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeRobert Walker LJ,THORPE LJ
Judgment Date17 July 2001
Neutral Citation[2001] EWCA Civ 1140
Date17 July 2001
Docket NumberCase No: B1/2000/3493

[2001] EWCA Civ 1140

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE FAMILY DIVISION

(MR JUSTICE JOHNSON)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The President

Lord Justice Thorpe

Lord Justice Robert Walker

Case No: B1/2000/3493

Elizabeth Ann Bellinger
Appellant
and
Michael Jeffrey Bellinger
Respondent

Miss L. Cox QC and Miss A. Bayston (instructed by Law for All for the Appellant)

Mr A. Moylan QC and Mr T. Amos (instructed by the Attorney General as Intervenor)

Robert Walker LJ

Dame Elizabeth Butler-Sloss, President and

1

This is an appeal, with leave of the Court of Appeal, by the appellant, Mrs Bellinger, from the refusal of Johnson J on the 2 nd November 2000 to grant her petition for a declaration that the marriage celebrated between Mr Bellinger and herself was valid at its inception and is subsisting. The reason for the judge's refusal to grant the declaration was that the appellant was at the time of the marriage ceremony, and still remains, male. Mr Bellinger was the respondent to the petition, which he did not oppose. The Attorney General intervened, filed an answer and opposed the granting of the declaration.

2

Behind those bare facts lies a human problem, which deeply affects a small minority of the population. In considering the difficult medical and legal issues facing this Court, admirably encapsulated in the written and oral submissions of Miss Cox QC for the appellant and Mr Moylan QC for the Attorney General, we are very much aware of the plight of those who, like the appellant, are locked into the medical condition of transsexualism, within the group described as gender dysphoria or gender identity disorder.

The History

3

The appellant was born on the 7 th September 1946 and was at birth correctly classified as male. However, from as long as she could remember, she felt more inclined to be female. Despite her inclinations, and under some pressure, at the age of 21 she married a woman. The marriage broke down and they divorced in 1971. After the divorce she began to dress as and live as a woman. She went through the various stages of treatment (which are set out below), and finally underwent gender reassignment surgery which was completed in 1981. On the 2 nd May 1981 she went through a ceremony of marriage with Mr Bellinger, a widower. He was at all times aware of the appellant`s background and was entirely supportive of her. The appellant was described on her marriage certificate as a spinster but apart from that she was not asked by the Registrar of Marriages, nor did she volunteer any information, about her gender status. The couple have lived together ever since as husband and wife. The appellant petitioned for the declaration under section 55 of the Family Law Act 1986. The Attorney General intervened under the provisions of section 59(2) of the same Act.

Medical Condition of the Appellant

4

There is no suggestion now that the appellant was incorrectly assigned to be male at birth, nor that she falls within the group described as inter-sexed. From the medical evidence it is clear that the appellant was correctly assigned at birth as male. The appellant felt an increasing urge to live as a woman rather than as a man. She first consulted Dr Randall, a consultant psychiatrist at the Charing Cross Hospital, with special expertise in this area of medicine. She had a long course of counselling and hormonal treatment and, in February 1981, she underwent reconstruction surgery, which involved the removal of her testicles and penis and, as Johnson J expressed it:

"…the creation of an orifice which can be described as an artificial vaginal, but she was still without uterus or ovaries or any other biological characteristics of a woman."

5

The report on a chromosomal test, dated the 8 th April 1999, showed her to have a Karyotype: 46, XY pattern, an apparently normal male Karyotype. She clearly comes within the diagnosis of gender disorder and she is a transsexual. She has completed the four stages of change from male to female.

6

The background to the issue raised by the appellant is the current understanding of the meaning of 'marriage'. Lord Penzance, in Hyde v Hyde (1866) L.R. 1P&D 130, gave, at page 133, the classic definition of a Christian marriage:

"I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others."

7

Although that definition can no longer be taken as correct in all particulars, since those married can now bring their marriages to an end during their lifetime, Ormrod J in Corbett v Corbett [1971] P 83 said that sex was an essential determinant of marriage, because:

"it is and always has been recognised as the union of man and woman."

8

In refusing to make the declaration sought by the appellant, Johnson J considered extensive written medical evidence from three distinguished experts in the field of gender identity disorder. They were largely in agreement and no oral evidence was given. The judge accepted that, since Corbett in 1970, there has been a marked change in social attitudes to problems of those in the situation of the appellant. He concluded:

"There is now a distinct possibility that were it possible to do so, examination of the brain of a living individual would reveal further indications of gender. But that is not yet possible and the practical reality is that whatever may ultimately emerge from advances in medical science, the only criteria for determining the gender of an individual remain those identified in Corbett."

9

He therefore decided that the medical criteria, set out by Ormrod J in Corbett, remained equally valid today, and that under those criteria the appellant was unable to marry Mr Bellinger. He dismissed her petition.

Corbett v Corbett

10

The facts in Corbett have some similarities to the present case. The respondent had been registered at birth in 1935 as male, and had served in the Merchant Navy, which he left after taking an overdose of tablets. After taking hormonal treatment for some years and working as a female impersonator, he underwent, in 1960 in Casablanca, reconstruction surgery, and thereafter changed his name and lived as a woman. In September 1963, the respondent went through a ceremony of marriage with the petitioner, a man, who knew the respondent's background. The 'marriage' was not a success, and in December 1963, the petitioner petitioned for nullity based on the ground that the respondent was male. The judge granted a decree of nullity.

11

Nine medical experts gave evidence at the hearing and the judge said at page 100:

"All the medical witnesses accept that there are at least four criteria for assessing the medical condition of an individual. These are:

a) Chromosomal factors.

b) Gonadal factors (i.e. presence or absence of testes or ovaries).

c) Genital factors (including internal sex organs).

d) Psychological factors.

Some of the witnesses would add:

e) Hormonal factors or secondary sexual characteristics (such as distribution of hair, breast development, physique etc, which are thought to reflect the balance between the male and female sex hormones in the body).

It is important to note that these criteria have been evolved by doctors, for the purposes of systematising medical knowledge and assisting in the difficult task of deciding the best way of managing the unfortunate patients who suffer, either physically or psychologically, from sexual abnormalities. As Professor Dewhurst observed, "we do not determine sex in medicine we determine the sex in which it is best for the individual to live." These criteria are, of course, relevant to, but do not necessarily decide, the legal basis of sex determination."

12

Earlier in his judgment, Ormrod J considered the aetiology of transsexualism and at page 99 he referred to:

"…the alternative view is that there may be an organic basis for the condition. This hypothesis is based upon experimental work… which suggests that the copulatory behaviour of the adult animals may be affected by the influence of certain sex hormones on particular cells in the hypothalamus…At present the application of this work to the human being is purely hypothetical and speculative… The use of such phrases as 'male or female brain' in this connection is apt to mislead owing to the ambiguity of the word 'brain'…In my judgment these theories have nothing to contribute to the solution of the present case."

13

He said at page 104:

"It is common ground between all the medical witnesses that the biological sexual constitution of an individual is fixed 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. The respondent's operation, therefore, cannot affect her true sex. The only cases where the term "change of sex" is appropriate are those in which a mistake as to sex is made at birth and subsequently revealed by further medical investigation."

14

The finding by Ormrod J that the biological sexual constitution of an individual was fixed at birth is said by Miss Cox no longer to reflect the true position.

15

Ormrod J concluded at page 106:

"Since marriage is essentially a relationship between man and woman, the validity of the marriage in this case depends, in my judgment, upon whether the respondent is or is not a woman. I think, with respect, that this is a more precise way of formulating the question than that adopted in paragraph 2 of the petition, in which it is alleged that the respondent is a male. The greater, of course, includes the less, but the distinction...

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