J v S-T (Formerly J) (Transsexual: Ancillary Relief)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WARD,LORD JUSTICE POTTER,SIR BRIAN NEILL |
| Judgment Date | 21 November 1996 |
| Judgment citation (vLex) | [1996] EWCA Civ J1121-6 |
| Docket Number | FAFMI 96/0245/F |
| Court | Court of Appeal (Civil Division) |
| Date | 21 November 1996 |
[1996] EWCA Civ J1121-6
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
FAMILY DIVISION
(MR JUSTICE HOLLIS)
Royal Courts of Justice
Strand
London W2A 2LL
Lord Justice Ward
Lord Justice Potter
Sir Brian Neill
FAFMI 96/0245/F
MR B EMMERSON (instructed by Messrs Tyndallwoods, Birmingham) appeared on behalf of the Appellant (Defendant).
MISS S MULHOLLAND (instructed by Messrs thomas Eggar Verral Bowles, Horsham, West Sussex) appeared on behalf of the Respondent (Plaintiff).
The preliminary issue directed to be tried in this case was whether the Defendant should be debarred from continuing his claim for ancillary relief on the ground that it is contrary to public policy. His claim was made following a decree of nullity granted to the Plaintiff on 20th December 1994 declaring the marriage solemnised between the parties to have been void by reason of the fact that at the date of the ceremony the Defendant, a female to male transsexual, was not by law a male. On 25th January 1996 Hollis J. ruled that the question be answered in the affirmative and he dismissed the Defendant's claims. It is against that Order that the Defendant now appeals with the Judge's leave.
THE FACTS
It is essentially a sad story. I, like the judge, have sympathy for both parties as each has suffered greatly, albeit in completely different ways.
The Defendant, for whom I use the male pronoun, was born into a modest home in the north of England. He was registered at birth as a girl named Wendy. It is not disputed that at birth he had the chromosomal, gonadal and genital features of the female sex. He was never at ease in that sex and increasingly acted and dressed as a boy. Aged 14, when in trouble with the police, he gave the false name Michael which he has ever since adopted. There followed some, but it is unclear what, psychiatric intervention. We now know that he was born with a recognised Gender Identity Dysphoria—transsexualism. By the age of 17 he was living as and had become socially accepted as a male. He was attracted by and attractive to the female sex and at the age of about 20 began the first of two quite long relationships with women. It must have been about this time that he used an improvised prosthesis to engage in sexual intercourse. It was a rigid device which he wore more or less permanently. In 1972, at the age of about 26, and whilst in the course of his second relationship, he suffered a period of severe depression, feeling trapped in a body 'that was not mine' and 'unable to go on living'. After intensive psychiatric counselling, he was given a course of injections of testosterone which led to the development of secondary male characteristics including the growth of a beard. As he said in his statement:—
"These painful injections began to transform me; my voice broke, my breasts shrank. I began to look like a man. At the same time my depression eased, and I felt a tremendous sense of relief."
A letter from the Consultant Psychiatrist, Dr Fleming, dated 19th October 1973, survives. Dr Fleming reported:—
"There is no doubt at all that this is a case of true transsexualism with the patient behaving, thinking and feeling in every way as a normal male. The patient's interests have always been of a masculine nature both before and after puberty with normal sexual feelings towards females. In my experience the only hope of any improvement in a case of this sort is by re-registration as a male. The patient has for a long time selected the Christian names Michael Paul and has requested bilateral mastectomy. The patient is 27 years of age…and for some considerable time has courted a woman … whom she hopes to marry once her name has been changed by the appropriate department…"
Dr Fleming supported the Defendant's request for his driving licence and National Insurance records to show his new name but his birth certificate could not be and was not altered. He referred the Appellant for a bilateral mastectomy which was performed in December 1973. It was such a difficult operation that the Defendant never underwent the further recommended surgical procedure of phalloplasty for the construction of a penis. Physically, therefore, his body was scarred from the removal of his breasts, he retained the large nipples of a woman, and, more relevantly, the genital organs of a woman but to all other intents and purposes in his attitude of mind and behaviour he was a man. To make a new start in life he moved to London and it was in the Home Counties that, in December 1977, he met the Plaintiff.
In stark contrast to the humble circumstances into which the Defendant had been born and in which he had lived, the Plaintiff's background was one of wealth and privilege. She was 19 years old—11 years his junior—when they met and was an unhappy theology undergraduate disaffected with University. She had taken a vacation job at the public house at which the Defendant was the assistant manager. It was common ground that she had no real sexual experience but within a short time of their meeting they began an intimate relationship. They had sexual intercourse in which the Defendant was able to engage using his false penis. They began to live together and on 7th July 1977 went through a ceremony of marriage despite opposition from the Plaintiff's family.
In 1985 they were able to persuade a fertility clinic to provide artificial insemination by donor sperm for the Plaintiff. The result was that in 1987 she gave birth to a son and in 1992, following further treatment, to a daughter. The apparent ease with which they were able to obtain this treatment without the truth being disclosed or discovered is, for me, one of the puzzling and, I feel bound to add, unsatisfactory features of this case.
The relationship began to break down and in April 1994 the Plaintiff presented a Petition for Divorce alleging that the Respondent 'husband' had behaved in such a way that she could not reasonably be expected to live with him. The proceedings were defended. The relationship degenerated further to the extent that the Plaintiff applied for an injunction to exclude the Defendant from the matrimonial home. On 22nd May 1994 shortly before the hearing of this application, there was a serious argument between them, the detail of which will again be examined later, but the gist of which for the purpose of this narrative, related to the Defendant's manhood. According to the Plaintiff, he undid his trousers and exposed his artificial penis, asking whether that was not good enough for her to which she retorted, 'It's not real'. On 23rd May 1994 the Plaintiff confided to an old school friend who happened to be a private investigator that there were 'peculiarities about Michael's physique; his nipples, the scars under his arms, the fact that he used an artificial penis and the (blood stains) upon his underpants' and of her belief that he was not very well endowed or even sexually deformed. The friend took rapid action and on 25th May informed the Plaintiff that in fact the Defendant had been born a girl. At the hearing of the injunction the following day a copy of the Defendant's birth certificate was produced in Court and, as the Judge found, 'at the sight of it the Defendant more or less collapsed.' This information appears to have been no less shattering to the Plaintiff who, at the time of the hearing before Hollis J. twenty months later, was still receiving counselling for the shock it gave her.
This bombshell changed the course of the proceedings. The Defendant gave undertakings to vacate the matrimonial home which he did the following day. Directions were given for his pending application in the divorce proceedings for contact to the children to be treated as a free-standing application under the Children Act 1989 and the Official Solicitor was appointed as Guardian ad Litem to the children. That application was decided by the President, the Rt. Hon. Sir Stephen Brown, who found on 18th May 1995 that in the particular circumstances of the case, the high degree of acrimony and hostility exceptionally justified the termination of 'father's' contact to the children. In the course of his judgment he commented, and the Defendant relies on the observations:—
"It is a curious story on any account, and it is an extraordinary feature of this case that the Applicant himself acknowledges that the situation was never discussed. He maintains that from an early stage the mother did know that he was a woman; indeed he says she had placed her fingers into his vagina. That is denied by the mother. It is not easy to form a view as to what is the truth of that matter. I am not in a position to make a finding on that particular incident. What is quite clear is that they continued their relationship in the succeeding years and that this situation was apparently never discussed between them. It is clear that the Applicant could not have appeared to the mother as—if one might so term it—a 'full blooded' male. He did not have the organs of a male and there were obvious signs on his body which indicated that he was in no sense a normal biological male."
Later in the Judgment he said:—
"It is not possible for me to make specific findings on the evidence that I have heard as to how much the mother did in fact know of the condition and gender of Mr J. I believe that the discovery of the Birth Certificate did have an effect upon her. It would seem that there must have been signs which should at least have prompted discussion but apparently, and according to both parties, this never took place. However the sight of the Birth Certificate appears to have...
To continue reading
Request your trial
-
Rampal v Rampal
...on the decision of this court in Whiston v Whiston [1995] Fam 198. Having reviewed that authority as well as the later case of S-T (formerly J) v J [1998] Fam 103, Hogg J noted that there was an unresolved issue as to whether the wife was also 'guilty of being a secondary party to the offen......
-
Foy v an T-Ard Chlaraitheoir and Others
...conclusion previously reached in this judgment. 322 (131) The last English case which I wish to refer to is S - T (formally) J-v-J [1998] 1 All E.R. 431. That case I mention essentially because it formed part of the submissions in the instant case. Though it dealt with a female to male tran......
-
W v W (Nullity)
...3 WLR 34. Sheffield and Horsham v UK[1998] 3 FCR 141, (1998) 27 EHRR 163, [1998] 2 FLR 928, ECt HR. ST v J (transsexual: void marriage) [1997] 1 FCR 349; sub nom S-T (formerly J) v J [1999] Fam 103; sub nom S-T (formerly J) v J [1998] 1 All ER 431, [1997] 3 WLR 1287; sub nom J v S-T (former......
-
J v C (Void marriage: Status of children)
...by a donor? The judge found that he was not. A full exposition of the background facts could be found in S-T (formerly J) v JELR ((1998) Fam 103). In 1977 Mr J and Mrs C went through a ceremony of marriage. Although living as a man for the previous 13 years, he was at the date of the marria......
-
Standards of Proof in Civil Litigation
...Lordsin Blyth vBlyth this was a rather incautious comment. But cf Ward LJ’s claim in JvS-T (Formerly J)(Transsexual: Ancillary Relief) [1998] 1 All ER 431, 452: ‘[i]n [Re H] the House of Lords wasunanimous in its opinion that the standard of proof in all civil proceedings is the ordinary ci......
-
A Return To The `Truth' Of The Past
...2 FCR 355MT v JT (1976) 355 A 2d 204Re Kevin and Jennifer v Attorney-General for the Commonwealth [2001] FamCA1074ST (formerly J) v J[1998] 1 All ER 431REFERENCESBracton, H. (1997) On the Laws and Customs of England 1240–1260. London:William S. Hein & Co.Cooper, D. (2001) ‘Like Counting Sta......
-
Transgender Marriage and the Legal Obligation to Disclose Gender History
...‘From Parody to Politics: Bodily Inscriptions and Performative Subversions in theCrying Game’ (1995) 1 Cr itical inQueeries 47–68.30 [1998] 1 All ER 431.31 ibid, 439.32 ibid, 456.33 A. Gross,‘Gender Outlaws before the Law: the Courts of the Borderlands’(2009) 32 HarvJLandGender 165–231, 199......