NOTES OF CASES
| Date | 01 July 1988 |
| Published date | 01 July 1988 |
| DOI | http://doi.org/10.1111/j.1468-2230.1988.tb01770.x |
NOTES
OF
CASES
TRANSSEXUALS
AND
SEXUAL IDENTW
THE
attitude of the European Court
of
Human Rights towards the
determination
of
the sexual identity of post-operative transsexuals
in Great Britain was expressed in
Rees
v.
United Kingdom.’
In
spite of a majority judgment finding that the United Kingdom had
not actually contravened the European Convention of Human
Rights, there appears to be a certain reluctance on the part of the
European Court
to
approve unequivocally the existing approach to
the subject by the English courts. Before examining the
Rees
decision it is appropriate, first to briefly consider transsexualism
and the notion of a “sex-change”, and thereafter the existing
English law on point.
Transsexualism or the
gender dysphoria syndrome
is a rare
psychological condition recognised by the medical profession.2 A
transsexual believes that he/she is a member of the opposite
sex
trapped in the wrong biological body. The syndrome may manifest
itself in various neurotic or psychotic forms, leading even to suicide
in extreme cases. Most medical specialists consider that the only
relief for the condition
is
to align the transsexual’s body with his
psychological gender by way of “sex-change’’ surgery and hormonal
treatment. After “sex-change’’ procedures the transsexual takes on
the form
of
hidher post-operative sex. Although capable of having
sexual intercourse in the same physical manner
of
their post-
operative sex, transsexuals are incapable
of
procreation. “Sex-
change” surgery is irreversible and presents a high percentage risk
factor to the health of the transsexual, as does the hormonal
treatment.
English law on the sexual identity
of
a post-operative transsexual
Although the subject has been raised in Parliament, there is no
legislation concerning the determination of the sexual identity of
post-operative
transsexual^.^
It has been left to the court to decide
the issue as cases have arisen. There are two major English
decisions on the subject.
’
Eur. Court H.R.,
Rees
judgment
of
October 17, 1986, Series
A
106.
*
See
infer alia:
Howard
W.
Jones, “Operative Treatment
of
the Male Transsexual”
and John
E.
Hoopes, “Operative Treatment
of
the Female Transsexual” in
Transsexualism
and Sex-Reassignment
(edited by R. Green and
J.
Money 1969) at p.313
et
seq.
en 335
er
seq.
respectively and;
S. S.
Ratnam and
S.
M. Lim, “Surgical treatment
of
transsexualism,”
in
Progress
in Obstetrics and Gynaecology
(edited by John Studd, 1982) Volume Two at
p.22
et
seq.
(197C1971) 810
Hansard
Cols.
1175-1177 and (1970-1971) 814
Hamard
Col.
1829
er
seq.
502
JULY
19881
NOTES
OF
CASES
503
The first, Corbett
v.
Corbett (orse A~hley),~ is a decision
of
Ormrod
J.
(as he then was). The case concerned the validity
of
a
marriage entered into between the petitioner, a biological male and
the respondent, April Ashley, a post-operative female. The Court
held that for purposes
of
the law
of
marriage, the sexual identify
of
a party was to be decided solely
on
biological factors, more
particularly, the congruence, as at birth, of the relevant person’s
chromosomes, gonads and genitalia, i.e. the Ormrod test. It should
be pointed out that, although the medical specialists giving evidence
in the case considered psychological gender to be a factor in the
medical determination
of
sexual identity, this was totally ignored
by the Court. On an application of the Ormrod test April Ashley
was found to be a male, accordingly the alleged marriage was held
null and void.
The relevant aspects
of
the second decision
R.
v. Tan and
Others’ concerned charges
of
contravening section
30
of
the Sexual
Offences Act
1957
against one of the accused in the case, Gloria
Greaves, a transsexual and post-operative female. Section
30
provides inter
alia
that:
“(1)
It is an offence for a man knowingly to live wholly or in
part
on
the earnings of prostitution.”
The defence relied upon by Gloria Greaves was that she was a
female and accordingly could not be convicted
of
the offence. She
had been born a biological male, but had undergone “sex-change’’
procedures in the usual form
of
plastic surgery and hormonal
treatment. She considered herself a female in all respects and was
regarded as such by others.
For
the past
20
years she had been
recognised as a female for national insurance purposes. Further she
had gone through a ceremony
of
marriage with a man, Brian
Greaves, who at all times considered her as a female. Despite her
counsel’s plea to the Court
of
Appeal to ignore the Corbett
decision for purposes
of
the criminal law, the Court applied the
Ormrod test as formulated in the earlier case. The Court, per
Parker
J.,
held that
“. . . both common sense and the desirability of certainty and
consistency demand that the decision in Corbett v. Corbett
should apply for the purpose, not only
of
marriage, but also
for a charge under
s.30
of
the Sexual Offences Act . .
.”6
Thus biological criteria alone in determining sexual identity were
approved by the Court
of
Appeal. Both Corbett and
R.
v. Tan
have been reviewed critically elsewhere.’ It remains only to note
the unfortunate consequence
of
these decisions, more particularly
[1971]
P.
83.
5
rig831
Q.B.D.
1053
CA.)
.I
6
At
p.io64c.
’
Inter alia:
I.
M.
Kennedy, “Transsexualism and Single Sex Marriage” (1973)
2
Anglo-
American Law Review
112 and
P.
J.
Pace, “Sexual Identity and
the
Criminal Law”
(1983) Crim.L.R. 317.
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