bellinger (fc) (appellant) v. bellinger

8/10/2019 Bellinger (FC) (Appellant) v. Bellinger

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Derecho al matrimonio y a la familia Bellinger (FC) v. Bellinger 1

Bellinger (FC) (Appellant) v. Bellinger

[2003] U!" 2#

"$%D &'C!$"" $F B'%&!AD*y "or+,-

1. Can a person change the sex with which he or she is born? Stated in an over-simplified and question-begging form, this is the issue raised by this appeal. ore specifically, the question is whether the petitioner,rs !li"abeth #ellinger, is validly married to r ichael #ellinger. $n % ay 1&'1 r and rs #ellinger wentthrough a ceremony of marriage to each other. Section 1(c) of the *ullity of arriage +ct 1&1, re-enacted insection 11(c) of the atrimonial Causes +ct 1&, provides that a marriage is void unless the parties arerespectively male and female. /he question is whether, at the time of the marriage, rs #ellinger wasfemale within the meaning of that expression in the statute. 0n these proceedings she sees a declarationthat the marriage was valid at its inception and is subsisting. /he trial 2udge, 3ohnson 3, refused to mae thisdeclaration4 see 5%6617 1 89: '&. So did the Court of +ppeal, by a ma2ority of two to one4 see 5%6617!;C+ Civ 11


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having regard to all the factors 0 have listed. 0f every person has to be classified as either male or female,that is the best that can be done. /hat was the course, in line with medical opinion, followed by Charles 3 in; v ; (>hysical 0nter-sex) 5%6617 8am 111, 1


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the decision in Corbett seems not to have been challenged. #ut ;ard 93 suggested that the decision wouldbear re-examination.

1. /he decision in Corbett has attracted much criticism, from the medical profession and elsewhere. /hecriteria for designating a person as male or female are complex. 0t is too reductionistic to have regard onlyto the three Corbett factors of chromosomes, gonads and genitalia. /his approach ignores the compelling

significance of the psychological status of the person as a man or a woman. 8urther, the application of theCorbett approach leads to a substantially different outcome in the cases of a post-operative inter-sexualperson and a post-operative transsexual person, even though, post-operatively, the bodies of the twoindividuals may be remarably similar.

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the change taes place. /his point is not easily ascertainable. +t what point would it be consistent with publicpolicy to recognise that a person should be treated for all purposes, including marriage, as a person of theopposite sex to that which he or she was correctly assigned at birth? /his is a question for >arliament, notthe courts4 see 5%66%7 % ;9:


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establishes that gender re-assignment has been properly effected. #ut it found no 2ustification for barring thetranssexual from en2oying the right to marry under any circumstances4 para 16.

%arliamentary Secretary to the 9ord Chancellors=epartment noted that the interdepartmental woring group on transsexual people had been reconvened.0ts terms of reference include re-examining the implications of granting full legal status to transsexual peoplein their acquired gender. /he minister stated that the woring group had been ased to consider urgently theimplications of the Doodwin 2udgment.

%@. /he second development has an important bearing on the outcome of this appeal. $n 1 =ecember%66% the government announced its intention to bring forward primary legislation which will allowtranssexual people who can demonstrate they have taen decisive steps towards living fully andpermanently in the acquired gender to marry in that gender. /he legislation will also deal with other issuesarising from the legal recognition of acquired gender. + draft outline #ill will be published in due course.

%. /he third development was that before your 9ordships ouse counsel for the 9ord Chancellor acceptedthat, from the time of the Doodwin decision, those parts of !nglish law which fail to give legal recognition tothe acquired gender of transsexual persons are in principle incompatible with articles ' and 1% of theConvention. =omestic law, including section 11(c) of the atrimonial Causes +ct 1&, will have to change.

Dender reassignment%'. /he distinction between male and female exists throughout the animal world. 0t corresponds to thedifferent roles played in the reproductive process. + male produces sperm which fertilise the females eggs.0n this country, as elsewhere, classification of a person as male or female has long conferred a legal status.0t confers a legal status, in that legal as well as practical consequences follow from the recognition of aperson as male or female. /he legal consequences affect many areas of life, from marriage and family lawto gender-specific crime and competitive sport. 0t is not surprising, therefore, that society through its lawsdecides what ob2ective biological criteria should be applied when categorising a person as male or female.0ndividuals cannot choose for themselves whether they wish to be nown or treated as male or female. Self-

definition is not acceptable. /hat would mae nonsense of the underlying biological basis of the distinction.

%&. /his approach did not give rise to legal difficulty before the advent of gender reassignment treatment./his was noted by 9ord :eed in his article Splitting the difference4 transsexuals and !uropean uman:ights law (September %666). Dender identity disorder seems always to have existed. #ut before theadvent of gender reassignment treatment a claim by a transsexual person to be recognised in his or herself-perceived gender would have been hopeless. /he anatomy of his or her body of itself would haverefuted the claim.

6. /he position has now changed. :ecognition of transsexualism as a psychiatric disorder has beenaccompanied by the development of sophisticated techniques of medical treatment. /he anatomical

appearance of the body can be substantially altered, by forms of treatment which are permissible as well aspossible. 0t is in these changed circumstances that society is now facing the question of how far it isprepared to go to alleviate the plight of the small minority of people who suffer from this medical condition.Should self-perceived gender be recognised?

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1. :ecognition of gender reassignment will involve some blurring of the normally accepted biologicaldistinction between male and female. Some blurring already exists, unavoidably, in the case of inter-sexualpersons. ;hen assessing the gender of inter-sexual persons, matters taen into account include self-perception and style of upbringing and living. :ecognition of gender reassignment will involve furtherblurring. 0t will mean that in law a person who, unlie 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.

%. /hus the circumstances in which, and the purposes for which, gender reassignment is recognised arematters of much importance. /hese are not easy questions. /he circumstances of transsexual people varywidely. /he distinction between male and female is material in widely differing contexts. /he criteriaappropriate for recognising self-perceived gender in one context, such as marriage, may not be appropriatein another, such as competitive sport.

. Stated very shortly, this is the setting for the legal issues arising on this appeal, to which 0 now turn.

Dender and marriage4 part of a wider problem


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submitted that wherever the line maring the transition from one sex to the other is to be drawn, rs#ellinger is on the reassigned gender side of the line.


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distinction is drawn between people on the basis of gender. /hese areas include education, child care,occupational qualifications, criminal law (gender-specific offences), prison regulations, sport, the needs ofdecency, and birth certificates. #irth certificates, indeed, are one of the matters of most concern totranssexual people, because birth certificates are frequently required as proof of identity or age or place ofbirth. ;hen, and in what circumstances, should these certificates be capable of being reissued in a revisedform which does not disclose that the person has undergone gender reassignment?

rayer of 1@@% declared that the first cause for which matrimony wasordained was the procreation of children. 8or centuries this was proclaimed at innumerable marriageservices. 8or a long time now the emphasis has been different. Iariously expressed, there is much moreemphasis now on the mutual society, help and comfort that the one ought to have of the other.

arliament when the forthcoming #ill is introduced.

=eclaration of incompatibilityA6. rs #ellinger advanced a further, alternative claim for a declaration that in so far as section 11(c) of theatrimonial Causes +ct 1& maes no provision for the recognition of gender reassignment it isincompatible with articles ' and 1% of the Convention. er claim is advanced on the footing that, althoughshe and r #ellinger celebrated their marriage long before the uman :ights +ct 1&&' came into force, andalthough the Doodwin decision dealt with the human rights position as at the date of the 2udgment (3uly%66%), the non-recognition of their ability to marry continues to have adverse practical effects. /he statutecontinues to prevent them marrying each other.

A1. r Sales advanced several arguments on why such a declaration should not be made. /here is, he

submitted, no present incompatibility between the statute and the Convention. /he !uropean Court ofuman :ights, in its decision in Doodwin, envisaged that the government should have a reasonable periodin which to amend domestic law on a principled and coherent basis. /he court said it will be for the EnitedHingdom Dovernment in due course to implement such measures as it considers appropriate to fulfil itsobligations4 see (%66%) A !:: 1', , paragraph 1%6 (emphasis added).

A%. 0 cannot accept this submission. 0t may be that, echoing the language of the !uropean Court of uman:ights in arcx v #elgium (1&&) % !:: 6, A, para A', the principle of legal certainty dispenses theEnited Hingdom government from re-opening legal acts or situations which antedate the 2udgment inDoodwin. #ut that is not the present case. 0n the present case section 11(c) of the atrimonial Causes +ct1& remains a continuing obstacle to r and rs #ellinger marrying each other.

A. 0t may also be that there are circumstances where maintaining an offending law in operation for areasonable period pending enactment of corrective legislation is 2ustifiable. +n individual may not then be

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able, during the transitional period, to complain that his rights have been violated. /he admissibility decisionof the court in ;alden v 9iechtenstein (+pp no &1@J&@) is an example of this pragmatic approach to thepracticalities of government. #ut the question now under consideration is different. 0t is more general. /hequestion is whether non-recognition of gender reassignment for the purposes of marriage is compatible witharticles ' and 1%. /he answer to this question is clear4 it is not compatible. /he !uropean Court of uman:ights so found in 3uly %66% in Doodwin, and the government has so accepted. ;hat was held to beincompatible in 3uly %66% has not now, for the purposes of section


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described as a sex change, the process is inevitably incomplete. + complete change of sex is, strictlyspeaing, unachievable.

A'. 0t is tempting to regard the fact that a complete sex change is unachievable as a mere technicality whenthis is compared with everything else that can be achieved in the case of post-operative transsexuals. #utthe law of marriage exists in order to define the circumstances in which the public status that follows from a

valid marriage may be acquired. /here is much to be said for the view that the words LmaleM and LfemaleMshould each be given a single, clear meaning that can be applied uniformly in all cases. /hat was achievedby the decision in Corbett v Corbett 51&17 > ', which pre-dated the re-enactment of section 1(c) of the*ullity of arriage +ct 1&1 in section 11(c) of the 1& +ct. +ny enlargement of the meaning of those wordsto accommodate the problems faced by transsexuals would raise questions of fact and degree which areavoided by the use of the words chosen by >arliament.

A&. 0 do not overloo the fact that rs #ellingers consultant urologist, ichael :oyle, declared in a letterdated A 3anuary 1&&& that she underwent gender reassignment surgery on %1 8ebruary 1&'1 and that Lsheis physically female.M #ut it seems to me that this is an incomplete statement of the facts. /he wording ofsection 11(c) demands that they be sub2ected to a more rigorous assessment. 0n Secretary, =epartment of

Social Security v S:+ (1&&) 11' +9:


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L116. /he definition of marriage is essentially connected with the term man. 0n these circumstances, for thereasons stated by the trial 2udge as amplified by our reasons that appear subsequently, we tae the viewthat the words marriage and man are not technical terms and should be given their ordinary contemporarymeaning in the context of the arriage +ct.

111. 0n our view, it thus becomes a question of fact as to what the contemporary, everyday meanings of the

words marriage and man are respectively.

11%. 0t is then a question of law for this court to determine whether, on the facts found by the trial 2udge, itwas open to him to reach the conclusion that he did, namely that at the relevant time, Hevin was a man andthat the marriage was therefore valid. +s it was in S:+ (supra) so, too, it is that the answer to that question isat the heart of the present case.M

@%. 0 need hardly say that 0 entirely agree with the +ustralian 2udges that the words LmaleM and LfemaleM insection 11(c)of the 1& +ct, which is the provision with which we are faced in this case, are not technicalterms and that they must be given their ordinary, everyday meaning in the !nglish language. #ut noevidence was placed before us to suggest that in contemporary usage in this country, on whichever date

one might wish to select - % ay 1& when the 1& +ct was enacted, % ay 1&'1 when r and rs#ellinger entered into their marriage ceremony or the date of this 2udgment, these words can be taen toinclude post-operative transsexual persons. /he definition of LmaleM in the *ew Shorter $xford !nglish=ictionary (1&&) tells us that its primary meaning when used as an ad2ective is Lof, pertaining to, ordesignating the sex which can beget offspringM. *o mention is made anywhere in the extended definition ofthe word of transsexual persons. /he word LtranssexualM is defined as Lhaving the physical characteristics ofone sex but a strong and persistent desire to belong to the other.M 0 see no escape from the conclusion thatthese definitions, with which the decision in Corbett v Corbett 51&17 > ' and the views of the ma2ority in theCourt of +ppeal in this case are consistent, are both complete and accurate. /he fact is that the ordinarymeaning of the word LmaleM is incapable, without more, of accommodating the transsexual person within itsscope. /he +ustralian cases show that a distinction has to be drawn, even according to the contemporary

usage of the word in +ustralia, between pre-operative and post-operative transsexuals. =istinctions of thatind raise questions of fact and degree which are absent from the ordinary meaning of the word LmaleM inthis country. +ny attempt to enlarge its meaning would be bound to lead to difficulty, as there is no singleagreed criterion by which it could be determined whether or not a transsexual was sufficiently LmaleM for thepurpose of entering into a valid marriage ceremony.

@. 0n Doodwin v Enited Hingdom (%66%) A !:: 1', %


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have when they are used to describe a persons sex, even though they are plainly capable of including menand women who happen to be infertile or are past the age of child bearing. 0 thin that section A(


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!uropean Enion had departed Lno doubt deliberatelyM from the wording of article 1% of the Convention inremoving the reference to Lmen and women of marriageable age.M +rticle & of the Charter states simply thatLthe right to marryM shall be guaranteed. /he note to article & says that it neither prohibits nor imposes thegranting of the status of marriage to unions between people of the same sex. 0t appears that the !uropeanCourt saw that article as opening up the possibility of transsexuals marrying persons of the opposite sex totheir post-operative acquired gender, as it rendered arguments about whether they were in act of theopposite sex irrelevant. #y this route, which bypasses the physical problems which are inherent in the notionof a complete sex change, legal recognition can be given to the acquired gender of post-operativetranssexuals. #ut it is quite impossible to hold that section 11(c) of the 1& +ct treats the sex of the partiesto a marriage ceremony as irrelevant, as it maes express provision to the contrary. 0n any event, problemsof great complexity would be involved if recognition were to be given to same sex marriages. /hey must beleft to >arliament. 0 do not thin that your 9ordships can solve the problem 2udicially by means of theinterpretative obligation in section (1) of the 1&&' +ct.

6. So 0 too would dismiss the appeal. #ut 0 too would mae a declaration that section 11(c) of theatrimonial Causes +ct 1& is incompatible with rs #ellingers right to respect for her private life underarticle ' and with her right to marry under article 1% of the !uropean Convention for the >rotection of uman

:ights and 8undamental 8reedoms.

9$:= $#$ES! $8 ;$$=#$:$EDy 9ords,1. 0 agree with my noble and learned friends 9ord *icholls of #irenhead and 9ord ope of Craighead thatthe appeal should be dismissed but that a declaration of incompatibility should now be made under s.< ofthe uman :ights +ct 1&&'.

%. /he parties went through a ceremony of civil marriage before a registrar of marriages under thearriage +ct 1&


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in their assigned gender than recognise the change of gender itselfM. owever the Court concluded thatthere had been a breach of, inter alia, +rticle 1% because, although the ember States must be given areasonable opportunity to decide how to revise their national legislation and mae the appropriate changes,there came a time when the Enited Hingdoms continued failure to do so amounted to a denial of the right tomarry protected by +rticle 1%4 see paragraphs A%, A, 16%-


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was wrongly decided nor that the EH was not under a treaty obligation to comply with it. #ut, effectivelyrepeating arguments made unsuccessfully in Strasbourg, submitted that the ouse should not exercise itsdiscretion under s.< having regard to the difficulty of deciding upon new policies and drafting new legislation./hese difficulties exist but much time has elapsedN the ;oring Droup reported in +pril %666N the Court of+ppeal commented as strongly as it was proper for them to do so at the lac of progress in 3uly %661 andthe !Ct: has made its decision in Doodwin on the basis that the permitted time for compliance hasexpired. /he argument for further time is now itself incompatible with the rights conferred by the Convention.

&. #ut counsel also argued that, in view of his concession that Doodwin bound the Enited Hingdom, anydeclaration would be academic and its purpose was merely to confer a power to expedite legislation unders.16. /hese arguments must be re2ected. /he +ppellant and r #ellinger in exercise of their rights under+rticle 1% would wish to enter into a valid marriage as soon as the EH legislation enables them to do so.$thers may wish to do the same. /he Dovernment can not yet give any assurance about the introduction ofcompliant legislation. /here will be political costs in both the drafting and enactment of new legislation andthe legislative time it will occupy. /he incompatibility having been established, the declaration under s.

bellinger (fc) (appellant) v. bellinger

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