Bellinger v Bellinger
Facts
When Elizabeth Ann Bellinger was born in 1946, she was assigned male. Despite this, since her earliest memories she had identified as a female. Bellinger suppressed these feelings, marrying a woman through external pressure when she was 21 in 1967. In 1973, shortly after the marriage ended in divorce in 1971, she consulted Dr Randell, a psychiatrist at Charing Cross Hospital specialising in transsexuals. After a process of mental assessment she began living as a woman in 1975 before completing SRS in 1981. Within this time she met Mr Bellinger, a widower who knew of and accepted her trans history. The couple married on 2nd May 1981.
Anxious that her marriage would be held null under s11(c) Matrimonial Causes Act 1973, which provided that parties to a marriage must be 'respectively male and female' through the Corbett test, Mrs Bellinger applied to the Family Court for a declaration under s.55 Family Law Act 1986 that her marriage was valid and subsiding.
The decision in Corbett v Corbett
To understand Bellinger v Bellinger we must look at the precedent in Corbett and Corbett, the famous April Ashley case. Here a marriage between Ashley and her husband had broken down. Mr Ashley petitioned for nullity on the basis that it was a marriage between two males.
The case heard extensive medical evidence from nine experts who concluded there were four criteria used for assessing biological sex and disorders thereof. These were:
Omrod J ignored the psychological element on the basis that all the medical witnesses agreed sex was immutable, stating:
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.
On analysing whether transsexual identity could have a psiological basis, Omrod concluded ’marriage is a relationship which depends on sex and not on gender’ adding:
'Having regard to the essentially heterosexual character of the relationship which is called marriage, the criteria must … be biological, for even the most extreme degree of transsexualism … cannot reproduce a person who is naturally capable of performing the essential role of a woman in marriage. In other words, the law should adopt in the first place, the first three of the doctors' criteria, ie the chromosomal, gonadal and genital tests, and if all three are congruent, determine the sex for the purpose of marriage accordingly, and ignore any operative intervention.'
On these grounds he concluded the respondent was male, and the marriage was void ab initio.
This case had the effect of enacting what became 11(c) of the Matrimonial Causes Act, which specifies that a marriage will be void if the parties are not respectively male and female.
The case at first instance (as B v B, 2 November 2000)
The Case
Bellinger applied for a declaration that her marriage was valid.
Held
Using the three criteria in Corbett, Johnson J determined the marriage was between two males and because of this, under s 11(c) of MCA 1973, which provided that a marriage was void where the parties were not ‘respectively male and female’, he concluded the marriage was void ab initio
Reasoning
Johnson J set out five concluding remarks:
First he accepts that social attitudes towards transsexuals have changed markedly since Corbett in the 1970s, and that the English law position is not accepted in many other countries. An example is the High Court of New Zealand's decision in Attorney General v Otahuhu Family Court which Johnson said represented a shift in definitions of sex placing more emphasis on its social and psychological aspects.
The Otahulu case provided a criticisim of Corbett with its Judge, Ellis J stating:
’if the (UK) law insists that genetic sex is the predeterminant for entry into a valid marriage, then a male-to-female transsexual can contract a valid marriage with a woman and a female-to-male transsexual can contract a valid marriage with a man. To all outward appearances, such would be same sex marriages’.
Secondly he says that, the law was made by Parliament and is binding on him. Adding that although other jurisdictions had done, Parliament had not offered a definition of female that could include trans people .
Thirdly he says that he can offer no comment on whether the time ahs come for Parliament to change the law.
Fourthly he confirms that sex testing mechanisms such as brain scans are not sufficiently advanced to replace the test in Corbett
Finally he dismisses the petition
The case at appeal
The Case
Elizabeth Ann Bellinger appealed with permission of the Court of Appeal from the decision of Johnson J on 2 November 2000.
Held
By a majority of two to one Thorpe LJ dissenting, the court of appeal refused to make the declaration. This was on the basis that following the Corbett test, the marriage was between two males and because of this, under s 11(c) of MCA 1973, it was null ab initio.
Reasoning
The Position at the ECHR
In both Rees v. United Kingdom, Cossey v United Kingdom and Sheffield and Horsham v. United Kingdom, the ECtHR had found that the UK’s use of the Corbett criteria did not contradict the convention. This was on the basis that the UK had a margin of appreciation as there was no consensus in member states.
This was until the 2002 case Goodwin v United kingdom in which it was found there was a violation of both Article 8 and Article 12. On this basis the Corbett test was no longer convention compatible.
Goodwin v United Kingdom
As section 2(1) of the HRA requires courts to take account of ECtHR judgements when a question arises that concerns convention rights, the judgement in Goodwin was relevant to the judgement at the House of Lords which was decided after the court of appeal Bellinger judgement.
The case is further relevant because s3 (1) HRA requires the courts to read legislation in a way which is ECHR compatible, which meant the courts had to consider if s11(c) MCA was incompatible with the ECHR.
In Goodwin the applicant was a trans woman who claimed her Article 8 and 12 rights had been violated by the UK law not recognising her trans identity.
The UK’s defence was that it had a margin of appreciation but the ECtHR unanimously ruled that A 8 and A 12 had been violated. They said the test used in Corbett and Corbett, that gender was purely biological was no longer an appropriate test
The case at the House of Lords
The Case
Bellinger sought a declaration under s 55 FLA that the marriage was valid and if not alternatively a declaration under s4 of the human rights act that section 11(c) of the Matrimonial Causes Act 1973 is incompatible with articles 8 and 12 of the European Convention on Human Rights
Held
The Lords unanimously rejected Mrs Bellinger’s claim for a declaration that her marriage was valid and subsiding. However, they made a declaration of incompatibility to say s. 11(c) of the Matrimonial Causes Act 1973 was incompatible with Article 8, the right to respect for private life and Article 12 the right to marry.This would make the act unlawful under section 7 of the human rights act.
Reasoning
The court was unable to read the MCA in line with the ECtHR’s judgement in Goodwin under s3 HRA because doing so would make alterations to the meanings of male and female that would go beyond interpretation and into legislating. This was due to legal sex’s far reaching consequences which went well beyond the facts at hand. For this reason they determined the question was a matter to be decided by parliament, who had already expressed an intention to legislate on trans identity in what became the GRA. Thus the Lords made a declaration of incompatibility- ie the MCA was incompatible with A 8 and 12.
This is summarised by Lord Nicholls:
"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 qualifications, criminal law (gender-specific offences), prison regulations, sport, the needs of decency, and birth certificates. Birth certificates, indeed, are one of the matters of most concern to transsexual people, because birth certificates are frequently required as proof of identity or age or place of birth."