Corbett v Corbett
Facts
April Ashley, a trans woman, underwent SRS in 1960. In September 1963 she married a man, Arthur Corbett in Gibraltar. Arthur, who was a crossdresser, knew of her trans history and had no problem with it.
By December that year, their marriage had broken down, with the pair having only spent 14 days together. The pair had no contact until 16th february 1966, when Mr Corbett was issued summons from Ms Ashley claiming maintenance under s.22 Matimonial Causes Act 1966.
Given this was at a time before non fault divorce, the reason given by Mr Corbett on seeking to terminate the marriage was that it was void from the start on the basis that Ashley was a male, meaning in law it had never existed, alternatively he claimed that the marriage was void on the basis that the marriage had not been consummated.
Ashley claimed that the marriage had been consummated or alternatively that the petitioner, Mr Corbett, had refused to consummate the marriage.
Held
Ormrod J devised a narrow test to determine legal sex that would exclude all transsexuals but for a small number of intersex transsexuals from being recognised as their chosen sex. As a result Ashley’s marriage was deemed void on the basis that it was a marriage between two males.
Ormrod J additionally held in obiter that had the marriage been valid, it would have been voidable on the basis that Ashley’s vagina was ‘artificial’ and so she would have been incapable of consummating the marriage.
Decision
Assessing whether Corbett was a woman
Ormrod heard 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.
Assessing the Meaning of Marriage
There was discussion as to whether transsexuals were the result of an intersex or physiological condition, this was shortly before John Money’s Man and Woman, Boy and Girl had compended a number of animal models for gender dysphoria. These were dismissed for reasons that turn to the function of marriage in English law. While the court noted that it was uncontroversial that gender could be changed for some purposes, such as National Insurance, in other circumstances such as marriage, sex was a determining category.
Ormrod J clarified, ’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.'
Non consummation
The function of marriage also has bearing on the second of Ormrod’s conclusions that trans women are incapable of consummating a marriage. This has its origins in mediaeval canon law, the church thought it was important to keep sex within a marriage and to produce children.
This is exemplified by Lord Penzance in Hyde v Hyde who defined marriage as:
'a contract for which the parties elect but which is regulated by the state, both in its formation and in its termination by divorce, because it affects status upon which depend a variety of entitlements, benefits and obligations.'
Corbett extended the comparison between this and buggery, which had only recently been legalised, saying:
'the reverse of ordinary, and in no sense natural. When such a cavity has been constructed in a male, the difference between sexual intercourse using it and anal or intra-crural intercourse is, in my judgment, to be measured in centimetres.
This is a highly prescriptive idea of consummation that we can distinguish for example from Bellinger v Bellinger where Thorpe, dissenting, said:
'within any marriage there may be physical factors on either or both sides that require acknowledgement and accommodation in the sexual relationship of the parties. But that accommodation does not rob the result of its essential characteristic, namely the sexual dimension of the couple's relationship. Acknowledging that it is a dimension of cardinal importance, I would nevertheless conclude that in cases such as the present it is sufficiently fulfilled.'
Legacy
Prior to Corbett, the law was silent on an existing phenomenon of crossdressers and transsexuals marrying the same sex, a phenomenon that had been happening. Corbett resulted in the MCA 1973 making marriage explicitly void on the grounds of the parties being of the same sex, something that meant later cases were concerned less with the function of marriage and more with medical evidence. The Corbett test was followed to rule marriages were void under the MCA. This was the case until Bellinger where although the marriage was void, a declaration of incompatibility was made by the house of lords to say the MCA 11 c was incompatible with A 12 and 8 of the ECHR. This resulted in the GRA which overruled the MCA 11 c where a GRC had been obtained but did maintain a slight lack of clarity over consummation.