An Association For As Noble A Purpose As Any
(As published in the New Law Journal, March 15th, 1996)
On June 28th 1995 "Britain’s first Lesbian marriage" took place when twice-divorced Tracie-Anne Scott married her girlfriend Tina-Louise Dixon. This was not, however, a set up for Gay Pride, Stonewall or Outrage. This was for real and took place in a real Registry with a real Registrar in attendance. It may be real - but is it legal? Well it is, because Scott, a 38 year old former merchant seaman, is a post- operative male to female transsexual. Registered at birth as a boy, Scott began living as a woman 7 years ago and, having undergone hormone therapy, underwent gender-reassignment surgery in 1993. Scott’s legal sex status is however still that of male and it is that which enabled 2 ’apparent’ women to contract a legal marriage here in Britain.
Scott and Dixon’s marriage is by no means the first same sex marriage to have taken place here, despite the newspaper headlines. For some years now transsexuals who identify as gay men or lesbian women have been taking advantage of the law’s archaic approach to their sex status to marry their partners and take advantage of pension rights, immigration rules etc. This all seems very paradoxical within a legal system which does not allow heterosexual transsexuals to marry their ’other-sex’ partners despite the fact that, as a general rule, it might be said that same-sex marriages are not legal, ever since the common law ruling in Hyde v Hyde [1866]. Ratified into Statutory law, with the divorce laws of the Matrimonial Causes Act (1973) the, now classical, definition of what is meant by marriage in English law is that:
marriage may be defined as the voluntary union for life of one man and one woman to the exclusion of all others
In the 1990’s it must be acknowledged that most of these requirements are no longer essential to the legality of a marriage. Arranged marriages have meant that some are not entered into voluntarily, adultery is not a way of guaranteeing the end of a marriage, and the divorce laws are such that life may mean a very short period. All that remains is the requirement that the partners are respectively a man and a woman, but does this mean the same as saying that they are male and female. Apparently not, in Scott and Dixon’s case there was no doubt by anyone apparently that these were 2 females. The couple were not declared ’man and wife’ but were declared by the Registrar to be ’legally married’.
The right to marry was removed from heterosexual transsexuals by the judgement of Ormrod L J in the now infamous case of Corbett v Corbett [1970]. The judgement in Hyde v Hyde ([1866] had not defined what was meant by the words "man" and "woman", notwithstanding Ormrod felt that as both a doctor and judge he was able to enlighten the law as to what these words meant.
Corbett v Corbett concerned the marriage of April Ashley, a male to female transsexual. On the breakdown of the marriage her husband petitioned for nullity on the grounds that i. the respondent remained a male and hence the marriage was void and ii. the marriage was never consummated due to the incapacity of the respondent.
Ormrod decided the case on these two issues. As for the sexual identity of April Ashley, Ormrod devised a test based upon three factors. Sex was to be considered through:chromosomal, gonadal and genital features at the time of birth. These were established as being "male" at the time of Miss Ashley’s birth. However, rather than deciding whether she was then a man, Ormrod J. referred back to the decision in Hyde v Hyde and held:
Since marriage is essentially a relationship between man and woman, the validity of the marriage in this case depends, in my judgement, on whether the respondent is or is not a woman. I think with respect this is a more precise way of formulating the question than that adopted in para.2 of the petition, in which it is alleged that the respondent is male. (Corbett v Corbett, 1970: 48)
One of the problems with any analysis of Ormrod’s judgement is that he constantly mixed the notions of "male and female" with those of "man and woman". For example he states in conclusion to this question:
the respondent is not a woman for the purposes of marriage but is a biological male and has been so since birth (Corbett v Corbett, 1970: 49);
but he does not attempt to categorise Miss Ashley as a man. He argues that marriage is a relationship based on sex rather than gender, so he really needed to consider her to be a ’man’, yet almost certainly Ormrod was faced with a dilemma that arose from his being unable to define the person in front of him as a man yet he felt unable, in law and because of the test he had devised, to call her a woman. The sailors who wrote to April Ashley for pin-ups for their mess room walls had no doubts, just as in May 1992 readers of "Playboy" were not going to have doubts about their centre page model, ’Tula’ (Caroline Cossey), another transsexual who was to pursue the British Government to the European Court of Human Rights in her attempt to get them to allow her to marry a person of her opposite gender.
Ormrod, because of his inability to find Miss Ashley to be a woman, declared the marriage to be void, as it was not a marriage between a man and a woman. Once he had established the marriage was void, there was no reason for him to consider the second ground: whether the marriage could have been consummated. However he did so, and was of the opinion that ’normal’ intercourse was not possible between a post-operative male to female transsexual and a man, the difference between that and anal intercourse was a fact "to be measured in centimetres".
Ormrod distinguished this from the earlier judgement in SY v SY [1962] in which a decree of nullity, due to failure to consummate, had been refused on the grounds that a vestigial vagina could have been corrected by forming an artificial passage. Medically there is little difference between an extended vagina as in SY v SY and a wholly artificial one as in Corbett, just as there is little difference in any resultant act of intercourse. There is an irony in the distinction made between the two cases, in that it would seem to have been made on the basis that SY was an imperfect woman; however nowadays it is very likely that she would have been diagnosed as a case of testicular feminisation and accordingly been discovered to be a chromosomal male - in other words she would not have been a woman for the purposes of marriage on the same basis that April Ashley was not a woman. It could therefore be argued that Ormrod misdirected himself with regard to the distinguishing facts in Corbett, as opposed to those in SY v SY. Furthermore the construction of an artificial vagina is not restricted to transsexuals, for some women also have reconstructive surgery in acute cases of vaginal atresia (absence or closure of a normal body orifice) before they are able to have sexual intercourse. Are these people ’not women’?
The case held that a combination of hormone treatment and surgery did not, for the purposes of matrimonial law, result in a change of sex assigned to a person at birth. The sex of a person is, in law, dependant entirely upon their gonadal, genital and chromosomal sex at birth. Thus, irrespective of any reconstructive surgery, the transsexual woman is not a woman for the purposes of marriage and has at all times been a biological male. The fact that Ormrod J. considered both of the two grounds for nullity has contributed to the legal impasse that now exists for transsexuals. If he had considered only the initial ground (whether the parties were a man and a woman), a transsexual would be prevented from marrying someone of the same natal sex; but by the second ground (whether the marriage was consummated) he has introduced the idea that a post-operative male to female transsexual cannot consummate a marriage at all. Potentially the surgically constructed phallus of a female to male transsexual would also be deemed incapable of sexual intercourse, being, if we adopt Ormrod’s thinking, "merely a flap of skin".
The decision in Corbett has been incredibly influential, despite being from the High Court. It has been followed as precedent in other matrimonial cases such as Peterson V Peterson [1985], Franklin v Franklin [1990] and in the criminal law in R v Tan [1983], and the UK Government has supported this definition of sex in all of the ’transsexual’ cases going to the European Courts.
Many nation states, including at least fifteen contracting parties to the European Convention Of Human Rights, South Australia, Turkey, most USA and Canadian states, and since December 1994; New Zealand, allow the transsexual full rights to marry in their new gender role. In New Zealand the Registrar of Marriages requested a declaration from the High Court as to whether two people of the same sex may be validly married if one of them has undergone gender reassignment. Transsexuals in New Zealand, as is the case here in the UK, still cannot have their birth certificates altered, but Judge Ellis, challenging the 3 point test of Ormrod, held:
…. the law of New Zealand has changed to recognise a shift from sexual activity and more emphasis being placed on psychological and social aspects of sex, sometimes referred to as gender issues.(Judge Ellis, reported in the Evening Post, 1st December 1994)
This, along with recent decisions from other jurisdictions such as France, can only add to the weight of opinion which holds that Ormrod wrongly directed himself in Corbett v Corbett.
Marriage in the 1990s is no longer inextricably linked to the right to procreate and rear children. Same sex and transsexual marriages are increasingly being placed on the political agenda, as we see an expanding diversity in the ways in which families are formed. It would seem illogical to recognise same-sex couples as constituting a family for some purposes, such as parental rights and obligations, whilst failing to recognise their relationship as a marriage. Denying same-sex couples the right to marry is a denial of a fundamental right to enjoy the numerous benefits and privileges that marriage brings.
It is not that long since black people were not allowed to marry white people, is it any different to discriminate against people because of their birth genitals as opposed to the shading of their skin? If physiological factors such as chromosomes and genitals were removed from the equation, just as skin colour is now not relevant, allowing transsexuals (and possibly gay men or lesbians) to marry, would it not enhance rather than damage the more modern fundamental concept of marriage as recently defined by the U.S Supreme Court:
a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects… It is an association for as noble a purpose as any (Griswold, p 486).
Stephen Whittle Ph.D, M.A, LL.B, B.A.
The School of Law
The Manchester Metropolitan University
Hathersage Rd
Manchester M13 0EP
Tel: 0161 247 6444
Fax: 0161 247 6309
email: s.t.whittle@mmu.ac.uk
