COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION
(MR JUSTICE JOHNSON)
Strand, London, WC2A 2LL
Tuesday 17th July 2001
B e f o r e :
LORD JUSTICE THORPE
LORD JUSTICE ROBERT WALKER
| ELIZABETH ANN BELLINGER
|- and -
|MICHAEL JEFFREY BELLINGER
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr A. Moylan QC and Mr T. Amos (instructed by the Attorney General as Intervenor)
Crown Copyright ©
DAME ELIZABETH BUTLER-SLOSS, PRESIDENT AND ROBERT WALKER LJ:
Medical Condition of the Appellant
"…the creation of an orifice which can be described as an artificial vaginal, but she was still without uterus or ovaries or any other biological characteristics of a woman."
"I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others."
"it is and always has been recognised as the union of man and woman."
"There is now a distinct possibility that were it possible to do so, examination of the brain of a living individual would reveal further indications of gender. But that is not yet possible and the practical reality is that whatever may ultimately emerge from advances in medical science, the only criteria for determining the gender of an individual remain those identified in Corbett."
Corbett v Corbett
"All the medical witnesses accept that there are at least four criteria for assessing the medical condition of an individual. These are:
a) Chromosomal factors.
b) Gonadal factors (i.e. presence or absence of testes or ovaries).
c) Genital factors (including internal sex organs).
d) Psychological factors.
Some of the witnesses would add:
e) Hormonal factors or secondary sexual characteristics (such as distribution of hair, breast development, physique etc, which are thought to reflect the balance between the male and female sex hormones in the body).
It is important to note that these criteria have been evolved by doctors, for the purposes of systematising medical knowledge and assisting in the difficult task of deciding the best way of managing the unfortunate patients who suffer, either physically or psychologically, from sexual abnormalities. As Professor Dewhurst observed, "we do not determine sex - in medicine we determine the sex in which it is best for the individual to live." These criteria are, of course, relevant to, but do not necessarily decide, the legal basis of sex determination."
"…the alternative view is that there may be an organic basis for the condition. This hypothesis is based upon experimental work… which suggests that the copulatory behaviour of the adult animals may be affected by the influence of certain sex hormones on particular cells in the hypothalamus…At present the application of this work to the human being is purely hypothetical and speculative… The use of such phrases as 'male or female brain' in this connection is apt to mislead owing to the ambiguity of the word 'brain'…In my judgment these theories have nothing to contribute to the solution of the present case."
"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."
" Since marriage is essentially a relationship between man and woman, the validity of the marriage in this case depends, in my judgment, upon whether the respondent is or is not a woman. I think, with respect, that this is a more precise way of formulating the question than that adopted in paragraph 2 of the petition, in which it is alleged that the respondent is a male. The greater, of course, includes the less, but the distinction may not be without importance, at any rate, in some cases. The question then becomes, what is meant by the word "woman" in the context of a marriage, for I am not concerned to determine the "legality" of the respondent at large. Having regard to the essentially hetero-sexual character of the relationship which is called marriage, the criteria must, in my judgment, be biological, for even the most extreme degree of transsexualism in a male or the most severe hormonal imbalance which can exist in a person with male chromosomes, male gonads, and male genitalia 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. The real difficulties, of course, will occur if these three criteria are not congruent. This question does not arise in the present case and I must not anticipate, but it would seem to me to follow from what I have said that the greater weight would probably be given to the genital criteria than to the other two. This problem and, in particular, the question of the effect of surgical operations in such cases of physical inter-sex must be left until it comes for decision. My conclusion, therefore, is that the respondent is not a woman for the purposes of marriage but is a biological male and has been so since birth. It follows that the so-called marriage of September 10, 1963, is void."
"A marriage which takes place after the commencement of this Act shall be void on the following grounds only, that is to say-
c) that the parties are not respectively male and female."
Male and Female - Gender
"It is suggested that the Act has made a subtle but perhaps important change to the terminology. What governed Ormrod J's decision in Corbett's case, based as it was on ecclesiastical principles, was whether the parties were " a man and a woman". It may be - but I express no view about it - that the choice "male and female" has left the way open for a future court, relying on the developments of medical knowledge, to place greater emphasis on gender than on sex in deciding whether a person is to be regarded as male or female. There is a body of very respectable academic opinion making that point: see, for example, Cretney and Masson Principles of Family Law, 5th ed (1990) pp 46-48; S Poulter "The Definition of marriage in English Law" (1979) 42 M.L.R. 409, 421-425 and A. Bradney, "Transsexuals and the Law"  Fam. Law 350."
"It is not necessary for the purpose of this appeal to consider whether the decision of Ormrod J in Corbett v Corbett … requires re-examination in the light of modern medical advances and in the light of decisions in other jurisdictions, or whether it is distinguishable because the words used in section 11(c) of the Act of 1973 are 'male' and 'female' which, I suppose, it might be argued, indicate a test of gender rather than sex."
"If two persons of the same sex contrive to go through a ceremony of marriage, the ceremony is not matrimonial at all: it is certainly not a void marriage, and matrimonial principles have no application to such an 'union'."
"…that a marriage was at its inception void."
The Medical Evidence
"Gender Dysphoria is discontent with being a person of the sex to which one was born and discontent with living in the gender role consistent with that birth sex. Gender Dysphoria when profound is popularly known as transsexualism. In the current version of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders IV, this condition is known as gender identity disorder."
"The transsexual…has an extremely powerful urge to become a member of the opposite sex to the fullest extent which is possible…This goes on until they come to think of themselves as females imprisoned in male bodies, or vice versa…"
"Traditionally it is assumed that sexual differentiation, the process of becoming man or woman is completed with the formation of the external genitalia, the criterion used to assign a new born child to the male or female sex. From the beginning of this century it became clear in laboratory animals that this is not the endpoint of the sexual differentiation process but that the brain undergoes a sexual differentiation process into male and female, largely predicting/correlating with future sexual and non-sexual behaviour. The process of sexual differentiation takes place in distinct steps, first the chromosomal configuration is established, next gonadal differentiation, next differentiation of the internal and external genitalia and finally the differentiation of the brain into male or female. Normally all steps in the process of sexual differentiation are concordant (in men: an XY chromosomal pattern, testis, male internal and external genitalia and a male brain differentiation being the substrate of male-type behaviour; in women an XX chromosomal pattern, ovary, female internal and external genitalia and a female brain differentiation being the substrate of female-type behaviour). Nature is not free of errors and the process of sexual differentiation is no exception. There are human beings in which not all the traditional criteria of sex are concordant. They may have some biological characteristics of one sex and some of the others, a condition known as inter-sexed.
The human condition requires that newborn children be assigned to one sex or the other. The social and legal systems have left no room for inter-sexed subjects. If a new born child presents with an inter-sexed condition a medical decision must be made to assign this baby to the male or female sex. It is now a generally accepted medical practice to assign an inter-sexed new born child to that sex in which the unlucky creature, on the basis of medical expertise and reasonable expectation, will function best. It is of note that biological characteristics are not imperative in this decision process. The decision is based on prognosticated future sexual and non-sexual functioning. The legal system registers these newborn children in accordance with the medical decision. So it is no longer tenable to claim the genetic or gonadal criterion determines one's status as male or female. Some of our fellow human beings live lives of women with a male-type XY chromosomal pattern or testis or vice versa.
...Sexual and non-sexual brain differentiation is now accepted as part of the process of becoming male or female of the mammalian species to which humans belong. In animal experimentation it is easily possible to induce a female type of sexual and non-sexual behaviour in animals that have, up to that final stage of sexual differentiation, a completely male pattern and vice versa. Depending on the type of manipulation applied in the animal experiment, in-between types of behaviour can also be observed. On the basis of the findings of these experiments it has been hypothesised that in human subjects with gender identity problems the sexual differentiation of their brains has not followed the pattern predicted by their earlier steps in the sexual differentiation process (such as chromosomes, gonadal, genitalia) but has followed a pattern typical of the opposite sex in the final stage of that differentiation process; as indicated above, a situation that can be induced in laboratory animals by experimental manipulation.
…The validity of extrapolation of the sexual differentiation process of the brain in other mammals to the human has been corroborated by findings of anatomical and functional brain differences between males and females, including the human species."
"In conclusion: there is now reason to believe that transsexualism is a disorder of sexual differentiation, the process of becoming man or woman as we conventionally understand it. Like other subjects afflicted with errors in this process, these subjects need to be medically rehabilitated so that they can live acceptable lives as men or women. This decision is not essentially different from the one made in inter-sexed children where assignment takes place to the sex in which they in all likelihood will function best. In them the decision most of the times takes place shortly after birth...similarly it is the case in transsexualism, since there is evidence that the sexual differentiation of the brain in human occurs (also) after birth. As such it is unavoidable that in subjects with errors of the sexual differentiation of the brain, sex reassignment takes place after birth, sometimes much later in their lives since it requires a large amount of life experience to discover the predicament of being born in the wrong sex, in other words having sexual and non-sexual brain patterns that are in contradiction with the other sex characteristics.
The established diagnostic and therapeutical approach to transsexuals is that it is a stepwise procedure: the decision to treat hormonally is contingent upon the outcome of the psycho-diagnostic process, the decision to recommend surgery is contingent upon the successful outcome of hormone treatment and the real life test. If both appear to resolve the subject's gender problems, it is imperative to recommend sex reassignment surgery."
"The process of becoming man or woman is not complete with the formation of the external genitalia, the common criterion to label someone male or female and extremely expeditious in that regard. But the brain is also sex-dimorphic, and is an organ that becomes sex-dimorphic in the course of normal female/male development.
Both the paper in Nature and Journal of Clinical Endocrinology substantiate the hypothesis that transsexuals are inter-sexed at brain level and deserve the same medical care as other inter-sexed patients..."
"Over the past four decades, gender identity disorder, or transsexualism, has been acknowledged as a psychiatric disorder requiring unique therapeutic interventions.
Severe gender dysphoria cannot be alleviated by any conventional psychiatric treatment, whether it be psycho-analytic therapy, eclectic psychiatric treatment, aversion treatment, or by any standard psychiatric drugs. Consequently, the strategies of therapeutic intervention include, firstly, clinical exploration of the extent of the patient's gender dysphoria. When it is considered that a transition to living in the other sex and gender role could result in a better psychological, psychosocial and psychosexual functioning, an extended trial transition period is initiated. Treatment stages include reversible steps before those that are irreversible. Thus, early on, there may be name change, and clothing style change. This is followed by cross-sex hormone administration. If during the next one to two years the individual can demonstrate to self and health care professionals that life is more successful in the new gender role, consideration can be given for referral for sex reassignment surgical intervention."
"The onset of gender dysphoria is typically dated by patients to the earliest years of life. It is reported to have begun "as far back as I can remember".
"The criteria for designating a person as male or female are complex. They are not simply an outcome of chromosomal configuration, genital configuration, or gonadal."
"The Corbett criteria are too reductionistic to serve as a viable set of criteria to determine sex. They also ignore the compelling significance of the psychological status of the person as a man or a woman."
"In recent years there has been a widely publicized finding from The Netherlands indicating, in a small series of male-female transsexuals studied post-mortem, that the bed nucleus of the stria terminalis region of the brain was similar in size to that of typical females and different in size from typical male. The interpretation of this finding is that it provides evidence of a biological central nervous system basis for male transsexualism. Because of the difficulties in replicating such a study which must be conducted after death this report remains neither refuted nor confirmed."
"The four criteria, even the potential fifth criterion of hormonal factors or secondary sexual characteristics, noted by medical experts nearly thirty years ago, are derived from the landmark studies of the anatomically intersexed, the work of Dr John Money and additionally Drs John and Joan Hampson in the 1950s at The John Hopkins Hospital. There has been no substantive alteration in considering these criteria during the intervening years. There are medical experts who would value the psychological factor as the most important criterion particularly when psychological factors, or the person's gender identity, is at variance with any of the other factors. In fact, in the pioneering studies of the anatomically inter-sexed the psychological factor was most commonly the overriding one in determining psychosexual development of the individual."
"Psychological factors cannot be considered at birth because they do not yet manifest. They may become an overriding consideration subsequently as the individual develops. Physical differences in the brain are as yet not measurable at birth, if at all later in life. They may ultimately override all other criteria. Thus, though not apparent at birth, this would influence the ultimate developmental outcome with respect to a new-born."
"…there is considerable sentiment for delaying any surgical modification of the genitalia which had been thought to help pre-set the evolving gender identity. Now there is more of a wait and see approach until the individual is old enough to express its own wishes…
"There is growing acceptance of findings of sexual differences in the brain that are determined prenatally. They are seen as influencing sex-typed and sexual behaviours. I do not know how much of an international consensus there is on this or just what a reasonable body of medical opinion would constitute here. However, there is a growing momentum in that direction."
"At present there is probably no method within neuroscience to make such a determination. Rather it may be best to abide by the person's gender identity, which is the psychological manifestation as mediated by the brain…
"If a biological sexual condition of an individual is conceptualised to include psychological sex, perhaps reflective of brain sex differentiation, this status does not express itself until several years postnatally. Therefore it is not possible to say that the biological sexual condition of an individual is fixed at birth in that not all of the bases of the biological sexual condition can be determined at birth….
"As a psychiatrist I am biased towards psychological factors. I would argue that with a transsexual the psychological sex has been contrary to other somatic factors for many years, if not the great majority of the person's life. Taking that position gender reassignment treatment and surgery would align the somatic features with the psychological features…
"By the standards applied at the time of the patient's birth it would be considered that the infant was male. However, current considerations with respect to determining the correct sex of an individual at birth, such as psychological and brain sex, might render that designation less certain…the hormonal sex and genital sex have been changed by medico-surgical intervention. Gonadal factors have been modified in that they have been eliminated. Chromosomal factors have not been altered so far as XX or XY is concerned, but within the chromosomes there may be genes that determine that the petitioner was psychologically female.
"At present the patient is functioning as a woman, not as a man. From that perspective the petitioner's sex could be judged to have changed."
"This study, although composed of small numbers of patients, shows a significant difference in the size of the central subdivision of the bed nucleus of the stria terminalis between groups of men and women and male to female transsexuals. This paper therefore lends credence to the view that the formation of external genitalia which is currently the criteria to assign a new born child to the female or male sex is not the end point of sexual differentiation and that sexual differentiation of the brain may be more important in predicting or correlating future sexual and non sexual behaviour…"
"With further research into the neuro-anatomy/neuro-pharmacology of brains of transsexual patients the pathogenesis of transsexualism may become more clearly understood."
"The psychological profile of male to female transsexuals is female by medical definition. The only biological factor which has not changed in such individuals is their chromosomal makeup. The paper reported in Nature in 1995 would suggest this in itself may be irrelevant in the sexual development of transsexuals. Accepting that transsexualism is a medically recognised condition and that such patients undergo appropriate medical and surgical treatment to achieve their chosen sexual orientation it seems to me irrelevant to consider the chromosome makeup of an individual as the critical factor when determining the rights of that individual in the in the society in which he/she lives."
Conclusions on the Medical Evidence
a) psychiatric assessment
b) hormone treatment
c) a period of the real life test (living as a member of the opposite sex)
and, in suitable cases,
d) gender reassignment surgery.
b) secondary sexual characteristics
c) brain differentiation.
b) Secondary Sexual Characteristics
c) Brain Differentiation
The Case Law
"In our judgment 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 section 30 of the Sexual Offences Act 1956 or section 5 of the Sexual Offences Act 1967."
"Hollis J did not find this "persuasive authority." For my part, I find myself unable lightly to dismiss it. Taken with the new insight into the aetiology of transsexualism, it may be that Corbett's case...would bear re-examination at some appropriate time."
"It has been suggested that for your Lordships to decide this appeal in favour of the appellant would be to usurp the function of Parliament. It is trite that that is something the courts must not do. When considering social issues in particular judges must not substitute their own views to fill gaps. They must consider whether the new facts 'fall within the parliamentary intention' (see Royal College of Nursing of the UK v Department of Health and Social Security  1 All ER 545 at page 565;  A.C.800 at page 822 per Lord Wilberforce). Thus in the present context if, for example, it was explicit or clear that Parliament intended the word 'family' to have a narrow meaning for all time, it would be a court's duty to give effect to it whatever changes in social attitudes a court might think ought to be reflected in the legislation. Similarly, if it were explicit or clear that the word must be given a very wide meaning so as to cover relationships for which a court, conscious of the traditional views of society might disapprove, the court's duty would be to give effect to it. It is, however, for the court in the first place to interpret each phrase in its statutory context. To do so is not to usurp Parliament's function; not to do so would be to abdicate the judicial function. If Parliament takes the view that the result is not what is wanted it will change the legislation."
"Both judgments - and their similarity is the more striking because they come from different legal traditions - make the same essential points. Both judgments may be summarised as taking the view that the change of sexual identity which results from successful reassignment surgery should be deemed a change of sex for legal purposes."
"The diversity of views in relation to Article 12, and the greater reluctance to find a definite right to marry on the part of transsexuals, has remained a feature of the case law under the Convention."
"It would therefore be true to say that there is at present little common ground between the contracting states in this area and that, generally speaking, the law appears to be in a transitional stage. Accordingly, this is an area in which the contracting parties enjoy a wide margin of appreciation."
"Having regard to the wide margin of appreciation to be afforded to the state in this area and to the relevance of protecting the interests of others in striking the requisite balance, the positive obligations arising from Article 8 cannot be held to extend that far."
"There is obviously no question of correcting the registers by concealing the historical truth or of claiming that Mr Rees has changed sex in the biological sense of the term. The idea is merely (as already happens in the United Kingdom in other cases - for example, with adoption) to mention a development in the person's status due to changes in his apparent sex - what we have called his sexual identity - and to give him the opportunity to obtain a short certificate which does not disclose his previous status. This would better reflect the real situation and to that extent would even be in the public interest."
" ... is conscious of the seriousness of the problems facing transsexuals and the distress they suffer. Since the Convention always has to be interpreted and applied in the light of current circumstances, it is important that the need for appropriate legal measures in this area should be kept under review."
"The principle which is basic in human rights and which underlies the various specific rights spelled out in the Convention is respect for human dignity and human freedom. Human dignity and human freedom imply that a man should be free to shape himself and his fate in the way that he deems best fits his personality. A transsexual does use those very fundamental rights. He is prepared to shape himself and his fate. In doing so he goes through long, dangerous and painful medical treatment to have his sexual organs, as far as is humanly feasible, adapted to the sex he is convinced he belongs to. After these ordeals, as a post-operative transsexual, he turns to the law and asks it to recognise the fait accompli he has created. He demands to be recognised and to be treated by the law as a member of the sex he has won; he demands to be treated, without discrimination, on the same footing as all other females, or as the case may be, males. This is a request which the law should refuse to grant only if it truly has compelling reasons. "
"Some persons have a compelling desire to be recognised and be able to behave as persons of the opposite sex. If society allows such persons to undergo therapy and surgery in order to fulfil that desire, then it ought also to allow such persons to function as fully as possible in their reassigned sex, and this must include the capacity to marry. Where two persons present themselves as having the apparent genitals of a man or a woman, they should not have to establish that each can function sexually ... There is no social advantage in the law not recognising the validity of the marriage of a transsexual in the sex of reassignment. It would merely confirm the factual reality."
"Such discrimination is based, essentially if not exclusively, on the sex of the person concerned. Where a person is dismissed on the ground that he or she intends to undergo, or has undergone, gender reassignment, he or she is treated unfavourably by comparison with persons of the sex to which he or she was deemed to belong before undergoing gender reassignment.
To tolerate such discrimination would be tantamount, as regards such a person, to failure to respect the dignity and freedom to which he or she is entitled, and which the Court has a duty to safeguard."
"does not indicate that there is yet any common approach as to how to address the repercussions which the legal recognition of a change of sex may entail for other areas of law such as marriage, filiation, privacy or data protection, or the circumstances in which a transsexual may be compelled by law to reveal his or her pre-operative gender."
"Even if there have been no significant scientific developments since the date of the Cossey judgment which make it possible to reach a firm conclusion on the aetiology of transsexualism, it is nevertheless the case that there is an increased social acceptance of transsexualism and an increased recognition of the problems which post-operative transsexuals encounter. Even if it finds no breach of Article 8 in this case, the Court reiterates that this area needs to be kept under review by Contracting States."
" ... courts are wise not to wander too far into the misty fields of sociological philosophy."
"The declaration [of the obstetrician or midwife after a quick visual inspection] is then memorialised by a certificate of birth, without an examination of the child's chromosomes or an inquiry about how the child feels about its sexual identity."
The Report of the Inter-Departmental Working Group on Transsexual People
"to consider, with particular reference to birth certificates, the need for appropriate legal measures to address the problems experienced by transsexual people, having due regard to scientific and societal developments, and measures undertaken in other countries to deal with this issue."
a) to leave the current situation unchanged;
b) to issue birth certificates showing the new name and possibly, gender; and
c) to grant full legal recognition of the new gender subject to certain criteria and procedures.
"We suggest that before taking a view on these options the Government may wish to put the issues out to public consultation."
(i) a person has lived for three years as belonging to the sex the person feels he or she belongs to;
(ii) the person is unmarried;
(iii) of age;
(iv) permanently sterile;
(v) has undergone an operation by which clear resemblance to the other sex has been achieved.
"If the law is to be extended in this manner, so as to impose control over the mother of an unborn child, where such control may be necessary for the benefit of the child, then under our system of parliamentary democracy it is for Parliament to decide whether such controls can be imposed and, if so, subject to what limitations or conditions."
The Judgment Below
The Expert Evidence
i) There are various stages in the development of the sex of the human being, some pre-natal and some post-natal. As Professor Gooren put it:"The process of sexual differentiation takes place in distinct steps, first the chromosomal configuration is established, next gonadal differentiation, next differentiation of the internal and external genitalia and finally the differentiation of the brain into male or female. .... this process of brain sexual differentiation takes place after birth .... one brain structure, that is different between men and women, becomes only sex-dimorphic between the ages of two and four years ...."
To the same effect is Professor Green who wrote:"If a biological sexual condition of an individual is conceptualised to include psychological sex, perhaps reflective of brain sex differentiation, this status does not express itself until several years post-natally. Therefore it is not possible to say that the biological sexual condition of an individual is fixed at birth ...."
ii) Since 1970 there has been some research into brain differentiation. Professor Gooren was co-author of a paper published in 1995 (Journal of Nature: J Zhou et al) that demonstrated that in one of the human brain structures that is different between men and women, a totally female pattern was encountered in six male - to - female transsexuals. In Professor Gooren's words:"These findings showed that a biological structure in the brain distinguishes the male - to - female transsexuals from men."
I also cite Professor Green's evaluation of this research. He says:"The interpretation of this finding is that it provides evidence of a biological central nervous system basis for male transsexualism"
Because the finding is based upon a small sample and because research can only be conducted post mortem the finding remains neither confirmed nor refuted. A subsequent publication in April 2000, of which Professor Gooren was again a co-author, provided only slight corroboration since it relied largely on the original sample. Because of the obvious difficulties in examining the brain for differentiation Professor Green has conducted research on four proxies which might reflect pre-natal biological influences associated with transsexualism. The research has shown significant differences which Professor Green evaluates tentatively:"These indirect measures may reflect differences in pre-natal brain organisation leading to manifestations of gender dysphoria beginning in early childhood and culminating in the need for sex re-assignment surgery."
Whilst scientific proof for the theory is far from complete Professor Green's assessment is that there is a growing acceptance of findings of sexual differences in the brain that are determined pre-natally. Mr Terry in his commentary on Professor Green's opinion said:"Although the current scientific literature arguing for a biological causation in the development of gender dysphoria is not irrefutable, it is certainly compelling to my mind."
iii) It follows from the preceding paragraph that medical opinion no longer accepts the three Corbett factors for the determination of sex. Professor Gooren states:"It is no longer tenable to claim that the genetic or gonadal criterion determines one's status as male or female."
More specifically Professor Green, rejects the Corbett criteria stating:"The Corbett criteria are too reductionistic to serve as a viable set of criteria to determine sex. They also ignore the compelling significance of the psychological status of the person as a man or as a woman."
He also states:"The criteria for designating a person as male or female are complex. They are not simply an outcome of chromosomal configuration, genital configuration, or gonadal configuration."
iv) The essential limitation of the Corbett criteria lies in the exclusion of psychological factors, whether or not further research will prove such factors to be mediated by brain differentiation. As Professor Green put it:"Psychological factors cannot be considered at birth because they do not yet manifest. They may become an overriding consideration subsequently as the individual develops."
Later in his opinion Professor Green succinctly expresses his position:"As a psychiatrist I am biased towards psychological factors. I would argue that with a transsexual the psychological sex has been contrary to other somatic factors for many years, if not the great majority of the person's life. Taking that position, gender reassignment treatment and surgery would align these somatic features with the psychological element. The correct designation of sex would be the outcome."
Professor Green also shows that these psychological factors cannot be averted by psychoanalytic or other therapies. Nor can outcomes be achieved by consistent psychological socialisation as male or female from very early childhood. He therefore states in relation to inter-sex patients:"More evidence is available for a pre-natally determined biological bias towards maleness or femaleness in gender identity that may overrule efforts at contrary socialisation as female or male. There is considerable current sentiment for delaying any surgical modification of the genitalia which had earlier been thought to help pre-set the evolving gender identity. Now there is more of a wait and see approach until the individual is old enough to express its own wishes."
v) The three experts reflect their huge understanding of transsexualism in their compassionate feelings for transsexuals. Professor Gooren wrote:"One of the serious obstacles to understanding gender dysphoria is that it is an unimaginable and inconceivable problem to those who do not have it. This distinguishes it from other forms of human suffering for which it is much easier to generate empathy and sympathy."
More specifically on the issue raised by this appeal Mr Terry speaks for these experts when he writes:
"To argue that in the case of a male to female gender dysphoric patient who has undergone rigorous psychological and psychiatric counselling, prolonged hormone treatment and usually several major surgical procedures and who has successfully adapted to a female existence both socially and professionally should not be allowed a legal marriage seems to me brutally insensitive and is diametrically opposed to what we as clinicians, who manage gender dysphoria, are trying to achieve."
"At least four criteria for assessing the sexual condition of an individual. These are:
(i) chromosomal factors;
(ii) gonadal factors (ie presence or absence of testes or ovaries);
(iii) genital factors (including internal sex organs); and
(iv) psychological factors."
"These criteria are, of course, relevant to, but do not necessarily decide, the legal basis of sex determination." (My emphasis added)
"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 fundamental purpose of law is the regulation of the relations between persons, and between persons and the state or community. For the limited purposes of this case, legal relations can be classified into those in which the sex of the individuals concerned is either irrelevant, relevant or an essential determinant of the nature of the relationship.... On the other hand sex is clearly an essential determinant of the relationship called marriage because it is and always has been recognised as the union of man and woman. It is the institution on which the family is built, and in which the capacity for natural heterosexual intercourse is an essential element. It has, of course, many other characteristics, of which companionship and mutual support is an important one, but the characteristics which distinguish it from all other relationships can only be met by two persons of opposite sex....
Since marriage is essentially a relationship between man and woman, the validity of the marriage in this case depends, in my judgment, upon whether the respondent is or is not a woman. I think, with respect, that this is a more precise way of formulating the question than that adopted in paragraph two of the petition, in which it is alleged that the respondent is a male. The greater, of course, includes the less but the distinction may not be without importance, at any rate, in some cases. The question then becomes, what is meant by the word 'woman' in the context of a marriage, for I am not concerned to determine the 'legal sex' of the respondent at large. Having regard to the essentially heterosexual character of the relationship which is called marriage, the criteria must in my judgment, be biological, for even the most extreme degree of transsexualism in a male or the most severe hormonal imbalance which can exist in a person with male chromosomes, male gonads and male genitalia 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."
"I have dealt, by implication, with the submission that because the respondent is treated by society for many purposes as a woman, it is illogical to refuse to treat her as a woman for the purpose of marriage. The illogically would only arise if marriage were substantially similar in character to national insurance and other social situations, but the differences are obviously fundamental. These submissions, in effect, confuse sex with gender. Marriage is a relationship which depends on sex and not on gender."
i) 'The biological sexual constitution of an individual is fixed at birth (at latest)'
ii) 'The relationship called marriage .... is and always has been recognised as the union of man and woman.'
iii) 'The law should adopt .... the first three of the doctors criteria .... and .... determine the sex for the purposes of marriage accordingly.'
iv) 'Marriage is a relationship which depends on sex and not on gender.'
"It is a contract according to the law of nature, antecedent to civil institution, and which may take place to all intents and purposes, wherever two persons of different sexes engage, by mutual contracts, to live together."
"The position or status of 'husband' and 'wife' is a recognised one throughout Christendom: the laws of all Christian nations throw about that status a variety of legal incidents during the lives of the parties, and induce definite rights upon their offspring. What, then, is the nature of this institution as understood in Christendom? Its incidents vary in different countries, but what are its essential elements and invariable features? If it be of common acceptance and existence, it must needs, (however varied in different countries in its minor incidents) have some pervading identity and universal basis. I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others."
"A euphemism for the sex of a human being, often intended to emphasise the social and cultural, as opposed to the biological, distinction between the sexes."
i) her chromosomal sex was male;
ii) her gonadal sex was male;
iii) her genital sex was ambiguous, but more male than female; but that subsequently
iv) her psychological development was female.
"(i) chromosomal factors;
(ii) gonadal factors (ie presence or absence of testes or ovaries);
(iii) genital factors (including internal sex organs);
(iv) psychological factors;
(v) hormonal factors, and
(vi) secondary sexual characteristics (such as distribution of hair, breast development, physique etc).
Doctor Conway had regard to all those factors. Another way of putting this is that the decision as to whether the person is male or female for the purposes of marriage can be made with the benefit of hindsight looking back from the date of the marriage or if earlier the date when the decision is made."
"As Doctor Conway explained, and I accept, people with partial androgen insensitivity can develop physically and socially in a range of ways. Their assignment to a sex or gender in which they are to be brought up and live is a difficult one and it seems to me that in such cases (and in other cases where a decision as to the sex or gender in which a child should be brought up falls to be made by doctors and others) there is considerable force in the argument that it would be best to 'wait and see'. How long it would be appropriate to wait, and what tests would be appropriate, would vary from case to case."
i) Prior existing marriage.
ii) Insanity at the time of marriage.
iii) Lack of consent.
"The way that a judge decides the sex of a particular person is and always will remain a question of fact. It will be a question of fact which will change with the change in medical opinion which will ensue in the coming years. If medical opinion were that the mere sex change operation was enough to change a person from a man to a woman or a woman to a man, that would be the end of the case; but because the medical evidence is not so clear cut the judge in the Corbett case took the view which he did and courts will continue to take the course which he took.
I urge upon those who have written to me and are concerned about the matter to appreciate that this is not a matter about which parliament can legislate. In the final analysis it must depend upon the state of medical opinion. If in the end medical opinion is able to state with greater certainty who is male and who is female on tests which were not applied in the Corbett case then some new court can apply those tests because the evidence will have changed and the question of fact, therefore, will also have changed.
If the amendment is accepted we shall not be making a rule about how one determines who is male and who is female. All we are saying is that once one has come to the conclusion that the parties are not respectively male and female, then one can grant a decree of nullity."
i) Expert medical evidence does not demonstrate that Mrs Bellinger is and always was female or that her medical treatment has changed her from male to female.
ii) The complexity of the issues surrounding transsexualism demand that the legislature bears the responsibility for introducing change rather than the judges.
iii) To accede to this petition would create enormous difficulties, even in the context of the transsexual's right to marry.
"It has been suggested that for your lordships to decide this appeal in favour of the appellant would be to usurp the function of parliament. It is trite that that is something the courts must not do. When considering social issues in particular judges must not substitute their own views to fill gaps. They must consider whether the new facts 'fall within the parliamentary intention' (see Royal College of Nursing of the UK v Dept of Health and Social Security  1 All ER 545 at 565,  AC 800 at 822 per Lord Wilberforce). Thus in the present context if, for example, it was explicit or clear that parliament intended the word 'family' to have a narrow meaning for all time, it would be a court's duty to give effect to it whatever changes in social attitudes a court might think ought to be reflected in the legislation. Similarly, if it were explicit or clear that the word must be given a very wide meaning so as to cover relationships for which a court, conscious of the traditional views of society might disapprove, the court's duty would be to give effect to it. It is, however, for the court in the first place to interpret each phrase in its statutory context. To do so is not to usurp parliament's function, not to do so would be to abdicate the judicial function. If parliament takes the view that the result is not what is wanted it will change the legislation."
"We suggest that before taking a view on these options the government may wish to put the issues out to public consultation."
"Submissions were directed to the practical aspects of any declaration, when the registrar may be in doubt. In such cases a medical examination can be arranged and opinions obtained to enable the registrar to reach his own conclusion."
i) In 1980 DSM-III introduced the diagnosis of transsexualism for gender dysphoric individuals who demonstrated at least two years of continuous interest in removing their sexual anatomy and transforming their bodies and social roles. In 1994 the DSM-IV committee replaced the diagnosis of transsexualism with gender identity disorder, denoting those with a strong and persistent cross-gender identification and a persistent discomfort with his or her sex or a sense of inappropriateness in the gender role of that sex. A similar classification is to be found in ICD-10. Gender identity disorder is a mental disorder, that is to say a behavioural pattern resulting in a significant adaptive disadvantage to the person causing personal mental suffering. The use of the formal diagnosis is an important step in offering relief, providing health insurance coverage, and generating research to provide more effective future treatments. All the above is derived from, and in the main directly quotes, the current version of the Standard of Care for Gender Identity Disorders produced by the Harry Benjamin International Gender Dysphoria Association and provided for us in the Attorney General's bundle.
ii) The research of Professor Louis Gooren published in 1995 and 2000 suggests that gender dysphoria is not a purely psychological condition. His research suggests, but does not prove, that gender dysphoria has a physiological basis in the structure of the brain. The expert evidence in the present case suggests that support for the premise is growing in specialist medical circles.
Mr Terry in his report says of the 1995 Journal of Nature study:"In my opinion this medical report diminishes the view that chromosomal makeup is the critical factor in determining the sexual orientation/behaviour for any individual .... Accepting that transsexualism is a medically recognised condition and that such patients undergo appropriate medical and surgical treatment to achieve their chosen sexual orientation it seems to me irrelevant to consider the chromosome make-up of an individual as the critical factor when determining the rights of that individual in the society in which he/she lives."
To make the chromosomal factor conclusive, or even dominant, seems to me particularly questionable in the context of marriage. For it is an invisible feature of an individual, incapable of perception or registration other than by scientific test. It makes no contribution to the physiological or psychological self. Indeed in the context of the institution of marriage as it is today it seems to me right as a matter of principle and logic to give predominance to psychological factors just as it seems right to carry out the essential assessment of gender at or shortly before the time of marriage rather than at the time of birth.
i) For the purposes of this appeal we consider only gender identity disorder within the context of the right to marry. Accordingly it is necessary to recognise changes to the institution of marriage over the last 30 years. I have addressed that issue at paragraphs 17 - 20 above.
ii) There have been highly significant developments throughout Europe since the year 1970. Sweden led the way in 1972 by legislation enabling transsexuals to change their legal sex and to marry a person of their former sex. In the mid 1970s Denmark followed suit followed by West Germany in 1980, Italy in 1982 and The Netherlands in 1985. Of course the legislative provisions varied from state to state. In other jurisdictions similar results were achieved through administrative or court practice. The transsexual's right to legal recognition to some extent had been achieved in at least 23 of the member states of the Council of Europe, according to the judgment of the court in the most recent case of Sheffield and Horsham v United Kingdom in 1998. In the same judgment it is also said that the only member states whose legal systems do not recognise a change of gender are the United Kingdom, Ireland, Andorra and Albania. Furthermore in 1989 the parliamentary assembly of the Council of Europe and the European Parliament adopted resolutions recommending that reclassification of the sex of a post-operative transsexual be made legally possible. In 1998 we introduced the Human Rights Convention into our law. The Convention is founded upon the concepts of human dignity and human freedom. Human dignity and human freedom are not properly recognised unless the individual is free to shape himself and his life in accordance with his personality, providing that his choice does not interfere with the public interest. In 1990 Judge Martens, in his dissenting judgment in Cossey v United Kingdom, expressed social developments as he then saw them in these words:
"There is an ever growing awareness of the essential importance of everyone's identity and of recognising the manifold differences between individuals that flow therefrom. With that goes a growing tolerance for, and even comprehension of, modes of human existence which differ from what is considered 'normal'. With that also goes a markedly increased recognition of the importance of privacy, in the sense of being left alone and having the possibility of living one's own life as one chooses. The tendencies are certainly not new, but I have a feeling that they have come more into the open especially in recent years."
"Medical experts in this field have time and again stated that for a transsexual the 'rebirth' he seeks to achieve with the assistance of medical science is only successfully completed when his newly acquired sexual identity is fully and in all respects recognised by law. This urge for full recognition is part of the transsexuals plight."
"Among the member states of the Council of Europe which allow the surgical re-assignment of sex to be performed on their territories, the United Kingdom appears to be the only state that does not recognise the legal implications of the result to which the treatment leads."
"In those societies which do permit it, it seems to me to be difficult to justify a refusal to recognise that successful gender reassignment treatment has had any legal consequences for the patient's sexual identity, although the context in which, and conditions under which, a change of sexual identity should be recognised is a complex question. But for the law to ignore transsexualism, either on the basis that it is an aberration which should be disregarded, or on the basis that sex roles should be regarded as legally irrelevant, is not an option. The law needs to respond to society as it is. Transsexuals exist in our society, and that society is divided on the basis of sex. If a society accepts that transsexualism is a serious and distressing medical problem, and allows those who suffer from it to undergo drastic treatment in order to adopt a new gender and thereby improve their quality of life, then reason and common humanity alike suggest that it should allow such persons to function as fully as possible in their new gender. The key words are 'as fully as possible': what is possible has to be decided having regard to the interests of others (so far as they are affected) and of society as a whole (so far as that is engaged), and considering whether there are compelling reasons, in the particular context in question, for setting limits to the legal recognition of the new gender."