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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Ryder, R (on the application of) v The Registrar of Births, Marriages and Deaths [2002] EWHC 1191 (Admin) (20 June 2002)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2002/1191.html
Cite as: [2002] EWHC 1191 (Admin)
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QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL | ||
B e f o r e :
____________________
| The Queen on the application of Paula Wilhemina Ryder | Claimant | |
- and - | ||
The Registrar of Births, Marriages and Deaths | Defendant |
____________________
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)
Ms Helen Mountfield (instructed by the Solicitor for The Department for Work and Pensions, Department of Health, 48 Carey Street, London WC2A 2LS) for the Defendant
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AS APPROVED BY THE COURT
Crown Copyright ©
- This is an application by the claimant Paula Ryder (“the Claimant”) for permission to apply for an order of judicial review quashing a decision dated the 25th July 2001 (“the Decision”) of the defendant the Registrar General (“the Defendant”) refusing to amend the Claimant’s birth certificate registering the Claimant as a female in place of the existing registration as a male.
- The Claimant was born on the 31st May 1949 with male genitalia (although barely formed) and was considered by the attending midwife to be a male child. The Claimant was accordingly registered as a male child and given the name Paul Ryder. As a child and adolescent the Claimant became aware of developing feminine characteristics and of a desire to behave more as a female than a male. At the age of 18 or 19, the Claimant sought medical help, which was not forthcoming. The Claimant lived both as a male and as a female, and in 1979 when living as a male went through a ceremony of marriage and thereafter as a male had sexual relations with the Claimant’s wife. There were no children. A diagnosis of the reasons for this revealed the Claimant’s low sperm count. This in turn led his GP to recommend that the Claimant have a chromosome analysis which in 1984 revealed that he suffered from Klinefelter’s Syndrome. The Claimant’s wife died in 1994 and in the same year the Claimant began to have psychosexual counselling and changed his name by Deed Poll to Paula Ryder. Gender reassignment surgery took place on the 7th January 1999.
- Since the date of that operation the Claimant has had all the outward characteristics of a female, female genitalia, and a wholly female appearance. The Claimant lives life as a female: the Claimant’s sexual orientation is directed towards seeking male partners and her sexual partners are male.
- In order to complete her sexual identity, the Claimant applied to the Defendant to amend her birth certificate to record her sex as female in place of male. The Defendant refused on two grounds: (1) that the registration as a male was correct when made: there was no error and for this reason he had no power to make any such amendment; and (2) that in accordance with the decision in Corbett v. Corbett [1971] P83 (“Corbett”) the Claimant’s sex was determined at birth and could not be changed by surgical means. The refusal prompted this application for permission to bring judicial review proceedings which, having been refused on paper, is now renewed before me. The application requires consideration whether the Defendant’s grounds for refusal are open to challenge.
- Section 1 of the Births and Deaths Registration Act 1953 (“the Act”) requires that the birth of every child born in England and Wales be registered by entering in the register “such particulars concerning the birth as may be prescribed”. It is common ground that the particulars prescribed include the sex of the child. Section 29(1) of the Act prohibits unauthorised alterations of the register; section 29(2) of the Act authorises the correction by the Defendant of clerical errors (a provision which, as is common ground, is inapplicable in this case); and section 29(3) of the Act provides that an error of fact or substance may be corrected by the Defendant by entry in the margin (without any alteration of the original entry).
- Ms Bradley QC (Counsel for the Claimant) argues that, whilst the Claimant was male when born and when registered as a boy, the Claimant has gone through a process culminating in the gender reassignment surgery leading to a change of sex from male to female, and that to complete and record her new sexual identity the Claimant requires and is entitled to a certificate of her identity as a female. To this end (it is submitted) the entry in the register should be corrected. Recognising that section 29(3) of the Act does not permit any alteration of the original entry, Ms Bradley was obliged to concede that any relief would have to be limited to a corrective entry in the margin.
- The first and foremost (and in my view insuperable) obstacle however in the way of her claim to correction of the register is that the register is a historical record: see Re P&G (Transsexuals) [1996] 2 FLR 90. It records the sex of the Claimant at the date of birth. As Ms Bradley concedes, there was never any error in the register as a historical record. It records correctly the fact that the Claimant was a male when the registration was made. The Act makes no provision for any updating to reflect a subsequent change in sex, no doubt in part at least because in 1953 it could not have been contemplated that in law any such change could take place. Whether or not the law now admits of such a change, there is no scope for reading the provisions of the Act as allowing for any reflection of that change in the register and it is well established that the absence of such a provision in the Act does not constitute any breach of the European Convention on Human Rights: see Re P&G above and cases there cited and the decision of the European Court of Human Rights in Sheffield & Horsham v. UK (1999) 27 EHRR 163. There is accordingly no scope for application of the rule of construction laid down by section 3 of the Human Rights Act 1998, but even if that section could be invoked the language of the Act would in my view be totally resistant to any construction which would assist the Claimant in this case.
- There is a second formidable obstacle in the way of the Claimant’s application. There is authority commencing with the decision in Corbett binding all courts below the House of Lords to the effect that sex is determined at birth and cannot subsequently be altered by any such operation as was undergone by the Claimant. By a majority of two to one the Court of Appeal so determined the law in the case of Bellinger v. Bellinger [2001] EWCA 1140. The majority recognised the momentum for change in English law to afford greater legal protection and recognition to transsexuals, but stated that that change would require legislation. The impending appeal to the House of Lords in that case and the persuasive dissent of Thorpe LJ do not detract from the binding force of that decision. Unless and until the House of Lords state the law to be otherwise, in my view permission to apply for judicial review in a case such as the present must likewise be refused on this second ground also.
- The reality is that the protection and recognition which the Claimant (with some justice) seeks in this case cannot be provided under, or by means of, any strained construction of the Act. It is perhaps possible that the law might one day develop so far as to recognise as a human right the entitlement on the part of transsexuals to issue of an identity card which records the current (as opposed to the historic) sex of the holder. A more likely scenario is that Parliament may either pass legislation authorising the issue (as for example in France) of identity cards, in which case a transsexual may have a human right to have recorded and reflected his change of sex on the card (see B v. France (1992) 16 EHRR 1); or Parliament may amend the Act so as to permit the register to be amended to record a subsequent change of sex. But whatever changes in the law there may be in the future, it is clear that the present claim cannot possibly succeed for the two reasons given by the Defendant, and I must accordingly refuse the permission sought.
Mr Justice Lightman:
INTRODUCTION
FACTS