Bellinger v Bellinger

The Court of Appeal dismissed the appeal. For a transsexual, the Corbett biological criteria remained the only reliable basis for assigning sex at birth, except where the person was inter-sexed. Medical advances and psychological evidence did not provide a sufficiently certain test for recognising a later change of gender status.

Marriage was a matter of status and public policy. Whether a post-operative transsexual should be treated as belonging to the acquired sex for marriage, and what conditions should govern recognition, required a statutory framework and policy choices. Those choices belonged to Parliament. The court nevertheless considered the existing position profoundly unsatisfactory and urged governmental action. Thorpe LJ dissented, favouring a broader, psychologically informed construction of section 11(c).

Elizabeth Ann Bellinger was registered male at birth, underwent hormone treatment and gender reassignment surgery, and married Michael Bellinger in 1981. She sought under the Family Law Act 1986, section 55, a declaration that the marriage was valid at inception and subsisting. Johnson J refused the declaration, applying the approach in Corbett v Corbett [1971] P 83. The Attorney General opposed the petition and intervened.

The appeal concerned whether modern medical knowledge and social change permitted the court to recognise the appellant as female for the purposes of marriage under section 11(c) of the Matrimonial Causes Act 1973.

Majority: Dame Elizabeth Butler-Sloss P and Robert Walker LJ dismissed the appeal.

1. The biological criteria identified in Corbett v Corbett [1971] P 83 remained the only available basis for assigning sex at birth to a person whose biological criteria were congruent. The exception was physical inter-sex, where the criteria were incongruent. Research into brain differentiation was limited and inconclusive, and psychological evidence did not identify a sufficiently certain point at which a transsexual became legally a member of the acquired sex.
2. Marriage was a matter of status and public policy. The question whether a person’s gender status could change after birth, and the conditions for recognising such a change, required a clear statutory framework. The court could not arbitrarily select a stage of treatment or impose policy-based preconditions under section 11(c) of the Matrimonial Causes Act 1973.
3. W v W [2001] Fam 111 concerned physical inter-sex and an uncertain sex at birth. It was therefore distinguishable and did not assist a transsexual who had been unambiguously male at birth. Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27 confirmed that courts may interpret statutory language in its context, but cannot fill a policy gap. The observations in Re F (In Utero) [1998] Fam 122 were regarded as equally apposite.
4. The majority added that the present position was profoundly unsatisfactory. The Government was urged to act on the Working Party’s recommendation for public consultation.

Dissent: Thorpe LJ considered that the physiological approach in Corbett v Corbett was no longer secure. He would have treated psychological gender, medical treatment and post-operative functioning as relevant, construed “female” broadly under section 11(c), and allowed the appeal.

The formal order was: appeal dismissed; detailed assessment; permission to appeal to the House of Lords refused.

1. Court of Appeal (Civil Division): The appeal was dismissed by Dame Elizabeth Butler-Sloss P and Robert Walker LJ, with Thorpe LJ dissenting.
2. Family Division: Johnson J refused the appellant’s petition on 2 November 2000, holding that she remained male for the purposes of marriage under the approach in Corbett v Corbett [1971] P 83.