Bellinger (FC) (Appellant) v. Bellinger

For the purposes of section 11(c) of the Matrimonial Causes Act 1973, the words “male” and “female” bear their ordinary biological meaning. They do not include a person in the sex acquired through gender-reassignment treatment.

Judicial extension of those words would require major social-policy choices and amount to legislation. Section 3 of the Human Rights Act 1998 neither applies retrospectively to validate an earlier marriage nor permits such statutory amendment.

Continued failure to recognise acquired gender for marriage is nevertheless incompatible with articles 8 and 12 of the Convention. A declaration under section 4 may be made despite proposed corrective legislation.

Bellinger (FC) (Appellant) v. Bellinger concerned a person registered male at birth who underwent male-to-female gender-reassignment treatment before participating in a marriage ceremony with a man in 1981. She sought a declaration that the marriage had been valid from its inception.

Johnson J refused the declaration: [2001] 1 FLR 389. The Court of Appeal dismissed her appeal by a majority: [2001] EWCA Civ 1140; [2002] 2 WLR 411. Before the House she alternatively sought a declaration that section 11(c) of the Matrimonial Causes Act 1973 was incompatible with articles 8 and 12 of the European Convention on Human Rights.

The questions were whether “male” and “female” could include an acquired gender for marriage and, if not, whether the statutory rule should be declared incompatible with Convention rights.

1. Disposition. The House unanimously dismissed the appeal against the refusal to recognise the 1981 ceremony as a valid marriage. It unanimously declared section 11(c) of the Matrimonial Causes Act 1973 incompatible with articles 8 and 12 of the European Convention on Human Rights.

2. Meaning of “male” and “female”. Lord Nicholls delivered the leading speech. Lord Hope gave concurring reasons, and Lords Hobhouse, Scott and Rodger agreed with the dismissal. The ordinary statutory meaning treated a person’s sex as fixed by the relevant biological characteristics. Gender-reassignment treatment could substantially alter appearance and social identity but could not effect a complete biological change. The approach in Corbett v Corbett [1971] P 83 therefore continued to govern the validity of the marriage.

3. Legislative responsibility. Per Lord Nicholls, legal recognition of acquired gender required objective and sufficiently certain criteria. Difficult questions arose concerning the necessary treatment, the relevant point of transition, the purposes for which recognition should operate, existing marriages, birth certificates and other gender-specific laws. Extending “male” and “female” judicially would make a major and far-reaching change. Those interconnected policy choices required legislation after public consultation.

4. Limits of interpretation. Per Lord Hope, section 3(1) of the Human Rights Act 1998 was not retrospective and could not determine the validity of the 1981 ceremony. In any event, the interpretative obligation did not authorise judicial legislation. Lord Hobhouse likewise held that rewriting section 11(c) to encompass a person who had acquired the other gender would be legislative amendment rather than interpretation.

5. Convention incompatibility. Per Lord Nicholls, the decision in Goodwin v United Kingdom (2002) 35 EHRR 18 established that continuing non-recognition of acquired gender for marriage no longer fell within the United Kingdom’s margin of appreciation. Section 11(c) remained a continuing obstacle and was incompatible with articles 8 and 12.

6. Declaration under section 4. The Government’s intention to legislate did not restore compatibility or make a declaration pointless. Per Lord Nicholls and Lord Hobhouse, a formal declaration by the final appellate court was appropriate and recorded the existing incompatibility. Lord Hope, Lord Scott and Lord Rodger agreed.

1. House of Lords: In Bellinger (FC) (Appellant) v. Bellinger [2003] UKHL 21, the House unanimously dismissed the appeal but declared section 11(c) of the Matrimonial Causes Act 1973 incompatible with articles 8 and 12 of the European Convention on Human Rights.
2. Court of Appeal: By a majority, the court dismissed the appeal and adhered to the existing biological approach: [2001] EWCA Civ 1140; [2002] 2 WLR 411. Thorpe LJ dissented.
3. High Court: Johnson J refused to declare that the marriage was valid: [2001] 1 FLR 389.