Bellinger v Bellinger

This appeal concerned whether a post-operative transsexual spouse could be treated as 'female' for the purposes of section 11(c) of the Matrimonial Causes Act 1973 so that a marriage celebrated in 1981 was valid. The House concluded that the statutory expressions 'male' and 'female' in section 11(c) could not be given the extended meaning necessary to treat as valid a marriage entered into in 1981 by a person born male who had since undergone gender reassignment. The court accepted that the European Court of Human Rights in Goodwin v United Kingdom had found that non-recognition of acquired gender was incompatible with Articles 8 and 12 ECHR, and accordingly made a declaration of incompatibility under section 4 of the Human Rights Act 1998. The Lords emphasised that the detailed policy, criteria and administrative arrangements for recognising reassigned gender are matters for Parliament, not the courts.

Background and facts.

Mrs Elizabeth Bellinger was born male on 7 September 1946, lived thereafter as a woman, and in February 1981 underwent gender reassignment surgery (removal of testes and penis and creation of an orifice described as an artificial vagina). On 2 May 1981 she and Mr Michael Bellinger went through a civil marriage ceremony. The registrar described her as a 'spinster' and did not enquire about gender history. Johnson J at first instance refused a declaration that the marriage was valid; the Court of Appeal, by a 2–1 majority, upheld that decision. Mrs Bellinger appealed to the House of Lords and, for the first time before that court, advanced an alternative claim that section 11(c) of the Matrimonial Causes Act 1973 was incompatible with Articles 8 and 12 of the European Convention on Human Rights.

Nature of the claims/applications.

• Primary relief sought: a declaration that the 1981 marriage was valid at its inception and is subsisting.
• Alternative relief: a declaration under section 4 of the Human Rights Act 1998 that section 11(c) of the Matrimonial Causes Act 1973 is incompatible with Articles 8 and 12 ECHR.

Issues framed by the court.

• Whether Mrs Bellinger was 'female' within the meaning of section 11(c) of the 1973 Act at the time of the 1981 ceremony.
• Whether section 11(c) is incompatible with Articles 8 and 12 of the Convention in the light of the European Court of Human Rights' decision in Goodwin v United Kingdom.
• Whether the courts should read the 1973 Act as compatible with the Convention under section 3 of the Human Rights Act 1998 or, alternatively, make a declaration of incompatibility under section 4.

Reasoning and decision.

The House reviewed the medical, social and legal context, distinguished transsexualism from inter-sex conditions, and summarised the traditional Corbett v Corbett test focussing on chromosomal, gonadal and genital factors. The Lords accepted the European Court of Human Rights' recent decision in Goodwin that non-recognition of acquired gender in many respects violated Articles 8 and 12, and noted the Government's acceptance of that position and intention to legislate. Nevertheless, the House held that the expressions 'male' and 'female' in section 11(c) are ordinary language expressions reflecting an immutable biological conception of sex for the legal purposes of nullity and that the courts were not equipped to prescribe the detailed criteria, policy or administrative scheme necessary to recognise acquired gender across the many areas of law affected. Section 3(1) of the Human Rights Act could not be used to reinterpret section 11(c) so as to validate the 1981 ceremony (and its interpretative obligation is not retrospective). For these reasons the appeal seeking a declaration of validity was dismissed. Because the incompatibility with Articles 8 and 12 was made clear by Goodwin and accepted by the Government, the House exercised its discretion to make a formal declaration of incompatibility under section 4 of the Human Rights Act 1998.

Appeal dismissed as to the primary claim that the 1981 marriage was valid. The House held that the words 'male' and 'female' in section 11(c) of the Matrimonial Causes Act 1973 could not properly be read to include persons who had undergone gender reassignment; that change of this legal position raised complex policy and administrative questions for Parliament; but because the European Court of Human Rights in Goodwin v United Kingdom had found non-recognition incompatible with Articles 8 and 12 and the Government accepted that position, the House made a declaration of incompatibility under section 4 of the Human Rights Act 1998.

First instance: Johnson J refused declaration that the marriage was valid (reported at [2001] 1 FLR 389). Court of Appeal: appeal dismissed by majority ([2001] EWCA Civ 1140; [2002] 2 WLR 411) with Thorpe LJ dissenting. House of Lords: appeal dismissed and declaration of incompatibility made ([2003] UKHL 21).