Corbett v Corbett
Corbett v Corbett is a family law divorce case and referral to a court of binding precedent in the British judicial province of England and Wales, heard in November and December 1969. It includes a February 1971 appeal-level referred decision, which set out a detailed, narrow, legal set of criteria by which a very small minority of transgender people, those born intersex, could change their legal sex in the United Kingdom. The defendant, April Ashley Corbett, was not intersex but transsexual. There is no national court system in the United Kingdom, so the case has no precedential value in the judicial provinces of Northern Ireland or Scotland; only England and Wales.
| Family law |
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| Family |
Background
The decision confirmed the traditional view that the marriage of any transsexual person falling short of those criteria was void (until later legislative change). The case was brought not long before the Matrimonial Causes Act 1973 declared a period of marital separation with mutual consent as a standard reason to dissolve a marriage in simple paper form. Arthur Corbett, the plaintiff, sought a method of dissolving his marriage which took place with all of the usual formalities to transgender model April Ashley (or Corbett), who had brought a petition under the Matrimonial Causes Act 1965 for maintenance.
The husband's case to dismiss the marriage rested on the traditional view that April remained a man after her change of sex significantly before the marriage ceremony. The Court ruled that the marriage was void ab initio. A very full range of medical opinion on transsexual people was consulted by the Court. John Randell, the man who set up the first transsexual/transgender clinic at Charing Cross hospital, stated that Ashley was 'properly classified as a male homosexual transsexualist', while other court doctors preferred the description castrated male.[1] The judge Lord Justice Ormrod, created a medical 'test' and definition to determine the legal status of April Ashley. Ormrod set out four criteria for determining 'sex': (i) Chromosomal factors; (ii) Gonadal factors (i.e. presence or absence of testes or ovaries); (iii) Genital factors (including internal sex organs); (iv) Psychological factors. Transsexualism was deemed to fall under 'Psychological factors'.
The Court ruled that it was impossible to change sex and plainly distinguished legal statuses for which gender, which could change, was appropriate (National Insurance) from those for which sex was the determining category, among which marriage was the most prominent. The law was restated that marriage was necessarily between a man and a woman. It added that both were defined according to sex rather than gender. The ruling was then taken up and used to define the sex of transgender people for many purposes until the introduction of the Gender Recognition Act 2004 (which ultimately defined the sex of transgender people as whatever is on their birth certificate, until such point as a Gender Recognition Certificate amends the birth certificate; hence for those who do not possess such a certificate, nothing has changed since 1970).
As a result of LJ Ormrod's decision, alternative ways to achieve amendment of birth records for transsexual and intersex people ceased in England and Wales.
References
- Shopland, Norena. Forbidden Lives: LGBT stories from Wales, Chapter 17, "I have a certain amount of regrettable notoriety." Seren Books, 2017
- J Herring et al., Landmark Cases in Family Law (2011)