Bellinger (FC) (Appellant) v. Bellinger
69. Her problem would be solved if it were possible for a transsexual to marry a person of the same sex, which is indeed what the European Court of Human Rights has now held should be the position in Goodwin. The court noted in para 100 of its judgment that article 9 of the Charter of Fundamental Rights of the European Union had departed "no doubt deliberately" from the wording of article 12 of the Convention in removing the reference to "men and women of marriageable age." Article 9 of the Charter states simply that "the right to marry" shall be guaranteed. The note to article 9 says that it neither prohibits nor imposes the granting of the status of marriage to unions between people of the same sex. It appears that the European Court saw that article as opening up the possibility of transsexuals marrying persons of the opposite sex to their post-operative acquired gender, as it rendered arguments about whether they were in act of the opposite sex irrelevant. By this route, which bypasses the physical problems which are inherent in the notion of a complete sex change, legal recognition can be given to the acquired gender of post-operative transsexuals. But it is quite impossible to hold that section 11(c) of the 1973 Act treats the sex of the parties to a marriage ceremony as irrelevant, as it makes express provision to the contrary. In any event, problems of great complexity would be involved if recognition were to be given to same sex marriages. They must be left to Parliament. I do not think that your Lordships can solve the problem judicially by means of the interpretative obligation in section 3(1) of the 1998 Act.
70. So I too would dismiss the appeal. But I too would make a declaration that section 11(c) of the Matrimonial Causes Act 1973 is incompatible with Mrs Bellinger's right to respect for her private life under article 8 and with her right to marry under article 12 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.LORD HOBHOUSE OF WOODBOROUGH
71. I agree with my noble and learned friends Lord Nicholls of Birkenhead and Lord Hope of Craighead that the appeal should be dismissed but that a declaration of incompatibility should now be made under s.4 of the Human Rights Act 1998.
72. The parties went through a ceremony of civil marriage before a registrar of marriages under the Marriage Act 1949 on 2nd May 1981. At that date the Act which governed the legal validity of a purported marriage under English law was s.11 of the Matrimonial Causes Act 1973: "A marriage celebrated after 31st July 1971 shall be void on the following grounds only, that is to say - ..... (c) that the parties are not respectively male and female; ...." The appellant gave her name to the Registrar of Marriages as Elizabeth Ann Wilkinson describing herself as a "spinster". Like your Lordships I will use the words 'she' or 'her' in relation to the appellant without begging the question in issue whether she was in truth female at the time she married Mr Bellinger in 1981.
73. At that date and, indeed, until the judgment of the European Court of Human Rights in the case of Goodwin (28957/95),  35 EHRR 18, it was the authoritative view that a refusal by domestic law to recognise 'transsexual' marriages (a term to which I will have to revert) did not contravene Article 12 of the Convention. The judgment in Goodwin expressly recognised that this had been the result of the earlier cases of Rees, Cossey, and Sheffield and Horsham: see paragraphs 73-75 and 97-104 of the judgment. Until the delivery of the Goodwin judgment the appellant would have had no basis for any attack upon propriety of s.11 of the 1973 Act.
74. The judgment in Goodwin is, if I may say so, thoughtful and appreciates the complexity of the problems created for many aspects of the law by a novel recognition of the concept of a voluntary change of gender. The new approach may reflect new social attitudes to questions of sexuality but the more specific changes in society and the law which should follow from the recognition of the new attitudes are much more difficult to evaluate and provide for. For example, in the present context, to what extent do you change the fundamental concept of marriage? What new criteria do you apply? Once you make this change, how do you, in a non-discriminatory way, deal with mere cohabitees or with homosexuals of the same gender? The judgment refers in paragraph 91 and the preceding paragraphs to the report of the UK Interdepartmental Working Group (April 2000) and the very substantial difficulties which it identified but also pointed out that they were not considered to be insuperable. The Court also observed in paragraph 103 that "though there is widespread acceptance of the marriage of transsexuals, fewer countries permit the marriage of transsexuals in their assigned gender than recognise the change of gender itself". However the Court concluded that there had been a breach of, inter alia, Article 12 because, although the Member States must be given a reasonable opportunity to decide how to revise their national legislation and make the appropriate changes, there came a time when the United Kingdom's continued failure to do so amounted to a denial of the right to marry protected by Article 12: see paragraphs 52, 53, 102-4, and 120.
75. The present case concerns a 'transsexual', that is to say, someone who wishes to change her existing gender and assume the opposite gender. This case is not concerned with gender mis-assignment nor with mixed or 'intersex' gender. The appellant was born a male with all the characteristics of a male. She was correctly assigned the male gender at birth and in her birth certificate. In 1967/8, when 21, she married a woman. (She did not disclose this fact to the registrar in 1981.) But the marriage was childless and did not last; they were divorced in 1975. She assumed the female gender dressing and living as a woman. In February 1981, following hormone treatment from a specialist, she underwent gender reassignment surgery as described by my noble and learned friend Lord Nicholls. This was irreversible in the sense that thereafter she could never be fully restored so as to be an anatomically complete male.
76. Gender reassignment is an established medical procedure in various stages involving both diagnoses by the specialist and informed choices being made by the patient. There was uncontested expert evidence given about this at the trial. Conveniently, it is also summarised in the judgment in Goodwin. The condition of dissatisfaction with one's sexuality at a level justifying medical intervention is a medically recognised mental disorder (DSM-IV). It reflects a pathological degree of dissatisfaction with one's existing gender. The specialist has to study the patient over a period of time and confirm the diagnosis and ascertain that the patient is definitely willing to take the next steps. Firstly the patient must become used to living as a member of the opposite sex. Then the patient will be given courses of hormone treatment to change his/her hormonal make-up to that of the preferred sex. This reinforces the social changes already undertaken. Finally various degrees of gender reassignment surgery are undertaken. It is not until this last stage that the changes may become anatomically irreversible. At any previous stage the patient may change his/her mind and decide that he/she does not want to make the change or not go any further. In the present case the appellant was steadfast in her intentions and went as far as she could, given the considerable limitations of gender reassignment. But the question of transsexualism includes definitional questions of how far the person must go in order to qualify as a transsexual. Is merely assuming the life and clothing of a woman enough or must it include irreversible gender reassignment? Or something in between? There are cogent arguments against adopting any specific criterion. A further question which arises is referred to in paragraph 50 of the Goodwin judgment, noting: "Many people revert to their biological sex after living for some time in the opposite sex and some alternate between the two sexes throughout their lives." All this underlines the novelty of the idea of gender by choice and how great a departure it represents from the pre-Goodwin human rights law and the previous understanding of what the words "respectively male and female" meant. Similar fundamental novelties and changes in the use of language, culturally controversial, are involved in giving effect to the ECtHR's interpretation of the word "marry" in Article 12.
77. The appellant's primary claim was for a declaration under s.55 of the Family Law Act 1986 that her marriage to Mr Bellinger in 1981 was "at its inception a valid marriage". For the reasons given by my noble and learned friends and for the additional reasons I have given and those to be given by my noble and learned friend Lord Rodger of Earlsferry, the claim must fail and the appeal be dismissed. The 1981 wedding was not valid.
78. But that still leaves the question whether the House should make a declaration of incompatibility under s.4 of the Human Rights Act 1998. The threshold question is whether, by applying s.3, it is possible, as a matter of interpretation, to 'read down' s.11 (c) of the 1973 Act so as to include additional words such as "or two people of the same sex one of whom has changed his/her sex to that of the opposite sex". This would in my view not be an exercise in interpretation however robust. It would be a legislative exercise of amendment making a legislative choice as to what precise amendment was appropriate. Counsel for the Lord Chancellor on behalf of the Government did not argue otherwise. Counsel also did not argue that Goodwin was wrongly decided nor that the UK was not under a treaty obligation to comply with it. But, effectively repeating arguments made unsuccessfully in Strasbourg, submitted that the House should not exercise its discretion under s.4 having regard to the difficulty of deciding upon new policies and drafting new legislation. These difficulties exist but much time has elapsed; the Working Group reported in April 2000; the Court of Appeal commented as strongly as it was proper for them to do so at the lack of progress in July 2001 and the ECtHR has made its decision in Goodwin on the basis that the permitted time for compliance has expired. The argument for further time is now itself incompatible with the rights conferred by the Convention.
79. But counsel also argued that, in view of his concession that Goodwin bound the United Kingdom, any declaration would be academic and its purpose was merely to confer a power to expedite legislation under s.10. These arguments must be rejected. The Appellant and Mr Bellinger in exercise of their rights under Article 12 would wish to enter into a valid marriage as soon as the UK legislation enables them to do so. Others may wish to do the same. The Government can not yet give any assurance about the introduction of compliant legislation. There will be political costs in both the drafting and enactment of new legislation and the legislative time it will occupy. The incompatibility having been established, the declaration under s.4 should be made.
LORD SCOTT OF FOSCOTE
80. I have had the great advantage of reading in advance the opinions on this case of my noble and learned friends Lord Nicholls of Birkenhead and Lord Hope of Craighead. I find myself in complete and admiring agreement with their analysis of the issue arising in the case and with their conclusions on that issue. I cannot improve on what they have said or add anything useful. I would dismiss the appeal for the reasons they have given and make the proposed declaration of incompatibility.
LORD RODGER OF EARLSFERRY
81. I have had the privilege of considering the speeches of my noble and learned friends Lord Nicholls of Birkenhead, Lord Hope of Craighead and Lord Hobhouse of Woodborough in draft. I agree with them and, for the reasons they give, I too would make the declaration of incompatibility which they propose but would otherwise dismiss the appeal. I add a point about the language of the relevant legislation.
82. The submissions for Mrs Bellinger presuppose that, in relation to marriage, English law envisages that a person's gender can alter. The form of section 11(c) of the Matrimonial Causes Act 1973 indicates that this is not so.