| Corbett v. Corbett | |
|---|---|
| Court | Probate, Divorce and Admiralty Division of theHigh Court of Justice |
| Full case name | Arthur Cameron Corbett v. April Corbett (Otherwise Ashley) |
| Decided | 2 February 1970 (1970-02-02) |
| Citation | [1971] P. 83, [1970] 2 All E.R. 33 |
| Court membership | |
| Judge sitting | Roger Ormrod |
| Case opinions | |
| Decision by | Ormrod |
Corbett v Corbett (otherwise Ashley) is a 1970family law divorce case heard between November and December 1969 by theHigh Court of England and Wales in whichArthur Corbett soughtannulment of his marriage toApril Ashley. Corbett had known at the time of the wedding that she had beenassigned male at birth and had undertakengender-affirming surgery. However, after the relationship had broken down, Corbett sought to end the marriage, with thegrounds for divorce being that the marriage had been invalid, as Ashley was assigned male at birth andsame-sex marriage in the United Kingdom was illegal at the time.
The court held that, for the purposes of marriage, sex was to be legally defined by three factors present at birth that the judge referred to as "biological" – namelychromosomal,gonadal andgenital. Any surgery or medical intervention was to be ignored, as were anypsychological factors (which were in this case identified with Ashley's "transsexualism"). The judge held that the marriage (which had to be between man and woman) should be annulled. Although the judgment was restricted to a consideration of legal sex specifically within marriage, its reasoning was later applied more widely within England and Wales.
The parties to the case were The Hon.Arthur Corbett, (future 3rdBaron Rowallan), a British aristocrat (the husband), andApril Ashley, a model and actress (the wife). Ashley had beenregistered male at birth in 1935 and had been raised as a boy, but by 1956 was working as what at that time was known as a "female impersonator" in the South of France.[1] In 1960 Ashley underwentsex re-assignment surgery inCasablanca, and became a successful model, photographed byDavid Bailey forBritish Vogue.[2][3]
Corbett and Ashley had met in 1960 and married in September 1963, Corbett doing so with full knowledge of Ashley's history and of the surgery.[4] Within 14 days the relationship had broken down. Ashley's lawyers wrote to Corbett in 1966 demandingmaintenance payments, and in 1967 he responded by filing suit to have the marriage annulled. As the case was brought prior to theMatrimonial Causes Act 1973 (which would have allowed divorce after a period of marital separation), other grounds had to be relied upon. Corbett argued that the marriage was null and void on the basis that Ashley had at the time of the ceremony been a person of the male sex; or alternatively that the marriage had never been consummated sexually.[1]
Lord Justice Ormrod, sitting in the Probate, Divorce, and Admiralty Division of theHigh Court of Justice, heard from a wide range of doctors, with each side calling three leading medical experts to give evidence. The judge noted: "there was a very large measure of agreement between [the experts] on the present state of scientific knowledge on all relevant topics, although they differed in the inferences and conclusions which they drew from the application of this knowledge to the facts of the present case."[1]
All of the medical experts agreed that there were at least four medical criteria to be used in assessing the sex of an individual, namely:[1]
Some of the expert witnesses also includedhormonal factors orsecondary sexual characteristics.[1]
The judge noted that the medical criteria did not necessarily decide the legal basis of sex determination, but that they were "of course, relevant".[1] John Randell, who had set up the firsttransgender clinic atCharing Cross Hospital, claimed that Ashley was "properly classified as amale homosexual transsexualist", while other witnesses preferred the description "castrated male".[5]
The judge held that for the purposes of marriage, sex was to be legally defined by only the first three factors listed above, which he called "biological" – namely chromosomal, gonadal and genital. Any "operative intervention" was to be ignored, as were any "psychological factors" (in this case identified with "transsexualism").[1] He explained:
It is common ground between all the medical witnesses that the biological sexual constitution of an individual is fixed at birth (at the latest), and cannot be changed, either by the natural development of organs of the opposite sex, or by medical or surgical means. The respondent's operation, therefore, cannot affect her true sex. The only cases where the term "change of sex" is appropriate are those in which a mistake as to sex is made at birth and subsequently revealed by further medical investigation.[1]
Having regard to the essentially heterosexual character of the relationship which is called marriage, the criteria must, in my judgment, be biological, for even the most extreme degree of transsexualism in a male or the most severe hormonal imbalance which can exist in a person with male chromosomes, male gonads and male genitalia cannot reproduce a person who is naturally capable of performing the essential role of a woman in marriage.[1]
After hearing the medical evidence, the judge held that Ashley was not a woman for the purposes of marriage but a biological male, and had been so since birth. On that basis, as "marriage is and always has been recognised as the union of man and woman", the marriage was held to bevoidab initio.[1]
The court was careful to limit the scope of the judgment to the determination of legal sex for the purpose of marriage. It was not, the judge said, his purpose to determine "legal sex" for other purposes; indeed, Ashley had already been accepted as a woman for the purposes of herNational Insurance contributions.[1]
The ruling in this case was used as the basis to define the legal sex of transsexual and transgender people for many purposes until the introduction of theSex Discrimination (Gender Reassignment) Regulations 1999, in an amendment to theSex Discrimination Act 1975. These Regulations defined "gender reassignment" as "a process which is undertaken under medical supervision for the purpose of reassigning a person's sex by changing physiological or other characteristics of sex".[6] In theEquality Act 2010 the requirement for medical supervision as a condition for legal recognition of a change of sex was removed.[7]
As a result of the decision in this case, alternative ways to achieve amendment of birth records for transsexual andintersex people ceased in England and Wales until the introduction of theGender Recognition Act 2004.[citation needed]
The decision of theCorbett v Corbett case runs counter to an earlier case, that ofSir Ewan Forbes in 1968. However, that case was not available at the time for consideration as aprecedent. Academic and LGBTQI+ advocate Zoë Playdon suggests that the decision in the Forbes case shows "there is apparently no reason why the benefits its precedent provides – a corrected birth certificate and equal civil status – should not be enjoyed by everyone else in the UK who like him has been born with the condition of transsexualism."[8] The Forbes case is the subject of Playdon's 2021 bookThe Hidden Case of Ewan Forbes.