Corbett v Corbett

Corbett v Corbett is an English family law divorce case heard in November and December 1969 by the Probate, Divorce, and Admiralty Division of the High Court of Justice. The court's February 1970 decision 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 respondent in the divorce case, April Ashley Corbett, was not intersex but transsexual. Her husband, Arthur Corbett, had petitioned the court for an annulment on the grounds that April Ashley was a man and a marriage between two men was void.

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 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'.

Counsel for Arthur Corbett were Joseph Jackson, Q.C., and J.C.J. Tatham. Counsel for April Corbett were James Comyn, Q.C., and Leonard Lewis, Q.C.

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 Ormrod LJ's decision, alternative ways to achieve amendment of birth records for transsexual and intersex people ceased in England and Wales.

Relationship to other cases[]

The decision of the Corbett v Corbett case runs counter to an earlier British legal case, that of Sir Ewan Forbes in 1968 - however, as that case was subject to secrecy at the time it was not available for consideration as a precedent. Academic and LGBTQI+ advocate Dr Zoë Playdon suggests that the decision in the Forbes case shows "there is apparent 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."^[2] The Forbes case is the subject of her 2021 book The Hidden Case of Ewan Forbes.

See also[]

• Transgender rights in the United Kingdom
• Intersex rights in the United Kingdom

References[]

Bibliography[]

• Fallowell, Duncan & April Ashley (1982). April Ashley's Odyssey. London: Jonathan Cape. ISBN 9780224018494.

• Finley, Henry (1989). "Transsexuals, Sex Change Operations and the Chromosome Test: Corbett v. Corbett Not Followed". University of Western Australia Law Review. 19: 152–157.

• Fishbayn, Lisa (2007). "Not Quite One Gender or the Other": Marriage Law and the Containment of Gender Trouble in the United Kingdom". American University Journal of Gender, Social Policy & the Law. 15 (3): 413–441. Retrieved December 29, 2021.

• Gilmore, Stephen, "Corbett v. Corbett (Otherwise Ashley), [1971] P. 83, Corbett v. Corbett: Once a Man, Always a Man?", in Herring, Jonathan, Rebecca Probert & Stephen Gilmore (editors) (2011). Landmark Cases in Family Law. London: Bloomsbury. ISBN 9781847317872. {{cite book}}: |last= has generic name (help)CS1 maint: multiple names: authors list (link)

• Hutton, Christopher (2019). The Tyranny of Ordinary Meaning: Corbett v. Corbett and the Invention of Legal Sex. Cham, Switzerland: Palgrave Macmillan. ISBN 9783030202705.

• Probert, Rebecca (2005). "How would Corbett v Corbett be decided today?". Family Law. 52: 382–385.

• Stirnitzke, Audrey C. (2011). "Transsexuality, Marriage, and the Myth of True Sex" (PDF). Arizona Law Review. 53: 285–319. Retrieved December 29, 2021.

External links[]

• Full text of Lord Justice Ormrod's decision on the case
• Text of the decision in the case of W v W (October 2000), where the judge decided against annulment of a marriage