Bellinger v Bellinger case note

Surely by signing the Human Rights Act then parliament intended the courts to be able to use the power. Section 3 of the Act obliges the court to interpret legislation ‘as far as it is possible to do so’ in conformity of with convention rights.  In passing the human rights parliament intended a different decision, during a debate on human rights Lord Irvine of Lairg, then Lord chancellor accepted the proposition  ‘the courts obligation will be to strive wherever possible, to read existing legislation in accordance with convention rights, using whatever interpretive tools they think fit’ The Court had an opportunity to take a bold pragmatic step in dealing with the issue of transsexualism but in deciding to leave it to parliament it was, as Anne Barlow states ‘ a missed opportunity’.

Furthermore, the courts supported their decision by looking at the functions within marriage, suggesting that it was for the ‘pro creation of children’. This is not a fair assessment. Many marriages are childless, many by choice. Would one therefore ask the couple what was the point? I struggle to believe so. The courts decision to look at the Christian perspective of marriage does not accommodate for our multi-religious increasingly secular society. Modern marriage is more often seen as a place to provide ‘mutual society, help and comfort.’

To add to this, the court stated that Mrs Bellinger’s case concerned ‘one individual and her particular condition and circumstances’ it was stated that therefore her case was not a ‘responsible basis in which to change the law’. Lord Nicholls of Birkenhead asserted that if the courts were to grant Mrs Bellinger a declaration then it would be asked time and again with new transsexual cases. It is however debatable that a court is distracted by the current case because of the possibility of other cases. This contradicts the development of common law.

Furthermore the court failed to see the case independently by suggesting that marriage is part of a wider issue. The courts also felt reassignment of gender recognition would affect dimensions of society other than marriage. Lord Nicholls of Birkenhead stated ‘the recognition of gender reassignment for the purpose of marriage is part of a wider problem which should be considered as a whole and not dealt with in a piece meal fashion‘. Changing the law on this should not be made in isolation from areas such as education, sports, criminal law etc.  This is a peculiar argument. As Stephen Gilmore states, ‘Taken to the extreme, it would preclude the courts deciding any individual case.’ However, it must be accepted that marriage is only one aspect regarding the complexities of transsexualism and the law.

The courts had an opportunity like in the case of W v W, which was similar in many ways to Bellinger. The respondent was born of indeterminate sex and was registered as a boy merely because the father wanted a boy. As the family court of Australia commented ‘It seems illogical that the courts can decide that marriage can extend to inter-sex persons, who can adopt the sex of their choice, but not to post operative or transsexual persons’ .  The case demonstrates the significance of psychological factors, being at least as important as biological factors.  The decision in the case  W v W that she was able to be seen as a woman showed respect by the courts, an approach which unfortunately was not followed.

Furthermore, it must be noted the case of Corbett seemed to be highly influential. Although the facts of both cases were extremely similar, there was no reason why Corbett should have been retained. The decision in Corbett caused a person suffering from gender identity disorder to live in a gender he or she may no longer be capable of fulfilling. Also in English law it means a person will be able to marry in their original sex, which would appear as a same sex marriage. This occurred between male to female transsexual Tracie-Ann Scott and Tina Louise Dixon.   The Courts however have left intact the decision in Corbett, which came under widespread criticism. Furthermore, Justice Chisolm clearly pointed out Corbett assumed the essential role of a woman in marriage is ‘concerned merely with matters of sex and biological sexual constitution’.  The Corbett case should have been scrutinised however should never have had such significance on the decision, which it was allowed.

The courts upheld their decision by refusing to affirm it was parliament‘s role to change the law on the issue of transsexualism, by looking at transsexualism as a wider issue. Also Corbett was used to support their argument, in which the role of a woman was looked at within marriage. However, the court did grant the request for a declaration of incompatibility under the Human Rights Act 1998. This encouraged parliament to bring in legislation. Unfortunately, the courts conservative approach meant that Mrs Bellinger had to wait longer for her rights which the Human Rights Act intended her to have

Subsequent developments

 Lord Nicholls of Birkenhead stated ‘ A change in the law a sought by Mrs Bellinger must be a matter for deliberation and decision by parliament when the forthcoming bill is introduced’. On 1st July 2004 the Gender Recognition Act received Royal Assent . S1 of the act allows ’A person of either gender who is aged at least 18 years may make an application for a gender recognition certificate‘.  S1 (3) states an application is to be determined by a gender recognition panel.  The legislation that was urged by the courts has been enacted and now a transsexual can be granted the opposite gender at birth after coming before panel.

(1467 words)

BIBLIOGRAPHY

Barlow Anne, 1 June 2001, Case Commentary: A New Approach To Transsexualism And A Missed Opportunity?  Jordan publishing limited 2001

2001 FamCa 1074 (Re Kevin) para 51

Bellinger v Bellinger 2003, UKHL 21, (2003) 1 FLR 1043

Gender Recognitions Act 2004, chapter 7

Brady Anthony, 1st August 2003 Developing human rights? The Lords and Transsexual marriages, Jordan Publishing limited 2003

 Hansard, Lords debates, vol 583, col 523 (18 November 1997)

Gilmore Stephen, 1 September 2003, Not quite between the ears and between the legs- Transsexualism and marriage in the Lords, Jordan Publishing Ltd 2003

W v W (Physical inter-sex) (2001) 2 WLR 674

2003 Fam CA 94 ( Nicholson CJ, Ellis and Brown JJ)

Press release ‘Mr Straw, stop passing the buck’ Thursday 2nd November 2000

 Bellinger v Bellinger and another (2001) 1 FLR 389, per Johnson J.

S11[c] of the Matrimonal Causes Act 1973

McConcill James, 1ST September 2003,Re Kevin and the Right of Transsexual Persons to Marry in Australia, Oxford University press 2003,

 

Fitzpatrick v Sterling House Association (2001) 1 AC 27

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