Protecting Human Rights in the UK - Case notes: Bellinger v Bellinger (Lord Chancellor intervening).

Decision and reasons behind it

The 2/1 majority decision in the Court of Appeal concurred with the decision reached in the House of Lords, that Mrs Bellinger could not be categorised as female for the purposes of s11 (c) of the Matrimonial Causes Act 1973.  Their decision was reached using the ‘Corbett'  factors which consider the presence and type of chromosomes, gonads and genitalia an individual possesses.  The dissenting Court of Appeal judge, Thorpe LJ was not of the view that the chromosomal factor should be regarded as relevant, due to its ‘invisibility’.  Thorpe’s line of reasoning was in accordance with that of the European Court of Human Rights ruling in Goodwin, that the single factor of having male chromosomes cannot inevitably lead to a male to female transsexual being denied legal recognition.  However, the Goodwin ruling did not convince the majority of the Court of Appeal, or any of the judges in the House of Lords to find that domestic law can allow a post-operative transsexual to marry in their ‘new’ gender.  Prior to Sheffield and Horsham the European Court of Human Rights had consistently found that use of the Corbett criteria was not a violation of the convention, instead using the margin of appreciation to justify its use in the UK.  Domestic courts have therefore not had to deal with perceived conflict between the convention and domestic law in this area until this case came before them.

In the House of Lords, Lord Nicholls opinion that biological factors should be taken into account to determine a persons gender, becomes apparent early in his judgement.  Following a discussion of Goodwins discouragement of such an approach, he goes on to say, regarding how to decide if a person is male or female, that

        “Self-definition is not acceptable.  That would make a nonsense of the underlying biological basis of the distinction”

As he is not willing to legally recognise transsexuals in their new sex in this case, his assertion that to do so would require some blurring of the biological distinction between male and female, reinforces his view that it is the biological distinction that should prevail.

Lord Nicholls explicitly states that he would not extend the terms ‘male’ and ‘female’ in s11 (c) of the Matrimonial Causes Act to include post-operative transsexuals.  Lord Hope of Craighead agreed, saying that the terms

        “must be given their ordinary, everyday meaning”

He also refers to dictionary definitions that concentrate on the reproductive functions of the respective genders.  

Lord Nicholls fails to consider, at least openly, the possibility of interpreting the statute in order to give effect to convention rights, as is permitted under s3 (1) of the Human Rights Act 1998.  He prefers instead to simply say that it is an issue that is for parliament to legislate upon, considering the wider issues, and that intervention by the courts would be inappropriate, particularly as parliament is intending to review the matter.  

Lord Hope considers the use of s3 (1) but feels that stretching the meaning of ‘male’ and ‘female’ to apply to post-operative transsexuals ‘new’ gender would be akin to judges legislating, as opposed to interpreting legislation, and he also decides it is a matter best left to parliament.

Lords Hope and Nicholls are in agreement that the law on the issue of transsexual marriage needs to be clear and consistent.  Hope states that Corbett achieved this, and Nicholls provides a list of issues that should be examined in trying to achieve that consistency again, in light of the Goodwin decision.

The other three judges agreed with the leading judgements of Lord Hope and Lord Nicholls.  All concluded that s11 (c) of the Matrimonial Causes Act 1973 should be declared incompatible with articles 8 and 12 of the European Convention on Human Rights, and that the marriage between Mr and Mrs Bellinger was, and at no time had been valid.

Critique

The leading judgements in Bellinger seem to evade tackling directly the human rights issues raised, although there is sympathy expressed for Mrs Bellinger, little attention is paid to what her rights being given in accordance with the convention, would actually bring in terms of practical benefit in this individuals circumstances.  The main aim of the judiciary in the case would appear to be to uphold deference to parliament.  

The sovereignty of parliament has been a controversial issue surrounding the incorporation of the European Convention on Human Rights, long before the Human Rights Act became part of domestic law.  The judges agreed wholeheartedly with the statement made by Black-Branch, that

“Parliamentary sovereignty means that Parliament is competent to make any law on any matter of its choosing and no court may question the validity of any Act that it passes. In enacting legislation, Parliament is making decisions about important matters of public policy. The authority to make those decisions derives from a democratic mandate.”

Parliament not judges ultimately has the power to change legislation.

        “The Human Rights Act takes account of and builds on the UK’s current constitutional procedures and the principle of the sovereignty of parliament”

But whether this is the most productive method of protecting fundamental rights is questionable.  The protection of human rights is primarily about protecting individuals from uninhibited government power, yet all power with regard to controlling those rights decisively lies with government under the UK constitution.  So the very body the legislation should be aimed at protecting people from, actually gave up none of its power under the Human Rights Act 1998.  Once again from the perspective of Black-Branch

“The method of protecting human rights is inadequate and unnecessarily cumbersome. Moreover, it serves to politicise rights in a most inappropriate manner. The main purpose of protecting human rights under law should be to remove such decisions from political grasp.”

However, at the other end of the debate, if the Human Rights Act had given judges the ability to strike down legislation, this would also be open to criticism.  The commentator in such circumstances may be cautious of an unelected, and therefore largely unaccountable judiciary, been capable of effectively legislating, albeit in a negative fashion, on any matter, whether in relation to fundamental rights or otherwise.

The approach employed regarding incompatible legislation’s that the judiciary can make a declaration of incompatibility.  This, as a result of the difficulties in simultaneously maintaining parliamentary sovereignty whilst giving effect to convention rights, creates an uneasy compromise.  In the context of Bellinger this is apparent through the undiluted deference paid to parliament and its will.  This can be evidenced particularly well by the words of Lord Nicholls

        “Questions of social policy and administrative feasibility arise at several points, and their interaction has to be evaluated and balanced.  The issues are altogether ill-suited for determination by courts and court procedures.”

The fact that the issue at stake is one which may seriously infringe the fundamental rights of an individual are not the priority of the court.  Their utmost concern is preserving the constitutional framework, which place parliament at the top of the hierarchical chain of the functions of the law.  

The complete deference to the will of parliament, as highlighted by Lord Nicholls prevents the courts from properly employing the principle of proportionality in this case.  As explained in the FEDESA case, proportionality involves the courts making a judgement based on a balance of all the factors involved in a case

        “where there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued”

The European Court of Human Rights had already ruled that the restriction on refusing to classify post-operative transsexuals for all purposes is beyond the UK's margin of discretion.  This would have made it permissible or even desirable for the courts to at least engage in discussion about whether the decision to refuse recognition to a transsexuals ‘new’ gender with regard to the issue of marriage is proportionate.   Is the aim of the law in refusing to give that recognition fair, and does it give proper weighting to Mrs Bellingers fundamental rights?  Little reference is made to the substance of the decision reached; instead the leading judgements rely on the technicalities of confused case law, and deference to parliament in making its decision.  The discretion allowed in interpreting domestic legislation is also not employed, for the very same reason that the court wished to show that it is subordinate to parliament.

This is apparent through the refusal to use the interpretative obligation allowed in s3 (1) of the Human Rights Act in even a limited sense to allow an express judgement that would have been in accordance with the European courts ruling in Goodwin.  There is no double meaning or ambiguities in the statute provision in question, namely s 11 (c) of the Matrimonial Causes Act.  What would be required for the court to have reached a different conclusion is more of a stretching of the terms involved.  Lord Hope expressly says that he does not feel that a post-operative male to female transsexual would be classed as female in the everyday use of contemporary language in this country.  He gives no basis for such a presumptuous stance, simply declaring that he has been presented with no evidence to the contrary.  

As biological factors (the presence of male chromosomes in Mrs Bellinger) cannot be the sole factor in refusing to recognise her as female, according to Goodwin, then surely the refusal of the courts to use their discretion in employing s3 (1) of the Human Rights Act is difficult to justify.  As an observer, it is not possible for me to meet the same proverbial ‘brick wall’, as Lord Hope seems to in his contemplation surrounding the interpretation of the statute.  The provision has not been interpreted as far as possible in light of the convention.  Other matters have dominated the reasoning of the judges in not doing so.  Mrs Bellinger has lived her life as a female successfully for a number of years, and has been accepted as a female by society, so there seems to be little in the way of logical reasoning that justifies denying her the right to marry as a female.  This is recognised as a basic fundamental right in modern civilised society, and should not therefore be denied to an individual without good reason.  There seems at first to be no competing legitimate aims in this case, as there appears to be no warranted premise upon which to deny Mrs Bellinger the declaration that her marriage is valid.  However, the certainty of the law would be brought into question as case law has refused to recognise the validity of marriages in similar circumstances between the time of the Matrimonial Causes Act, and the date of this case.  

There is also the issue in this case about whether the right to marry in article 12 is actually part of our domestic law as it is not part of the Human Rights Act.  The judges in Bellinger have taken the line that it is part of our law, as much as any other provision which was explicitly brought into domestic law with the Human Rights Act.  Previous to the 1998 act, the common law was often cited by judges as protecting the fundamental rights of individuals, as in Derbyshire at the Court of Appeal.  This was a ruling that contained much reference to the convention, yet said there was no need to rely upon it as the same answer could be found in the common law.  Domestic courts then wish to be seen to be protecting rights in the same way as the European Convention does, regardless of the provisions been part of the Human Rights Act 1998.

This gives rise to whether other treaties that aim at protecting fundamental rights can be relied on in the domestic arena.  Article 6 of the European Unions Charter on Fundamental Rights asserts the right to liberty and security and respect for private and family life, although it is limited in its scope as it is aimed only at EU citizens.  Article 16 of the Universal Declaration of Human Rights has a similar tone, giving the right to marry without limitation due to race, nationality or religion, but makes no mention of gender.  It is unclear, but doubtful whether engaging these alternative treaties, which have lesser status in the UK than the European Convention, would actually have produced a different result.

Taking the case of Bellinger on the whole it is clear why the judges reached the conclusion that they did, but their reasons for making their decisions are more dubious.  There was little choice but to find that s11 (c) of the Matrimonial Causes Act could not be stretched to cover a post-operative male to female transsexual, if only to maintain the position of previous case law.  That parliament had expressed an intention to legislate on the issue in question does have a significant impact on the judges use of discretion in respect of s3 (1).  However, that section states that as far as it is possible to do so domestic legislation should be interpreted to be compatible with convention rights.  It makes no mention of any factors that may alleviate this duty.  By simply making declarations of incompatibility, the court has managed to avoid serious conflict with parliament, whilst still having regard to the convention and its purpose.

Bibliography

Cases

Corbett v Corbett (orse Ashley) [1970] 2 WLR 1306

Sheffield and Horsham v United Kingdom (1998) 27 EHRR 163

Goodwin v United Kingdom (2002) 35 EHRR 447

R v Ministry of Agriculture Fisheries and Food, ex p FEDESA [1990] ECR I-4023

Derbyshire County Council v Times Newspapers [1992] 1 QB 770

Statutes

Matrimonial Causes Act 1973

Human Rights Act 1998

International Treaties

The European Union Charter on Fundamental Rights

The Universal Declaration of Human Rights

Journals

Black-Branch, J.L. Parliamentary Supremacy or Political Expediency?: The Constitutional Position of the Human Rights Act Under British Law”, Statute Law Review, 2002, 23 (59)

Mcgoldrick, D, The United Kingdoms Human Rights Act 1998 in theory and practise” International and Comparative Law Quarterly, volume 50, 2001

Texts

Hunt, M. Using Human Rights Law in English Courts, 1997, Hart Publishing, Oxford

Hoffman, D. Rowe Q.C., J. Human Rights in the UK An Introduction to the Human Rights Act 1998, 2003, Pearson Longman, Dorset

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