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22 March 2011

Roger Ormrod - part 2: Corbett v Corbett.

 Continued from Part 1: Roger Ormrod (1911- 1992) barrister, doctor, judge.

Arthur Corbett, the heir apparent to the Rowallan Baroncy, had been married since 1963 to his second wife, the one-time model April Ashley but they had been living apart for some years. In 1970, Lady Corbett wishing to obtain the deeds for the house where she was living but which were in Arthur's possession, and getting no response, initiated a claim for maintenance instead. She was granted £6 a week in that her husband was working as a barman in Marbella at an estimated £18 a week. This of course did not take into account his assets.

Arthur Corbett replied by applying for an annulment of his marriage.  He did not care to wait for the new divorce law for he did not wish to pay alimony. Although he had been fully cognizant of Ashley's past when he married her, and in fact had pursued her precisely because of that past, Corbett the petitioner filed a petition for a declaration that the marriage was null and void because the respondent was a person of the male sex, or alternatively for a decree of nullity on the ground of non-consummation. Ashley, granted legal aid for her defence, asserted that she was female at the time of the marriage, and filed for a decree of nullity on the ground of either the petitioner’s incapacity or his willful refusal to consummate the marriage.

The case was tried by Justice Ormrod, which was considered appropriate as he was the only UK judge to be also qualified as a doctor.

Although Lady Corbett's transsexual status was not contested by the defence, she was examined several times. First by the medical inspectors to the court, one of whom described the respondent as having a 'cavity which opened on to the perineum’. April's blood was examined by Professor FTG Hayhoe, a chromosome expert at Cambridge.

Next, for the defence, her person was examined by Dr Charles Armstrong of the Royal Victoria Infirmary in Newcastle, Ivor Mills Professor of Medicine at Cambridge and Martin Roth, Professor of Psychiatry at the University of Newcastle upon Tyne. The doctor professors even wrote to Dr Burou in Casablanca for details. Dr Burou did not deign to reply.

For the plaintiff she was examined by John Dewhurst, Professor of Obstetrics and Gynaecology at Queen Charlotte's Hospital and co-author of The Intersexual Disorders, 1969, Dr Charles Dent, Professor of Human Metabolism at the University College Hospital (who also had been one of the allied doctors sent to Belson Concentration Camp) and Dr John Randell of the Charing Cross Hospital Gender Identity Clinic. Dr Dewhurst performed the three-finger test, the then standard method of determining that a vagina can accommodate a penis.

At the trial, Dr Randell testified that he ‘considered that the respondent is properly classified as a male homosexual transsexualist'. Dr Dewhurst said: ’the pastiche of femininity was convincing’. Dr Armstrong testified that Lady Ashley was a pre-birth intersex and should be assigned to the female sex. Dr Roth was prepared to regard the case as one of inter-sex. The 1965 case of Ewan Forbes, as which Dr Armstrong had also testified, but which has never been entered into the public record, was not taken as a precedent, or even mentioned.

Judge Ormrod agreed with Dewhurst and Randell that when chromosomal, gonadal and genital sex are concordant, little regard should be given to psychological factors, and cut short attempts to widen that discussion.

April felt that Ormrod did not like her. "He never once looked me straight in the eye but glanced furtively in my direction and mumbled his references to me as if they were distasteful to him"(1983:214).

Arthur Corbett admitted his promiscuity with both men and women, and his visits to male brothels to be dressed as a woman. He portrayed himself as a pervert to cast his marriage to April as little more that a prank. A few days into the case, Judge Ormrod asked if it were necessary to continue wasting the tax-payers' money, but the barristers for both parties protested that it was important to hear the evidence in full.

The trial ended on 9 December, but the judgement was not read until 2 February 1971. Arthur was found that morning in a coma at his villa in Spain and thus did not attend the hearing.

Justice Ormrod included an unneeded and indeed impertinent description of the respondent: "Her outward appearance, at first sight, was convincingly feminine, but on closer and longer examination in the witness box it was much less so. The voice, manner, gestures and attitude became increasingly reminiscent of the accomplished female impersonator." He compared the current case to that of S v S 1962 where a woman [possibly intersex] with a defect of the vagina was held to be a woman in that her chromosomes, gonads and genitals were concordant. He also noted that the Sexual Offences Act 1967 (which decriminalized male homosexuality) "seems to have removed any legal objections which there might have been to such [sex change] procedures".

He then summarized the expert knowledge at that time of transsexualism and intersex conditions, and agreed with Randell and Dewhurst that in an intersex person "the chromosomal sex and the gonadal sex do not correspond with the genital condition of the patient", and that psychological factors were important only when the biological criteria were not congruent, while noting that Armstrong and Mills regard transsexuals as a type of intersex. He wondered if the respondent had Klinefelter's syndrome, but found that such a conclusion had not been established.

He granted Arthur Corbett’s prayer: "My conclusion therefore is that the respondent is not a woman for the purposes of marriage, but is a biological male and has been so since birth. It follows that the so-called marriage of 10 September 1963 is void." As April had been born with male chromosomes, gonads and genitals she was legally male in perpetuity.

Corbett v Corbett became case law in the UK and in Australia. The correcting of birth certificates for many intersex and all transgender persons ceased, and such persons lost the legal right to be treated as their new gender – in particular to marry a person of the now opposite gender.   Mrs Corbett had not been successful in attempting to have her birth certificate corrected, and now was prohibited from doing so.

Justice Ormrod also cancelled the £6 a week alimony payment.

In March 1971, a month later,  a court in Grasse, France, in the case of Hélène Hauterive, who had had an identical operation from Dr Burou, was ruled to be female for legal purposes and able to marry because "she possesses external genitals of a feminine type and because her psychological behaviour is without doubt that of a woman".

Continued in Part 3: Aftermath


Is legal aid still this good?  Two QCs and three doctor professors from top universities.

I agree with Dr Burou in not responding.   It was impertinent to go into the details of the operation.

While Lady Corbett as respondent replied that Arthur was unable to function sexually, there is no mention that he, unlike her, was examined by any of the doctor professors.

As Dr Hayhoe, a chromosome expert, examined April’s blood, I do not understand why the court was not given a definitive statement as to whether April has Klinefelter’s Syndrome.

What had the Sexual Offences Act 1967 to do with a sex change?  In the late 1960s transsexuality was still regarded as a type of homosexuality, but it had never been illegal as such.  However decriminalization did mean that Arthur and April could not be charged with homosexuality.

Corbett v Corbett established a legal definition of intersex.  However it was not the same as the medical definition.  In some forms of intersex, chromosomal, gonadal and genital sex at birth are not concordant.

It is odd to say the least, ironic maybe, to read Cazalet and Ormrod's obituary writers, who claim Ormrod as having 'moved with the times', 'more tolerant' etc.   Corbett v Corbett is perhaps the major exception to this, but some of his other rulings imply an old-fashioned sexism.  There is an obvious question about to what extent his attitudes reflect an old-fashioned establishment point of view vs simple homophobia.  None of the source documents that I consulted even raised this question.

The Fishbayn article is odd in a quite different way.  She attempts to rewrite Corbett v. Corbett in terms of Judith's Butler's concept of 'gender trouble', that concordant intersex persons are accepted as women, but transsexuals are trouble makers and are denied their desired gender.  She cites only recent US writers: Butler, Kessler & McKenna, Fausto-Sterling, Dreger, Bornstein, Garber but no UK writers, not even either of Ashley's autobiographies.  There are two other explanations, class and homophobia, but Fishbayn does not even consider them.  She refers to Arthur Corbett as Lord Rowallan although he did not gain that title until his father died in 1977.

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