The Bellinger v Bellinger Recognition of Marriage Case 2000

Elizabeth Bellinger, born 1946, was raised as male, and at age 21, under some pressure, was married to a woman. The marriage lasted for four years. After that she undertook eight years of counselling which led to transition.  She had completion surgery in 1981. Later the same year, she went through a ceremony of marriage at a Registry Office with Michael Bellinger, a widower of the same age who was fully aware of the situation. She was described on the marriage certificate as a spinster. In the late 1990s, following the claims of BSTc differentiation in trans women, and the Human Rights Act, 1988 which made rulings of the European Convention on Human Rights authoritive in UK courts, she sought to clarify the legal status of her marriage,

For 30 years since Corbett v Corbett, the criteria for determining sex for purposes of marriage had stood. Trans women were not women for such purpose, but an exception was made for intersex women using the definition of a natural non-congruence of the chromosomes, gonads and genitals.

In 2000 two cases came to court. In the first W. v W., a divorced husband attempted to have the marriage annulled also, but his request was denied when it was established that his wife did meet the Corbett exception.

In November that year, Mrs Bellinger sought a declaration under the Family Law Act, 1986, c. 55, § 43, Part III, Declaration of Status (Eng.), that her marriage had been valid at its inception. This would require that she be recognised as female for the purposes of section 11(c) of the Matrimonial Causes Act 1973 (which incorporated the Nullity of Marriage Act, 1971), which in turn would necessitate giving the expressions 'male' and 'female' in that Act a novel, extended meaning: that a person may be born with one sex but later become, or become regarded as, a person of the opposite sex.

The respondent Mr. Bellinger filed no objecting reply. It was the Attorney General who elected to intervene to argue the case against granting the declaration. Evidence was taken from Professors Louis Gooren and Richard Green and consultant urologist Timothy Terry, and Russell Reid was cited. However the High Court applied the Corbett test and found that Mrs Bellinger was male in that at birth the chromosomes, gonads and genitals had been congruent: ‘the present state of medical knowledge lead inexorably to my dismissing her petition’.

In 2001 at the Appeal Court, Mrs Bellinger’s counsel argued that the terms ‘male’ and ‘female’ had been deliberately left undefined in the Nullity of Marriage Act, 1971. They sought to expand the range of factors in that scientific understanding had advanced since 1971, and referred to the non-congruance of brain structure, particularly the size of the BSTc (stria terminalis) citing Zhou et al, 1995, and argued that therefore she should be understood as covered by the intersex exception as set out in Corbett. Two of the three judges responded that they were intrigued by the evidence but as the evidence would require a dissection at autopsy, evidence with regard to Mrs Bellinger’s brain could not be obtained. Thus the stated advances could not be brought to her aid. They ruled that Mrs Bellinger was not female as the law then stood. The third judge did dissent, and urged the abandonment of purely biological tests. On psychological grounds he would have recognised Mrs Bellinger as a woman under English law. All three judges accepted that "the profoundly unsatisfactory nature of the present position and the plight of transsexuals require careful consideration". However, the two judges said any change in the law must be a matter for Parliament. The court was dismayed to hear that no steps had been taken by the Home Office following the report in April of the previous year of an inter-departmental working group on transsexual people.

An appeal went to The House of Lords. In the meantime the European Court of Human Rights (ECHR) had ruled in Goodwin v United Kingdom and I. v United Kingdom. In both cases involving completed trans women the claim was that UK policies violated their rights to privacy under Article 8 and to marry under article 12 of the European Convention on Human Rights. The ECHR repudiated the Corbett test, arguing that gender dysphoria is a medical disorder and that this obviates any need to determine its aetiology and that the emphasis on chromosomal sex was disproportionate in that in some intersex conditions the gender identity is not congruent with the chromosomes. The minority opinion in the Bellinger appeal was cited with approval.

While it was still left to the UK to establish a workable definition of gender transition and marriage, the ECHR did conclude that the UK’s policies were in violation of articles 8 and 12 of the European Convention on Human Rights.

In December 2002 the UK Government announced that it would bring forth legislation on the matter, and government counsel conceded that UK law was incompatible with the articles 8 and 12.

In April 2003 the House of Lords considered Bellinger v Bellinger and upheld the majority decision of the Court of Appeal, but indicated its incompatibility with the judgements of the ECHR. This was the first such declaration of incompatibility. However they declined to apply section 3 of the Human Rights Act 1988 which states that domestic law must, if possible, be interpreted in a way that makes it compatible with the ECHR. The judges did not accept that the terms ‘male’ and ‘female’ in the Matrimonial Causes Act 1973 could be extended to include the marriages of transsexuals. To read the 1973 Act in such a new way would be a major change to the law and such change is not the duty of the courts. The issue was handed back to Parliament.

In 2004 the UK government enacted the Gender Recognition Act, and then Bellinger would be entitled to apply for a Gender Recognition Certificate. Certainly a step forward, but hardly the confirmation of the legal status of her marriage in 1981.

• J-N Zhou, M A Hofman, L J Gooren & D F Swaab. “A Sex Difference in the Human Brain and its Relation to Transsexuality”. Nature, 1995, 378: 68-70. Reprinted in The International Journal of Transgenderism, 1997, 1,1. Online.
• “W. v W. Case Law”. October 2000. Online.
• “Rights of Transsexual are upheld”. Dublin Evening Herald, 23 May 2001.
• “Transsexual loses appeal over 20-year ‘marriage’ “. The Telegraph, 18 Jul 2001. Online.
•  "Judgments - Bellinger (FC) (Appellant) v. Bellinger" House of Lords, 10 April 2003. www.publications.parliament.uk/pa/ld200203/ldjudgmt/jd030410/bellin-1.htm.
• Clair McNab. "Government FAQ: Bellinger v. Bellinger". Press For Change, January 2004. www.pfc.org.uk/node/326.
• S Cowan.  ‘That Woman is a Woman! The Case of Bellinger v Bellinger and the Mysterious (Dis)appearance of Sex’ Feminist Legal Studies, 12, 2004: 79-92.
• Lisa Fishbayn. " 'Note Quite One Gender or the Other': Marriage Law and the Containment of Gender Trouble in the United Kingdom". Journal of Gender, Social Policy & the Law, 15,3, 2007: 429-432. http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1252&context=jgspl.
• Christopher Hutton.  The Tyranny of Ordinary Meaning:  Corbett v Corbett and the Invention of Legal Sex.  Palgrave Macmillan, 2019: 145-152. 

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There are issues not discussed in the source accounts. Was Mrs Bellinger risking being charged with ‘perjury’ for presenting herself as female, or her status as 'spinster' at her marriage in 1981?

Did the Gender Recognition Board require the Bellingers to divorce before she was awarded her Gender Recognition certificate?

It is just as well that the legal changes were not built on the assumptions about BSTc as proposed by Zhou et al. Twenty-five years later that line of research has not proved productive. 

The European Convention on Human Rights and the European Court of Human Rights are not part of the European Union. They are part of the Council of Europe, a wider organisation. Russia is a member. Only Belarus is not. The current Johnson government equivocates and does not commit to remaining in the Council of Europe. If it were to withdraw, and also repeal the Gender Recognition Act, the legal status of trans persons would be back to what it was in 1971.