Bellinger v Bellinger

Facts

The applicant was born male and, after gender reassignment surgery, lived as a woman. In 1981 she went through a ceremony of marriage with a man who knew her history. She sought a declaration that the marriage was valid under the Family Law Act 1986.

History

At first instance the judge refused the declaration, and the Court of Appeal, by a majority, dismissed her appeal. She appealed to the House of Lords.

Issue

Whether the marriage was valid under section 11(c) of the Matrimonial Causes Act 1973, which required that the parties be respectively male and female, and whether the Act could be read compatibly with Articles 8 and 12 of the European Convention on Human Rights in light of the ruling of the European Court of Human Rights in Goodwin v United Kingdom (2002).

Held

Appeal dismissed. The marriage was not valid under the statute, but the House made a declaration under section 4 of the Human Rights Act 1998 that section 11(c) was incompatible with Articles 8 and 12.

Ratio

• In section 11(c) of the 1973 Act the words male and female refer to the biological sex of a person at birth, following the approach in Corbett v Corbett [1971] P 83, so the marriage of the applicant was not valid.
• It was not possible to read the Act compatibly under section 3 of the Human Rights Act 1998, because to treat a post-operative transsexual as a person of the acquired sex for the purpose of marriage would involve the courts in a major policy change affecting many areas of law.
• Since the statute, as interpreted, could not be reconciled with the rights under Articles 8 and 12 as understood in Goodwin v United Kingdom, a declaration of incompatibility was the appropriate course so that Parliament could decide how to respond.

The judgments

Key reasoning

• The legal meaning of male and female had been settled for the purposes of marriage by earlier authority, and Parliament had since legislated in reliance on that meaning.
• Reinterpretation under section 3 is limited to what is compatible with the fundamental features of the statute, and the question of when a change of gender is recognised involves details of criteria and consequences that the court is not equipped to decide.
• After Goodwin v United Kingdom, the failure of English law to recognise the acquired gender for marriage was a breach of the Convention, which called for a declaration so that the government and Parliament could consider remedial legislation.

Where it fits in the module

On the topic of sections 4 and 10 of the Human Rights Act, the case shows the court declining to interpret a statute compatibly and instead using the declaration to return the issue to Parliament. It raises the question of the proper boundary between interpretation and legislation, and the constitutional division of roles between court and legislature.

Criticisms

• The line between interpretation under section 3 and legislation is unclear: the court treated the issue as one of policy, though the Convention aims at making rights effective, so a different reading of the same statute might have been adopted.
• A declaration of incompatibility offers no remedy to the applicant, who remained unmarried in the eyes of the law despite a clear breach of her Convention rights, which weakens the protection offered by the Act.
• The case treats gender recognition as a question for Parliament, but it also continued to rely on a biological definition from an earlier case, which sits uneasily with the commitment of the Convention to respect personal identity.