Transsexuals' 33-year Battle for Legal Rights

Annulled marriage of a former merchant seaman began quest for justice set to end with change in law

[UNITED KINGDOM] - The battle by transsexuals for legal recognition in their adopted sex goes back 33 years, to the celebrated case of April Ashley. The former merchant seaman, who went through one of the earliest sex change operations, married Arthur Corbett, who was well aware of her history.

The marriage was unhappy and Arthur petitioned for a decree of nullity in the high court. The judge, Mr Justice Ormrod, ruled that sex is determined at birth and the marriage was null and void from the outset because both parties were male.

Stephen Whittle, of the transsexuals' campaigning group Press for Change, recalls that he first took part in a demonstration at the British Medical Association in 1974. A legal academic and a female-to-male transsexual, he is a nominee for the 2002 human rights award, to be conferred tonight by the civil rights organisations Liberty and Justice.

Through the 1980s and 90s a succession of British transsexuals took their cases to the European court of human rights in Strasbourg, arguing that the law deprived them of the right to respect for their private and family life. One was Dr Whittle, who sought the right to be named as father on the birth certificates of the four children his partner conceived by artificial insemination from a donor.

Because they could not change their birth certificates, the transsexuals argued, they were deprived of the right to marry. Employers, when they went for a new job, inevitably learned that they had been born in the other sex. They suffered a series of losses at Strasbourg, but each time the majority of judges against them grew smaller. Each time, the judges urged Britain to reconsider its stance in the light of changes in social and medical opinion.

Medical research had discovered that there were observable differences between the brains of lifelong males and those of male-to-female transsexuals. Transsexuality, or gender dysphoria, was recognised as a medical condition, and the British courts forced reluctant health authorities to fund sex-change surgery.

Meanwhile, the European court of justice in Luxembourg ruled that discrimination against transsexuals at work was unlawful. But because there was still no right to change a birth certificate to reflect the new sex, there was no way of concealing the fact of the sex change from a new employer.

In July 2001 the court of appeal rejected an attempt by Elizabeth Bellinger, who started life as a male, to have her 20-year marriage to a man declared valid. One of the three judges ruled in her favour, but the other two reluctantly dismissed her appeal, while admonishing the government for failing to change the law. Her case is due to go to the House of Lords next month.

The decisive blow was struck last July, when two transsexuals succeeded at the human rights court in Strasbourg. Christine Goodwin, a former bus driver, and "I", an unnamed male-to-female transsexual, won a ruling that British law's insistence that sex is established at birth violated their rights to respect for private life and the right to marry under the European convention on human rights. The court accused the government of having effectively done nothing despite its admonitions.

The ruling will at last force the government to change the law to allow transsexuals full legal recognition in their adopted sex, including the right to marry.

The judgment will oblige the government to introduce legislation allowing a new birth certificate to be issued after a sex change. The result should be that those who have sex changes will be treated as if they had been born with the acquired sex - including the right to marry and the age at which they qualify to draw a state pension.