Joint Committee On Human Rights Written Evidence

20.Submission from Ashley Bayston, Barrister at Law

  1.  This evidence has been prepared and provided by Mrs Ashley Bayston of 3 Dr Johnson's Buildings in the Temple, London, a barrister in independent practice in the chambers of Richard Vain.

  2.  I have been involved in transsexual people's rights since being called to the Bar in 1996. The first time "on my feet" as a fledgling barrister was before the then newly appointed Charles J in an unreported judicial review application which challenged the authority of Corbett v Corbett [1971] P 83. Although the learned judge dismissed the application as not being a properly reviewable decision, he also rejected the Government's submission that Corbett was inarguably good law. See W v W (Physical Inter sex) [2001] Fam 111.

  3.  From its inception in October 1998 until the House of Lords judgment on 10 April 2003, I was counsel for Mrs Elizabeth Bellinger in her legal action to have her 1981 ceremony of marriage to Michael Bellinger declared valid. See Bellinger v Bellinger [2003] UKHL 21, [2003] All ER 592. Although much of my knowledge and experience in this field is informed by having had the privilege of serving as Mrs. Bellinger's advocate, this submission is being made strictly from my own independent views developed over a the course of a career in working towards correcting the injustices which the Draft Gender Recognition Bill ("DGRB") seeks to redress.

  4.  Mindful that the JCHR will have received a great number of lengthy and learned submissions, this brief one is limited to the provisions regarding marriage and specifically to the judicially recognised incompatibility of present legislation with the European Convention on Human Rights.

  5.  However I note with dismay the DGRB's failure to deal with housing, goods and services. I also strenuously oppose the concept of a Register on the principle that rather than facilitating transfolk's integration into society, it isolates them by creating a vulnerable third gender. This is not only discriminatory, it could lead to stigmatisation and even potential persecution.

  6.  May I highly commend to the Committee the general analyses and responses that have been posted on the websites of the Gender Trust and also the Gender Identity Research and Education Society. I have had the benefit of reading GIRES' submissions relating to marriage and could not have put their arguments on behalf of Mrs. Bellinger and others more compellingly. Press for Change is also to be commended for its effective lobbying and input into the DGRB, although it must be noted that it is an oligarchic organisation which does not necessarily represent the majority of transfolk. There is, in fact, no single voice of the trans community as it tends to consist of individuals who seek a private life indistinguishable from others'.

Interim v Full Gender Recognition

  7.  The concept that a person cannot be fully recognised under the law until that person's marriage is over and/or spouse is dead not only offends logic, but is a flagrant breach of Articles 8 and 12 of the ECHR and merely reinforces and perpetuates one of the fundamental problems the DGRB is intended to correct.

Declaration of Incompatibility

  8.  If I speak unwittingly on behalf of any particular group, it is their Lordships who dismissed Mrs. Bellinger's appeal to the House of Lords in April but who made a Declaration of Incompatibility against Section 11(c) of the Matrimonial Causes Act 1973 with Articles 8 and 12 of the European Convention on Human Rights. This Declaration seems to have been overlooked in the preparation of the DGRB.

  9.  Section 11(c) renders void ab initio any marriage in which the parties are not respectively male and female. There is no statutory definition of "male" and "female" and the Corbett test of biological congruence has, until last year's decision in Goodwin v UK (2002) 35 EHRR 18 provided the only legal definition of a person's sex, Section 11 of the 1973 Act was originally expressed in the Nullity of Marriage Act 1971, a result of the Corbett decision. Parliamentary debates on the 1971 Act show that the words "male" and "female" were deliberately left unclear, to be construed by later courts applying contemporary medical and social definitions. See enclosed Hansard excerpt.

  10.  At each stage in Mrs Bellinger's case, the courts declined to exercise their inherent jurisdiction of clarifying ambiguous statutory language, stating that the definitions necessary for s11(c) were a matter for Parliament and not the judiciary. This task has now apparently been ignored in the DGRB.

  11.  The issues in Bellinger were narrow and closely related. The petition sought simply a declaration of validity of the Bellinger marriage. The only questions raised were:

    (a)  the relevance of the Corbett test in 21st century, multi cultural Britain;

    (b)  the construction of the words "male" and "female" in s11(c) of the 1973 Act;

    (c)  the compatibility of s11(c) with the European Convention on Human Rights.

  12.  Whilst their Lordships affirmed the views of the courts below that b) was a matter, for Parliament and acknowledged the ECtHR's view in Goodwin (which preferred Thorpe LJ's dissent in Bellinger to the majority opinions) that the Corbett reasoning was no longer relevant, they unanimously declared s11(c) incompatible with Articles 8 and 12.

  13.  Schedule 3 of the draft Bill relates to marriage and amends existing legislation, namely the Marriage Act 1949 and section 12 of the Matrimonial Causes Act 1973.

  14.  Section 11 of the 1973 Act is not mentioned anywhere in the draft Bill and remains intact. The specific mischief identified by the House of Lords in the April Declaration of Incompatibility has not been addressed.

  15.  With section 11 untouched, there remains no statutory definition of gender in this jurisdiction.

  16.  The House of Lords has clearly indicated that such a definition must be legislated and the draft Bill is the only opportunity in which this can be achieved. So not to do would be as grievous a breach as that their Lordships' Declaration of Incompatibility seeks to amend.

Respectful Submissions

  17.  In considering definitions of "male" and "female" this scrutinising committee and/or the relevant draftspeople could not be better informed than by the Australian decisions in Re Kevin (validity of marriage of transsexual) [2001] FamCA 1074 where Chisholm J. and later the Federal Family Court [21 February 2003] robustly gave the words "man" and "woman" their ordinary, everyday, contemporary meanings.

  18.  That the marriages of the mere score or so of couples in the UK in the position of Mr. and Mrs. Bellinger (one party is a transperson who would have been eligible for a Gender Recognition Certificate had it been available at the time of the marriage) be made valid by inclusion of a "but for" clause. An example of this elegant device is found in section 8(2) of the DGRB dealing with paternity in a very limited circumstance "but for not having been a man at the material time".

  19.  If I can be of any further assistance to the JCHR I would be only too happy to oblige.

8 September 2003

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