The International Foundation for Gender Education

Originally appeared in Transgender Tapestry #097, Spring 2002.

by Andrew N. Sharpe



This article considers and situates within the context of English transgender jurisprudence a recent decision of the Family Division of the High Court, W. v. W. The decision, which recognized the sex claims of an intersex person for marriage purposes, is significant in that it departs from the legal test for determining sex enunciated by Justice Ormrod in Corbett v. Corbett. However, while the decision might be viewed as representing something of a thaw in English judicial approach toward transgendered people, it will become clear that the judgment of Justice Charles tends to bolster the underlying legal reasoning in Corbett?a decision which has for over 30 years now stood between transgendered people and legal reform. Of course, W. v. W. is not the first case to bolster Corbett. There is an entire line of English cases decided in its wake which do that, including, most recently, Bellinger v. Bellinger and another case. Nevertheless, W. v. W. is of particular significance because it consolidates Corbett even and precisely at a moment of reform, and serves to redraw our attention to what is really at stake in transgender cases in the English context, especially those involving issues of marriage.
The facts of the case were that the applicant, Mr. W., sought a decree of nullity in respect to his marriage of three years duration to the respondent, Mrs. W., an intersex person who had undergone sex reassignment surgery, on the ground that at the date of the marriage he and the respondent were not respectively male and female. In deciding the case, Justice Charles noted that the facts and the body of Mrs. W. exceeded the legal test enunicated by Justice Ormrod in Corbett v. Corbett. In Corbett?a case concerning the validity of a marriage between a biological male petitioner (Arthur Corbett) and April Ashley, a male-to-female transgendered respondent?Ormrod held ?sex is determined at birth? and, crucially for present purposes, by a congruence of chromosomal, gonadal and genital factors. Accordingly, April Ashley, whose chromosomes, gonads, and genitalia were congruent at birth, was determined to be a male person.



By way of contrast, Mrs. W.?s chromosomes, gonads, and genitalia lacked ?congruence? in terms of a binary understanding of sex. It is precisely this fact which distinguishes, and as we shall see, links, W. v. W. to Corbett.



In order to understand fully the reasoning of the court, it is necessary to specify precisely the nature of Mrs. W.?s body. According to the medical evidence, which Justice Charles accepted, she had XY (male) chromosomes. In relation to the other two factors in Ormrod triumvirate, it proved ?extremely difficult to be conclusive,? given a lack of medical records and the fact of subsequent sex reassignment surgery. Nevertheless, on the basis of the medical evidence, it was concluded that Mrs. W.?s gonadal sex was likely to have been male and her genitalia ambiguous at birth. In other words, it was the genital factor that placed the facts of W. v. W. and the body of Mrs. W. beyond Ormrod test.



Indeed, considerable attention was paid to Mrs. W.?s genitalia in the judgment of Justice Charles. Thus, we learn her external genitalia prior to surgery were ?extremely small,? her ?penis? was ?definitely abnormal,? and she had ?no vaginal opening.? Indeed, in giving evidence as to the pre-surgical state of Mrs. W.?s genitalia, Dr. Conway expressed the view that it was ?a close call? as to whether the flap of skin that existed should be described as ?a micropenis or a mini clitoris.? He concluded that if he had to classify Mrs. W.?s genitalia as either male or female, he would locate them on the male side. The medical evidence also indicated ?some spontaneous female breast development? and tended toward a diagnosis of partial androgen insensitivity.



It?s clear from the judgment that Ormrod?s test couldn?t resolve the question of Mrs. W.?s sex at the moment of birth. However, in formulating his triumvirate test, Ormrod had alluded to the possibility of ?incongruence.? In a move that evinces a concern to limit departure from Corbett, Charles turned to the obiter, as well as subsequent extra-judicial statements of Ormrod. In his judgment, Ormrod expressed the view that:



[t]he real difficulties, of course, will occur if these criteria [gonadal, chromosomal and genital] are not congruent. This question does not arise in the present case and I must not anticipate, but it would seem to follow from what I have said that the greater weight would probably be given to the genital criteria than to the other two.



Later, in an address to the Medico-Legal Society, Ormrod elaborated:



I was fortunate enough to find myself faced with a transsexual ... the difficulty would be acute in the cases of testicular feminization and testicular failure. In these cases, the genital sex is unalterably female or approaching female in character, yet the gonads and the chromosomes are male ... If the decision ever had to be made in a matrimonial situation, I think that the genital sex would probably be decisive.



Each of these passages and the interpretation placed on them by Charles is significant. First, it seems clear from Ormrod?s reasoning that any warrant for characterizing as female a person whose chromosomes and gonads are male is dependent on the presence of genitalia that are ?unalterably female or approaching female in character.? The importance of these words seems to be underscored by Ormrod distinction between an ?abnormal? vagina and its absence at birth. Yet it is far from clear that Mrs. W.?s genitalia, the pre-surgical state of which was traced to partial androgen insensitivity, met this test. Rather than requiring medical assessment of genitalia as female, Charles preferred to reason from the ?fact? of ambiguity, expressing the view that ?to determine the sex of [Mrs. W.] for the purpose of marriage by reference to the fact that [her] ambiguous genital sex prior to the operation fell on the male side of the line? would be ?an incorrect application of [Ormrod?s ] test?. In other words, the ambiguity of genitalia on this account trumps the fact that the medical evidence located Mrs. W.?s genitalia on the male side.



In privileging genitalia over other factors in the event of incongruence, W. v. W. represents something of a departure from the analysis undertaken by Ormrod. In effect, the decision appears to be authority for the proposition that law will endorse the fact of sex reassignment surgery in determining sex where genitalia are ambiguous at birth. In this regard, gonadal and chromosomal factors become superfluous. The decision, as it affects intersex people, and to the extent that it eschews fidelity to Corbett, is to be welcomed. However, the legal reasoning adopted by Charles in W. v. W. effectively instantiates an intersex/transgender dyad whereby transgendered persons are located beyond the limits of reform. This occurs through de-emphasis of hormones?a factor which potentially provides a bridge between intersex and transgender?and most importantly as a result of a concern over ?natural? heterosexual intercourse in the marriage context.



The references to testicular feminization and testicular failure by Ormrod and the diagnosis of Mrs. W. as being partially androgen insensitive are of interest because they direct our attention to hormonal factors. The fact that Ormrod envisaged the resexing of bodies in cases of testicular feminization and testicular failure and that Charles resexed the body of a partially androgen-insensitive person in W. v. W., might be viewed as providing a link between these cases and transgender law reform. Indeed, in S-T (formerly J) v J, Justice Ward, while refusing to recognise the sex claims of a pre-operative female-to-male transgendered person, placed particular emphasis on ?new insight into the etiology of transsexualism? in concluding ?Corbett v Corbett would bear re-examination at some appropriate time.? In particular, Ward placed weight on contemporary scientific studies conducted postmortem on male-to-female transgendered bodies that contend genetically male transgendered persons possess a female brain structure. Such studies support the hypothesis that gender identity develops as a result of an interaction of the developing brain and sex hormones. Such a view serves to problematize Ormrod?s analysis, predicated as it is on the reduction of sex to a triumvirate of chromosomes, gonads and genitalia and the rejection of the view that transgenderism might have an organic basis. Thus, hormonal factors may help to explain gender identity and the desire for sex reassignment surgery in the case of both intersex and transgendered people. That is, an emphasis on hormones perhaps serves to undermine the clarity of any distinction between intersex and transgender. On this account, any distinction becomes an effect of the degree, nature, manifestation, and temporality of the influence of sex hormones.



However, it is precisely at the moment of recognizing this potential continuity?one which might strengthen the prospects for transgender law reform?and its deemphasis in W. v. W. that it becomes clear the decisions in W. v. W. and Corbett as to ?legal sex? have little or nothing to do with the development of the human body and its scientific verification. On the contrary, the concern over (bio)logic evident in these decisions proves to be a rhetorical device serving to mask what is really at stake in these marriage cases. The fact that Ormrod privileges the genital factor in determining sex in the event of incongruence and that Charles builds his judgment around that moment is to be accounted for by reference to the fact that both cases concerned issues of marriage. The crux of the matter is captured by Ormrod:



Sex is clearly an essential determinant of the relationship called marriage, because it is and always has been recognised as the union of man and woman. It is the institution on which the family is built, and in which the capacity for natural heterosexual intercourse is an essential element. It has, of course, many other characteristics, of which companionship and mutual support is an important one, but the characteristics which distinguish it from all other relationships can only be met by two persons of opposite sex.... Having regard to the essentially heterosexual character of the relationship which is called marriage, the criteria must, in my judgment, be biological, for even the most extreme degree of transsexualism in a male ... cannot reproduce a person who is naturally capable of performing the essential role of a woman in marriage.



It is a concern over the ?naturalness? of heterosexual capacity that lies at the heart of this passage. In short, Ormrod?s and Charles?, who followed Ormrod, underlying reasoning seeks to ensure that persons to be characterized as female have genitalia at birth that are in some important sense opposite and therefore ?complementary? to the penis. It is this concern that led to considerable scrutiny and speculation about the genital region of April Ashley?s and Mrs. W.?s bodies at birth. For Ormrod, the ?naturalness? of heterosexual intercourse with a man seems to require at the very least genitalia that are ?unalterably female or approaching female in character.? For Charles, the mere ?fact? of genital ambiguity at birth, despite the absence of a vagina, appears sufficient. While the two judgments differ by degree, they share a concern to distinguish the ?natural? from the ?unnatural? and to insulate the institution of marriage from the realm of the ?unnatural.? It is especially significant that in both judgments thinking about ?natural? heterosexual intercourse leads to the invocation of an intersex/trangender dyad. It?s curious why this distinction is insisted upon. After all, the heterosexual liaison that Ormrod and Charles imagine is only possible on the facts of Corbett and W. v. W. after sex reassignment surgery. The difference appears to lie in the relationship between sex reassignment surgery and nature as it is constructed in the two decisions. Thus, the willingness to characterise Mrs. W.?s post-operative genitalia as ?natural? arises out of viewing her surgery in terms of a process of naturalization, to be contrasted with the process of denaturalisation that culminated in the construction of April Ashley?s vagina. This move is possible only through viewing intersex bodies as nature?s ?mistake.?



In this regard, recognition of the sex claims of Mrs. W., in addition to being a setback for transgender law reform, proves highly problematic for an intersex politics.



Conclusion



While representing a step forward for intersex persons, the decision in W. v. W. renders clear the nature of judicial opposition to transgender law reform in the UK context. While formulating a new test for persons who lack chromosomal, gonadal, and genital congruence, Charles enshrines birth as the moment for determining legal sex. The effect of this is to render irrelevant subsequent gonadal (removal), genital (reconstruction), hormonal, and/or psychological change, thereby locating transgendered people beyond the limit of reform. Moreover, given the irrelevance of gonads and chromosomes in the legal determination of Mrs. W.?s sex, the insistence on the birth moment as critical reveals a concern over the relationship between nature and genitalia. It is in the final analysis ?unnatural? genitalia that undermine sex claims, especially those regarding marriage?which, of course, provides the context for both W. v. W. and Corbett. It is the characterization of the genitalia of post-operative transgendered persons as ?unnatural? that underscores Charles? judgment and continues to be the most significant barrier to transgender law reform in the English judicial context.





Andrew N. Sharpe, LLB, LLM, Barrister, is a senior lecturer in Law at Macquarie University in Sydney, Australia. Andrew has been writing in the field of transgender law for over six years, and has been involved in transgender law reform. His new book is Transgender Jurisprudence: Dysphoric Bodies of Law (Cavendish Publishing, 2001).