Congress Paper Abstract

Corbett v Corbett: is it still good law?

Yatoni Cole-Wilson, Barrister, Lincoln’s Inn 

Email: ycw@lbnipc.com

The abstract of this paper was prepared some months before the judgement of the European Court of Human Rights in Sheffield and Another v The United Kingdom when the landscape looked very different. The decision of the European Court of Justice in P v S and Another which was applied by the Employment Appeals Tribunal in Reed v Chessington World of Adventures and Marshall v The DPP, supplemented by decisions from other common law jurisdictions distinguishing or refusing to follow Corbett v Corbett, crowned with some encouraging data from Ward I J in ST v J, promised real change. As the European Convention on Human Rights is about to be implemented into English law it seemed not so much a question of whether Corbett would be left behind but when. Although the ECHR’s judgement in Sheffield was undoubtedly disappointing the long term effect may not be nearly as bad as it seems. It will no doubt hinder the advance of transsexual persons’ rights throughout Europe for a time but it need not stymie them. An analysis of Corbett shows that it was decided primarily on the medical evidence before the trial judge, which probably represented the consensus of the time. The ECHR recognised in Sheffield that there is no longer a consensus on the nature of sex and gender in view of the valuable research by Professor Louis Gooren and others, but the revised view is not yet perceived to be an orthodoxy. If, and any luck when it does so, the ECHR as well as the courts of England and Wales will be obliged to reopen the issue.

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