PRESS RELEASE: "Joella Holliday can marry, but can't stay married"

Leaders of Press for Change, the UK’s transsexual rights campaign, today welcomed the decision by the Office of National Statistics to alter the birth certificate of ten-year-old Joella Holliday, re-registering her as female … but warned of problems ahead.

PFC vice-president Christine Burns said today:

“We are delighted that Joella will no longer have her life blighted by a document which claims that she is someone else, and congratulate her parents in their persistence in standing up for their daughter. No one should be forced to carry a legal identity which doesn’t match the reality of their lives, and it’s a credit to the registrars in the Office of National Statistics that they have finally faced reality in this case.”

Joella’s case raises new questions for the status of transsexual and intersexed people in the UK, and Joella Holliday’s situation may not be as neatly resolved as media reports have suggested.

Law lecturer and PFC vice-president Stephen Whittle said:

“Sadly, newspaper reports that Joella will be allowed to marry are raising her hopes unfairly, and her new birth certificate will not remove her from legal limbo. In the 1970 case of April Ashley (Corbett v Corbett), Lord Justice Ormerod established a ’test’ for sex determination in marriage cases. This which means that if Joella were to get divorced and her husband wanted to avoid his obligations, her marriage could be declared void”.

“Since the Ormerod judgement, the situation has been very clear: a valid marriage may be contracted only between a man and a woman, and sex is determined by chromosomes. Successive governments, including the current administration, have repeatedly made it clear that this remains the legal position. Since Joella has male chromosomes she will not able to legally marry a man — though she may be able to legally marry another woman.”

“The ONS’s decision means that chromosomal tests are apparently no longer to be regarded as definitive in determinining sex as recorded on the birth certificate, which is welcome news for transsexual people. On the basis of this decision, we will encourage the UK’s 5000 transsexual people to immediately reapply for corrected birth certificates. But until the law is properly overhauled, administrative tinkering will not rescue Joella from the legal nightmare she shares with thousands of other transsexual and intersexed citizens of the UK.”

Stressing the parallels betwen Joella’s case and that of transsexual women, PFC Vice-President Christine Burns added:

“In law, there is no difference between Joella and a transsexual woman … and in practice the only actual difference is that gender reassignment surgery was inflicted upon her by others, whereas transsexual people are in the position of trying to get surgery. She has XY chromosomes … just like transsexual women … and sufficient to invalidate her marriage under the ’test’ devised by Justice Ormerod”.

“She will have an artificial vagina … just like a transsexual woman … a fact dismissed as an irrelevance by Justice Ormerod.”

“She has no internal reproductive organs that are female … just like a transsexual woman … and sufficient to annul her marriage under either the Ormerod test or the Matrimonial Causes Act”.

“In short, had Joella possessed anything resembling a penis and been able to keep it, there would be no doubt whatsoever as to the fact that on all three physical counts she was a boy … just as transsexual women are characterised.”

Stressing the inconsistency of medical and legal approaches to transsexual and intersexed people, Christine Burns contined:

“What is truly bizarre, and raises serious ethical questions, is the question of what would then have happened if she had subsequently told people that she had the feminine gender identity which she is reported to have … and which I don’t doubt that she does have. She would then have been labelled a transsexual (and ’all that rubbish’, to quote her specialist) … and been denied the treatment which it was OK to inflict upon her!”

“The ONS would also have refused to alter her birth certificate.”

“What we have, therefore, is not a difference of facts … but a difference in the interpretation put on the facts. A specialist is entitled to decide a child’s gender, with no real way of telling … and no knowledge of the outcome which his decision is going to have … and that decision can then be given legal effect”.
“Conversely, however, a young person or adult with the ability to say whether they are psychologically male or female is denied that same decision … and no official credence is given to it”.

“The ONS has tied itself in knots now … having abandoned the three physical criteria which it has insisted, for thirty years, to be the reasons for not allowing a transsexual person to be recognised officially as the person they are. We wait with interest for the government to now sort out the mess which they’ve created … and I wait with particular interest to see how they respond to my application for a new birth certificate.”

Background information:

The UK remains one of only four out of 39 countries in the Council of Europe which fails to provide full legal recognition in their new gender for transsexual people: the others are Albania, Andorra, and Ireland. This failure causes countless problems for transsexual people in their everyday lives.

Despite being issued with corrected passports and driving licenses reflecting their true gender, transsexual people remain legally in the gender assigned to them at birth. Apart from being unable to conduct a valid marriage, their tax and social security records retain the orginal gender, and insurance policies may be invalidated if they do not declare their legal status. If convicted of a crime, they risk being sent to a prison for the oppoosite sex, and any situation requiring the production of a birth certificate guarantees a breach of personal privacy.

The government inists that a birth certificate is not an identity document, yet civil service and public sector employers insist that it accompanies job applications.

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