Marriage fight goes on for sex change wife

Clare Dyer, legal correspondent
Wednesday July 18, 2001
The Guardian

A battle by a transsexual to have her 20-year marriage to a man recognised as valid is almost certain to go to the House of Lords after defeat yesterday in the court of appeal.

Two judges ruled that Elizabeth Bellinger would have to wait for a change in the law, but the third, Lord Justice Thorpe, said judges could recognise changes in society and medical knowledge and declare marriages such as hers valid.

Though they ruled against Mrs Bellinger, Dame Elizabeth Butler-Sloss and Lord Justice Robert Walker said they were aware of the plight of transsexuals and admonished the government for failing to reform the law. Their criticism and Lord Justice Thorpe’s judgment in her favour are likely to persuade the law lords to hear her case. They could then change the law without the need for legislation.

Mrs Bellinger, 54, met her husband, Michael, a widower, in 1980 while she was undergoing her sex change. They married in a register office and Mrs Bellinger brought up her husband’s daughter.

Last year a high court judge, Mr Justice Johnson, ruled that her marriage was void because of a 1970 ruling. The judge in that case, Mr Justice Ormrod, held that marriage was a union between a man and a woman, and that sex was fixed at birth.

Lord Justice Thorpe said medical and social developments meant that judgment, which was correct in 1970, was “wrong in 2001”. Psychological sex, which developed in later years, was now recognised as an important factor, and research had found physical differences on postmortem between male brains and those of male-to-female transsexuals.

The UK is one of four countries in the Council of Europe - the others are Ireland, Albania and Andorra - which do not recognise sex changes as legally valid. An interdepartmental working party pro duced a report in April 2000 canvassing options for reform and recommending public consultation.

Dame Elizabeth and Lord Justice Walker said they were “dismayed” that “no steps whatsoever” had been taken or were apparently intended to carry the matter forward.

Mrs Bellinger said she was grateful that one of the judges “recognised her plight”, but she was disappointed that there had been an opportunity to “correct a great injustice for a lot of people and that hasn’t been done”.

She added: “I feel very hurt but at the same time we are not stopping. This goes on. We are talking about a 20-year marriage that could be non-existent if we just leave this. I am left in limbo and so are lots of other people.”

Copyright © Guardian Newspapers Limited 2001