The Tyranny of Ordinary Meaning

Corbett v Corbett and the Invention of Legal Sex

Christopher Hutton

• Publisher: Palgrave Macmillan
• Year: 2019
• Print ISBN: 9783030202705
• eBook ISBN: 9783030202712
• Topic: Languages & Linguistics
• Subtopic: Linguistics
• Index: Languages & Linguistics

This book offers an in-depth analysis of the case of Corbett v Corbett, a landmark in terms of law's engagement with sexual identity, marriage, and transgender rights. The judgement was handed down in 1970, but the decision has shaped decades of debate about the law's control and recognition of non-normative gender identities. The decision in this case – that the marriage between the Hon. Arthur Corbett and April Ashley was void on the grounds that April Ashley had been born male – has been profoundly influential across the common law world, and came as a dramatic and intolerant intervention in developing discussions about the relationships between medicine, law, questions of sex versus gender, and personal identity. The case raises fundamental questions concerning law in its historical and intellectual context, in particular relating to the centrality of ordinary language for legal interpretation, and this book will be of interest to students and scholars of language and law, legal history, gender and sexuality.

© The Author(s) 2019

Christopher HuttonThe Tyranny of Ordinary Meaninghttps://doi.org/10.1007/978-3-030-20271-2_1

Begin Abstract

1. Introduction

Christopher Hutton¹

(1)

School of English, The University of Hong Kong, Hong Kong, Hong Kong

Christopher Hutton

Email: [email protected]

End Abstract

This book offers an analysis of Corbett v Corbett, a case decided in the High Court by Roger Ormrod, in 1970.¹ In Corbett, Ormrod J determined that the marriage between the Hon Arthur Corbett and April Ashley was void. The primary ground for this determination was that April Ashley had been born a boy and correctly registered as male, with the name George Jamieson. This decision of the English High Court was subsequently applied widely across the common law world: ‘Over the years, courts in South Africa, Canada, Hong Kong, New Zealand, Ireland, Singapore, and the United States have followed the reasoning of Corbett’ (Tobin 2007: 404). Centre stage in Corbett was the successful Vogue model and aspiring film actress, April Ashley. Born on April 29, 1935, she had made a complex journey from an unhappy childhood in the ‘dockland slum’ of Pitt Street, Liverpool (Ashley 1982: 2), via a stint in the merchant navy, a series of suicide attempts (the last of which led to her admission to the Walton psychiatric hospital in Liverpool), the cabaret Le Carrousel de Paris, to a modeling career in England. Ashley was ‘outed’ on November 19, 1961 by the Sunday People as, in the medical terminology of the time, transsexual.² Ashley had undergone a ‘sex change operation’, performed by the pioneering plastic surgeon Dr Georges Burou in Casablanca, Morocco, on May 12, 1960.³ The headline read: ‘“Her” secret is out: the extraordinary case of top model April Ashley.’ This revelation brought Ashley’s modeling career to an abrupt end. Her name was removed from the credits of 1962 Hollywood movie, The Road to Hong Kong, starring Bing Crosby and Bob Hope, in which she had had a small part. Beginning on May 13, 1962, the News of the World’s legendary journalist Noyes Thomas published a series of interviews with Ashley, under the headline: ‘Goodbye M’sieu, hello Mamselle the doctor said: My strange life by April Ashley’. Ashley described the newspaper story as follows in her memoir, My Odyssey, co-written with Duncan Fallowell (1982: 136–137):

It was the classic, six-part sensationalisation of a short ragged life. My aristocratic associations gave it piquancy. […] I was pilloried for having the nerve to make friendships among the upper classes. The series, via sex and drugs and violence, but no names, ended with a reference to my liaison with Arthur.

April Ashley and the Hon. Arthur Corbett, the heir to a Scottish title, married in Gibraltar on September 10, 1963. Corbett had divorced his wife, with whom he had four children, but the relationship with Ashley broke down not long after. The Corbett litigation arose out of Ashley’s request for the deeds to Villa Antoinette in Marbella in southern Spain. A subsequent claim for maintenance was issued on February 16, 1966, under section 22 of the Matrimonial Causes Act 1965, but the proceedings were unresolved (Corbett, at 96). In May 1967, Corbett finally responded with a legal challenge to the validity of the marriage, in the form of a petition for nullity, on the grounds that Ashley ‘was a person of the male sex’ or due to ‘either incapacity or wilful refusal to consummate’. Ashley in response ‘denied being of the male sex, denied any incapacity to consummate or any wilful refusal to consummate the marriage’ (at 85). It was also argued at trial that Corbett was estopped from denying the marriage, since he had entered into it in full possession of the facts (at 85, 91). Indeed Corbett’s attraction to Ashley was in part an identification with her achieved feminine persona, as Corbett was, in Ormrod’s words, sexually ‘abnormal’ (at 91) and had a history of transvestism: ‘This [Ashley’s appearance] was so much more than I could ever hope to be. The reality was far greater than my fantasy’ (cited by Ormrod, at 91). In the run up to the litigation Ashley was granted ‘alimony pending suit’ of £6 per week. Ashley was not given anonymity in the resulting legal proceedings, which attracted huge media interest. There seems to have been no discussion in the case itself of the conflict between medical confidentiality and the legal fact-finding process (see [BMJ] 1967: 493; [BMJ] 1970: 442). As Mussawir has commented on such proceedings (2011: 51):

Whether or not measures are used to protect [participants’ identities] there remains something legally imprudent and ethically uncomfortable about the situation of having one’s sex or gender, the particular ways of thinking about one’s own sex, the insecurities regarding the sexed characteristics of one’s body, the practices of finding one’s way around the laws of gender, etc. laid bare and evaluated before a public tribunal. In no other situation would this be necessary or appropriate in a legal form.

The case was heard in November and December of 1969, with the judgment delivered on February 2, 1970. Ashley was represented by the celebrated Irish advocate James Comyn QC. Corbett had retained the family law specialist Joseph Jackson QC (Gilmore 2011: 51–52). Ormrod’s judgment included extensive discussion of the nature of sexual identity, and of April Ashley’s medical history, as well as an analysis of the medical evidence. Though the experts were divided on key points, the judge ruled that April Ashley was not a woman for the purpose of the law of marriage. He dismissed Ashley’s counter-claim. In an allied decision on the question of costs, Ormrod cancelled the weekly £6 maintenance.⁴ The decision was big news. The New York Times reported: ‘Judge in Britain rules surgery cannot alter a person’s sex’ ([NYT] 1970: 10). History, however, was on April Ashley’s side. In 2004 the UK passed the Gender Recognition Act, and Ashley’s Gender Recognition Certificate was issued on August 1, 2005 (Gilmore 2011: 72). In 2012 she was awarded an MBE for her services to Transgender Equality. In 2013 her life was the subject of an exhibition, ‘April Ashley—Portrait of a Lady’, as a collaborative project between Liverpool Museum and Homotopia, ‘the international festival of queer arts and culture’.⁵ Roger Ormrod was promoted to Lord Justice of Appeal in 1974, dying in 1992. Corbett became 3rd Baron Rowallan in 1977, and died in 1993.

Although the personal trajectories that led to the Corbett case were highly contingent (for example, Corbett could simply have agreed to Ashley’s requests), Ormrod’s judgment needs to be understood against a background of rapid social, medical and legal change in post-war Britain. There was considerable uncertainty about the role of law in relation to medicine: ‘shifts in the practice of medicine have been realized while the ethical norms of medicine remained unexamined’ (Schurr 1972: 192). While law ‘traditionally follows custom’, in the case of medicine ‘today custom is created with an unwonted rapidity that outstrips the capacity of law to keep pace’ (Pellegrino 1971: 328). In the case of sexual identity, medical and legal opinion was largely inchoate, though there was a growing specialist awareness of these issues internationally. On a first reading, Ormrod’s reasoning appeared to bring clarity to a complex area of law. The criteria for determining legal sex for marriage were: chromosomal factors; gonadal factors (i.e. presence or absence of testes or ovaries); genital factors (including internal sex organs). If these factors were aligned, then psychological factors, i.e. a person’s own gender identity, were irrelevant. The so-called Corbett criteria provided subsequent judges with a short-cut to the determination of legal sex. Ormrod emphasized the distinction between a medical opinion and a legal one, but never explained fully how this gap was to be bridged.

The search for a legal understanding of sexual identity has taken place most fundamentally in relation to the law of marriage: marriage has been the ‘limit’ to ‘the effective incorporation of transgender people within the existing gender order’ (Sharpe 2002: 89). While it has been ‘subject to sustained and almost universal criticism within academic and law reform circles’, judicial thinking has taken Corbett as its starting-point (Sharpe 2006: 622). The decision ‘more than any other, inaugurated transgender jurisprudence in the common law world’ (Sharpe 2006: 622). The case remains an important reference point for common law jurisdictions, in particular those that have not enacted human rights frameworks in the area of sexual identity and sexual orientation (see discussion in Tso 2015; Odetayo 2016). The law relating to sexual identity is characterized by a ‘transnational judicial conversation’ (Gilmore 2003: 296). This has been the case both in the application of Corbett, as well as its subsequent unraveling (McCrudden 2...

Table of contents

• Cover
• Front Matter
• 1. Introduction
• 2. Intellectual Background
• 3. Legal Sex and Marriage
• 4. The Decision in Corbett v Corbett
• 5. Ordinary Meaning Beyond the Law/Fact Distinction
• 6. Conclusion
• Back Matter