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: âOver the years, courts in South Africa, Canada, Hong Kong, New Zealand, Ireland, Singapore, and the United States have followed the reasoning of Corbettâ (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 âdockland slumâ 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 âoutedâ on November 19, 1961 by the Sunday People as, in the medical terminology of the time, transsexual.2 Ashley had undergone a âsex change operationâ, performed by the pioneering plastic surgeon Dr Georges Burou in Casablanca, Morocco, on May 12, 1960.3 The headline read: ââHerâ secret is out: the extraordinary case of top model April Ashley.â This revelation brought Ashleyâs 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 Worldâs legendary journalist Noyes Thomas published a series of interviews with Ashley, under the headline: âGoodbye Mâsieu, hello Mamselle the doctor said: My strange life by April Ashleyâ. Ashley described the newspaper story as follows in her memoir, My Odyssey, co-written with Duncan Fallowell (1982: 136â137):
It was the classic, six-part sensationalisation of a short ragged life. My aristocratic associations gave it piquancy. [âŠ] 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 Ashleyâs 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 âwas a person of the male sexâ or due to âeither incapacity or wilful refusal to consummateâ. Ashley in response âdenied being of the male sex, denied any incapacity to consummate or any wilful refusal to consummate the marriageâ (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 Corbettâs attraction to Ashley was in part an identification with her achieved feminine persona, as Corbett was, in Ormrodâs words, sexually âabnormalâ (at 91) and had a history of transvestism: âThis [Ashleyâs appearance] was so much more than I could ever hope to be. The reality was far greater than my fantasyâ (cited by Ormrod, at 91). In the run up to the litigation Ashley was granted âalimony pending suitâ of ÂŁ6 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 [participantsâ identities] there remains something legally imprudent and ethically uncomfortable about the situation of having oneâs sex or gender, the particular ways of thinking about oneâs own sex, the insecurities regarding the sexed characteristics of oneâs body, the practices of finding oneâs 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: 51â52). Ormrodâs judgment included extensive discussion of the nature of sexual identity, and of April Ashleyâs 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 Ashleyâs counter-claim. In an allied decision on the question of costs, Ormrod cancelled the weekly ÂŁ6 maintenance.
4 The decision was big news.
The New York Times reported: âJudge in Britain rules surgery cannot alter a personâs sexâ ([NYT]
1970: 10). History, however, was on April Ashleyâs side. In 2004 the UK passed the Gender Recognition Act, and Ashleyâs 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, âApril AshleyâPortrait of a Ladyâ, as a collaborative project between Liverpool Museum and Homotopia, âthe international festival of queer arts and cultureâ.
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 Ashleyâs requests), Ormrodâs 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: âshifts in the practice of medicine have been realized while the ethical norms of medicine remained unexaminedâ (Schurr 1972: 192). While law âtraditionally follows customâ, in the case of medicine âtoday custom is created with an unwonted rapidity that outstrips the capacity of law to keep paceâ (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, Ormrodâs 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 personâs 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 âlimitâ to âthe effective incorporation of transgender people within the existing gender orderâ (Sharpe 2002: 89). While it has been âsubject to sustained and almost universal criticism within academic and law reform circlesâ, judicial thinking has taken Corbett as its starting-point (Sharpe 2006: 622). The decision âmore than any other, inaugurated transgender jurisprudence in the common law worldâ (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 âtransnational judicial conversationâ (Gilmore 2003: 296). This has been the case both in the application of Corbett, as well as its subsequent unraveling (McCrudden 2...