CORBETT vs. CORBETT: RE-EXAMINED
by M. Italiano
It may be unusual for a British Lord to marry a Liverpool commoner.
Given that the Liverpool commoner was a post-operative transsexual, it would be even more unusual for the British Lord not to believe that he'd have an "easy out" from the marriage whenever and however he wanted, should he become displeased with it.
Wouldn't a court anull his marriage? The English High Court Of Justice was put to this test.
On February 2, 1970, in so granting a decree of nullity to Arthur Corbett for his primary claim that his wife, post-operative transsexual April Ashley was a male at the time of the marriage, and for his secondary claim that she could not consummate the marriage, the court failed this test miserably. It also failed the transsexuals of England. However, a careful re-examination of the decision, known as Corbett vs. Corbett (otherwise Ashley), with a recapitulation of the details found in the judgement, delivered by Sir Justice Ormrod, leave no other conclusion: motives of bigotry, not those of scientific merit, or of sound logic were responsible for the outcome. Several distortions by the judge will be presented as re-examinations.
RE-EXAMINATION #1: The judge restricts deliberations to 3 criteria, the chromosomal, gonadal, and genital sex as they were present AT birth IF congruent.
-The law should adopt in the first place the first three of the doctors' criteria, ie. the chromosomal, gonadal, and genital tests, and if all three are congruent sex for the purposes of marriage should be determined accordingly, and one should ignore any operative intervention.- (1)
The word "ignore", basically places the person in their
pre-operative state. in other words, PAST TENSE STATES ARE
RELEVANT, but PRESENT TENSE STATES ARE IRRELEVANT. The mixing
of these tenses by the judge can be seen in the following passage of his
-The respondent has been shown to...to HAVE HAD testicles prior to the operation and therefore TO BE OF male gonadal sex; to HAVE HAD male external genitalia...therefore TO BE OF male genital sex.- (1) (Capitals added)
The relating of past tense states to evaluate the present
state, lacks sensibility. This is noted as such, by another
judge, in a seperate case dealing with sexual offence, which
Justice Ormrod claimed should be treated as marriage. The
judge, Justice Mathews, writes:
-How can the law sensibly ignore the state of those genitalia...simply because they were artificially created or were not the same as at birth?-(2)
O'Donovan(3), supports the decision on a moral basis, claiming
that a healthy biology in regard to the three criteria of sex listed
above is nature, can't be set aside by remodelling of the genitalia,
which is art, and claims that this argument must be maintained as
"though the procedure were perfected", and not "claiming that the
technique is still incomplete."(3)
Following his argument, we would have to believe that if
hydrogen and oxygen atoms, which form water, if converted,
by nuclear acceleration from sulfur and helium, should
still be regarded as sulfur and helium, since that's how they
started out, and nature had intended them to be. Of course,
if enough were collected, they would indeed form water.
It's a case of an imposition of one's moralistic viewpoint,
not of facts, although facts are used for the distortion.
Perhaps they have to be used, and moreso, twisted, lest the
distorted viewpoint becomes more obvious. In other words, Ormrod
confuses the past with the present. But, even so, O'Donovan
claims even worse. Even if we could get a PERFECT change, we
ought to still dismiss it, because of an imposed philosophy.
That philosophy is this: It started out that way, therefore
it was intended to be that way. Therefore, "case closed".
No more discussion or facts please!
RE-EXAMINATION #2: Justice Ormrod could allow for an intersexed person's sex to be influenced by surgery, but not a transsexual's, although the end result could be the same.
-Of course the real problem shall arise if all three criteria are not congruent. This does not arise in the present case and i must not anticipate, but it would seem to follow from what I have said that the greater weight would probably be given to the GENITAL TEST than to the other two.- (1)
This is a tacit attack on transsexuals who have had
feminizing surgery. The judge is allowing the law to make
exceptions for intersexed individuals in this passage. By
claiming that the genital sex would probably be given greater
weight than the other two criteria in those born with an
incongruity amongst the three, he coincidentally(???)avoids
problems which would ensue, should the chromosomal sex be used
as the ultimate criteria (a problem the International Olympic
Committe is having(4), and a problem that another court had(5),
which didn't correctly interpret the Corbett decision).
Thus, a deliberate(???)loophole is created in the law for
intersexuals. Nontheless, the judge hangs his own reasoning that
"the respondent has been shown to have had male genitalia...
therefore to be of male genital sex"(1), since the genitalia
of a post-operative male to female transsexual, can be no different
than, for example an intersexed individual born with partial
androgen insensitivity syndrome and only mildly virilized
genitalia after both have had feminizing genital surgery. In both
cases, the genitalia would be female, although imperfectly.
Thus, the judge's contention that the genitalia IS of male
genital sex, after surgery, is inaccurate.
RE-EXAMINATION #3: The judge claims that a vagina created by surgery is not adequate for consummation IF created in a transsexual.
-I do not think that sexual intercourse using the completely artificial cavity...can possibly be described as "ordinary and complete intercourse or as vera copula-of the natural sort of coitus." In my judgement it is the reverse of ordinary, and in no sense natural. When such a cavity has been constructed in a male, the difference between using it and anal or intra-crural intercourse is, in my judgement to be measured in centimetres.-
Vaginal intercourse in non-transsexual women and in
transsexuals with and without an artificially constructed vagina
is also a difference to be measured in centimetres from anal or
intra-crural intercourse. Furthermore, an angular difference
in the vagina, based upon male/female sex differences in the
pelvis is irrelevant, since there is more than 10% of overlap
between males and females, even when the entire pelvis is
RE-EXAMINATION #4: The judge doesn't consider hormonal sex to be biological.
-having view to the essentially heterosexual character of the relationship called marriage, the criteria must, in my judgement, be biological, for even the most severe hormonal imbalance which can exist in a person with male chromosomes, male gonads, and male genitalia, cannot reproduce a person who is naturally capable of performing the essential role of a woman in marriage.-
Not only is the essential role of a woman in marriage not
defined anywhere in the judgement, but the wife was given
a hormonal test during the trial, but results were not permitted
to be used in court, because it was not carried out under
supervision. Thus, we can assume that this "non-biological" and irrelevent
test was ordered before the judge decided it to be
such, or was wastedly ordered after his mind was already made up
(just to appease the council for the repondent???) This is
certainly interesting, in that, just shortly into the trial, the
judge asked the parties if they really needed to continue to
waste taxpayers' money!
RE-EXAMINATION #5: The husband's medical witness, Sir John Dewhurst is in the judge's camp: word games and other twists.
In an article in The Lancet(7), Dewhurst refers to Justice
Ormrod's excellent decision. In this report, he echoes Ormrod's
statement about vaginal intercourse being different from anal or
intra-crural intercourse by centimetres if created in a
transsexual. The absurdity of this is noted by Mills(8),
Smith(9), and Denny(10).
Perhaps, Dewhurst was returning the favor, as the judge
referred to a statement by Dewhurst, and used it in his
judgement as follows:
-The body in its postoperative state looke more like a female's than a male's as a result of very skillful surgery. To put it in the words of Professor Dewhurst, "the pastiche of feminity was convincing." This I feel is an accurate descrition of the respondent.-
It is obvious what Ormrod and Dewhurst are doing here.
In acknowledging the body to appear more female than male (as
a result of surgery), they are tacitly acknowledging that the
wife's anatomical sex HAS changed. THUS, they must come up
with a pejorative word to cover for themselves (and their
agenda???) the word pastiche is used. How can we be sure that
this word is used to signify bigotry in this case? This can
be clearly demonstrated by examining another paper wrtitten by
Dewhurst(11), where an intersexed person, born with a fully
masculinized penis and scrotum, had feminizing genital surgery.
In this report(11), Dewhurst states "The vulva showed little
abnormality." So, feminization of a penis and scrotum in
an intersexed person results in a vulva showing little abnormality, whereas,
feminization of a penis and scrotum in a transsexual
results in a pastiche. The usage of very different terminology,
one positive, and the other pejorative, is clearly hypocritical,
and indicative of one's own prejudices and biases. The only
other explanation, of course, can be that of total ignorance,
since later on in this same article, Dewhurst calls what he had
just referred to as a fully "masculinized penis", with penile
urethra, and states, "the clitoris was removed"!!!(11)
On careful re-examintaion of the Corbett vs. Corbett
(otherwise Ashley) decision we are faced with five striking
distortions found in the decision. Although, very commonly
the decision is claimed to be based exclusively upon the
chromosomal make-up of the two partners, this is absolutely
FALSE. The marriage was anulled based upon three criteria
(chromosoma sex, gonadal, AND genital sex) AS they were
present AT birth, IF all three were congruent at birth.
Re-examination #1, demonstrates that the judge used only facts
from the past. In refusing to consider those facts in the present
state, he was not able to reach a conclusion which pertained to
the present state. Re-examination #2, clearly shows how a loophole
in the law can be created for certain individuals (intersexuals)
and illustrates that the END RESULT, IF IN TRANSSEXUALS, does
NOT JUSTIFY THE MEANS, despite the fact that the end result can be the same
(eg., the same genital sex in intersexual and transsexual
persons after treatment. Re-examintaion #3, demonstrates that one
is totally unable to clearly define what consummation is.
Re-examination #4, presents a "pick and choose" category, where
criteria, such as hormonal sex, which clearly makes up a
classification of one's sex, and is clearly biological, can be
dismissed as not such, and be arbitrarily disregarded, by more
than one clever means, if one simply desires to do so.
Re-examintaion #5, shows that things exist ONLY in regard to
the particular word or label which one CHOOSES to use to describe
them at ANY GIVEN moment.
It is clear, that under careful re-examination, the Corbett
decision has indeed failed miserably.
1) Corbett vs. Corbett (otherwise Ashley)(1970) 2 W.L.R.
1306, 2 All E.R. 33 (P.D.A.)