CORBETT vs. CORBETT: RE-EXAMINED

by M. Italiano


Copyright © 2002 Gendercare.com. All rights reserved.



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 judgement:

 -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 considered.(6)

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)

CONCLUSION


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.

REFERENCES

1) Corbett vs. Corbett (otherwise Ashley)(1970) 2 W.L.R. 1306, 2 All E.R. 33 (P.D.A.)
2) Unreported decision, Supreme Court of New South Wales, Court of Criminal Appeal, 31 October 1988, No. 436 of 1986.
3) Transsexualism and Christian Marriage, by Oliver O'Donovan, 198, Grove Booklet on Ethics No. 48, Grove Books, Bramcote Notts.
4) Ferris, E.A. (1992) Gender verification testing in sports. British Medical Bull. Jul; 48 (3), 683-691.
5) In the marriage of C and D (falsely called C) (1979) 35 FLR 340.
6) Schwartz, J.H. (1993) What The Bones Tell Us. H. Holt, New York.
7) Dewhurst, C.J. (1970) Sex and Gender, The Lancet, March 7, 517.
8) Mills, I.H. (1970) Sex and Gender, The Lancet, March 21, 615.
9) Smith, D.K. (1971) Transsexualism, Sex Reassignment Surgery, and trhe Law. 56, Cornell Law Review, 963-1009.
10) Denny, D. (1994) Gender Dysphoria: A Guide To Research. Garland Publishing, New York.
11) Dewhurst, J. and Gordon, R.R. (1984) Fertility following change of sex: A Follow-up. The Lancet, December 22/29, 1461-1462.