Corbett v Corbett

1970 Probate, Divorce and Admiralty Division

Summary

George Jamieson was born in 1935. At 18, in hospital for depression he was diagnosed as “a constitutional homosexual who says he wants to become a woman”. He later became a female impersonator at the Carousel Nightclub in Paris, described as ’the Mecca of every female impersonator in the world’. After a period of taking oestrogen, at 25 he underwent a “sex change operation” which consisted of “amputation of the testicles and most of the scrotum, and the construction of a so-called ’artificial vagina.” 

Six months later Jamieson met the aristocrat Captain Arthur Corbett, the 3rd Baron Rowallan. Corbett, 40 was unhappily married, a father of four, a transvestite who kept his habit, and his sexual liaisons other women, and with men secret from his wife. Corbett’s cross-dressing was not as effective as Jamieson’s, he said of himself ’I didn’t like what I saw. You want the fantasy to appear right. It utterly failed to appear right in my eyes’. On meeting Jameison he said he was mesmerised ’This was so much more than I could ever hope to be.’ and ’It far outstripped any fantasy for myself. 

Over the next three years Corbett became obsessed with Jamieson. They had an on-off relationship (but with no intimacy). With his assistance, Jamieson changed her name to April Ashley and obtained a passport. “Attempts to persuade the superintendent registrar to change her birth certificate, however, failed.” The Ministry of National Insurance issued a woman’s insurance card, and now treat Ashley as a woman for national insurance purposes.

Ashley was described a living as, and passing as a woman “more or less successfully”. Mr Justice Omerod said “her outward appearance, at first sight, was convincingly feminine, but on closer and longer examination in the witness box it was much less so. The voice, manner, gestures and attitude became increasingly reminiscent of the accomplished female impersonator.”

Following Corbett’s divorce from his first wife in 1963, the couple married in Gibraltar, under a “special license”, there was no legal advice on the validity of the marriage. After the marriage they spent no more than 14 days together, and attempts at sexual intercourse were unsuccessful. As fantasy became reality Ashley and Corbett decided to call it off, and Corbett asked the court to declare that there had been no marriage, since Ashley was in fact a man. Ashley disagreed saying she was a woman (and thus if the marriage ended in divorce would be entitled to some of Corbett’s estate). The court considered medical evidence from a range of sources and decided that Ashley remained a man.

“It has been established that the respondent is not, and was not, a woman at the date of the ceremony of marriage, but was, at all times, a male”

This was the first occasion on which a court in England has been called on to decide the sex of an individual (the technique of vagino-plasty had recently been invented). This case established features which establish a person’s sex, in English Law, which still stand, namely:

  1. Chromosomes (having XX, XY or some other anomalous combination)
  2. Gonads (having, or having had testicles or ovaries)
  3. Genitals and internal sex organs.

The judge and the medical experts considered the question of whether if these features are congruent, but psychological factors are ‘abnormal’ the person should be classified as cases of inter-sex. Mr Justice Omerod decided not.

Omerod J concluded:

“The respondent has been shown to have XY chromosomes and, therefore, to be of male chromosomal sex; to have had testicles prior to the operation and, therefore, to be of male gonadal sex; to have had male external genitalia without any evidence of internal or external female sex organs and, therefore, to be of male genital sex; and psychologically to be a transsexual.”

Omerod J

The court used the term “gender” as meaning the sex which someone is treated as by society, but said that while this could be used for some purposes, there were others, such as marriage, in this case, where sex matters.

The judgement considers the difference between a transvestite and a transsexual, and also notes that areas of life and law can be classified into those in which the sex of the individuals concerned is irrelevant, relevant or an essential determinant of the nature of the relationship.