Forensic Science, 5 (1975) l-9 0 Elsevier Sequoia S.A., Lausanne - Printed in The Netherlands
MEDICOLEGAL ASPECTS OF SEX DETERMINATION*
The Right Hon. Sir ROGER ORMROD Royal Courts of Justice, London
(Great Britain)
In all interdisciplinary discussions, such as this, between one or other of the Sciences and the Law, there is a tendency to think of the Law, especially when we spell it with a capital L, in the same way as we think of Medicine, or Chemistry, or Physics. The Law is subconsciously assumed to be, as it were, just another group of phenomena which we can study and talk about. In fact, it is fundamentally different because it is a complete a&fact. On analysis, it is nothing more than a collection of man-made rules, any one of which can, at least in theory, be altered if and when the legislators so decide. In contrast, the sciences are concerned with objective phenomena, governed by rules which are quite independent of man, and which cannot be changed, although they may be interpreted differently from time to time in the light of new information about the phenomena concerned. So the two subjects, Law and Science, cannot be handled in the same way. This contrast, however, never appears to be, and,*in fact, is not, as uncompromising as I have made it sound, for the Law can be studied to some extent phenomenologitally. We can examine the Law as it is at the present time, we can ascertain what it was in the past, and we can study its effect on man and society now and in former days. Nor can it be easily changed, for many of its rules have very deep roots in social history, so deep in fact that some could only be changed by radically altering social attitudes and patterns themselves. In this sense, the Law has acquired a semi-objective status. It was much easier in the past to see it in this light than it is today. Large-scale legislation, by Parliaments or similar law-making institutions, is a relatively recent development and, until this capacity was developed, changes in the Law took place by a process of slow evolution - the word is quite appropriate because the processes of adaptation are in some ways akin to biological evolution, although more in the Lamarckian than the Darwinian sense. The Law, in the past, really seemed to have an existence of its own and, indeed, philosophers for centuries thought so and argued about what they called Natural Law or the Law of Nature, but without any success in identifying it. The power of legislation in modern states, however, has clearly demonstrated the temporary or provisional character of even such ancient laws as those against homosexuality or abortion. * An address delivered at the Third South African International Symposium on Forensic Medicine, held in Durban, South Africa, on August 15, 1974.
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It is, therefore, against this background that we must discuss the legal approach to sex determination, bearing in mind that the Law is not absolute, is subject to change as social conditions change, and is capable of rapid and radical adaptation. May I, in parenthesis, at this point observe that scientists tend to become actively interested in the law when they find themselves in a dilemma in their own discipline. Scientific study has produced much new anatomical, physiological and psychological data about sex differentiation, which has virtually eliminated or cast doubt upon, all the old traditional sex indicators. Hence, perhaps, this present interdisciplinary discussion! The same phenomenon can be observed in relation to death. When Medicine finds it increasingly difficult to define the term in the light of its new techniques, it turns to the Law for help. But, if the law-makers are wise, it receives the dusty answer “the patient is dead when the doctors say he is dead”! I am not sure, however, that the Law will go so far as to say that medical “assignment” of sex is final. The law, and I am speaking of English law because I know too little of other systems to venture an opinion on them, is surprisingly indifferent to sex. In saying this I am well aware that of all the distinctions which the Common Law can claim, no one will deny its right to be regarded as the most pragmatic system in existence. English judges, and even Parliament, work on a problem-solving basis. Each case is looked at on its merits. Gradually, as the decisions accumulate, it is possible, sometimes with difficulty, to discern an underlying principle, which is then applied to subsequent cases, but there is a marked reluctance to formulate general principles and, indeed, when a judge attempts it, he runs the risk of his brethren observing that his remarks go beyond what was necessary for the decision in the particular case, are mere obiter dicta, and not binding upon them. Consequently, English law will involve itself in the question of sex determination only when it cannot evade the issue. The criminal law is asexual in the sense that most crimes can be committed by men or women. Rape, buggery and living on immoral earnings are the only ones in which sex discrimination appears. But it is of little importance. If a man, on a charge of rape, sought to argue that the victim was not a woman, the charge could easily be amended to indecent assault, which applies equally to males and females. Similarly, in bugger-y, the charge could be amended to sodomy if he argued that his partner was a female, the essence of both these offences being penetration per unum. The law of torts, or actionable wrongs, again is asexual, although, I suppose, a defendant sued for slander for casting doubt on the chastity of a woman might conceivably challenge the plaintiff’s gender! Much the same is true of the law of contract, although there are some contracts in which sex or gender is important; for example, in contracts of life insurance there are differential rates of premiums between the sexes, and equal pay for equal work is still some way off in England!
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There are, in truth, only two areas of the law in which sex determination might become a live issue. These are marriage and succession to property or titles. Only one case has arisen in England so far, and one in Scotland. The Scats case is not reported but it was, I believe, concerned with succession in some way. The English case is Corbett v. Corbett 1971 [l],the well-known April Ashley case which came before me, and to which I owe the, then wholly unforeseen, pleasure of being here today as one of your guests! The uniqueness of the April Ashley case is in itself significant and it is instructive to look briefly at its aetiology. It arose out of the coincidence of two wholly unconnected events; the development of the surgical technique of vaginoplasty and its extension in the 1950’s to male transsexuals, so producing a pseudovagina in place of a penis and scrotum; and a decision of our Court of Appeal in S. v. S. 1963 [2], holding that is was a defence to an annulment suit, brought by a husband against a wife on the ground that she was incapable of sexual intercourse, to assert that her infantile type vagina could be enlarged by plastic surgery to permit full penetration. Prior to this decision, proof that the wife’s vagina was so abnormal that normal penetration was impossible led inevitably to a decree of nullity, so there was no need to consider anything more than that simple anatomical fact. But for this decision it would never have occurred to any lawyer that the construetion by vaginoplasty of something akin to a vagina in a male could possibly render such an individual capable of consummating a marriage in the female role. Such a so-called marriage could have been disposed of quite simply as a case of incapacity, and no further questions would have been asked. S. v. S., however, opened up unexpected possibilities, quite unforeseen by the judges who decided that case in a mood, perhaps, of sympathy for the unfortunate malformed wife. So it was possible in the April Ashley case, at least, to argue that if, as appeared to be the case, full penetration into the surgically constructed pseudovagina was possible, the “marriage” could not be annulled on the simple ground of incapacity. So it became necessary to determine the sex of the so-called “wife” because, if April Ashley was rightly categorised as a male, the so-called marriage to Mr. Corbett would be no marriage at all, whereas it would be a potentially valid marriage if April Ashley could be categorised as a female. The case gave rise to some discussion as to why a male after a vaginoplasty could not marry a man, and much was said about the desirability of two homosexual males or females being able to marry one another. To that there seems to be a short answer. “Marriage” is an ordinary English word which is used and has been used for centuries to describe a particular and very common type of relationship, namely, that between a man and a woman which forms the basis of family life. It may not be easy in these days to find a form of words which precisely defines it and at the same time excludes a pair consisting of a man and a male transsexual with a vaginoplasty. Yet we all of us recognise without the slightest difficulty that the nature of such a relationship is fundamentally different from that which we describe as a mar-
4
riage. In this and in other fields, attempts to find a form of words in which to define, exclusively and inclusively, a concept familiar to us all, sometimes results in making the concept itself unrecognisable. How then, does or should the law approach the problem of sex determination? My first answer is, as I have already said, that it should avoid it as far as possible and try to resolve the case in some other way. If the question is unavoidable then, on pragmatic principles, the solution should be guided largely by the nature of the case in which the question arises. In the case of marriage this will direct attention primarily, but not exclusively, to the external genital characteristics of the individual since it has always been recognised that capacity for normal sexual intercourse as opposed to capacity to bear or procreate children, lies at the heart of the marriage relationship. It was, of course, fundamental to Christian marriage. The Canon Law from its earliest times provided for annulment of marriage where one party was incapable of ueru copula or normal sexual intercourse. The legal solution of these problems inevitably will depend upon determining the consequences in law of the expert medical evidence about the physical condition of the person concerned. Moreover, since it is an essential characteristic of the legal process that it must, if it cannot evade the question, provide a definite answer, there is no legal equivalent to the provisional diagnosis. The law must, therefore, reach its own conclusion, determining its own criteria in the light of all the available medical evidence. In other words, it need not be bound by medical criteria which have been devised for a different purpose, namely, to determine the best way of managing a difficult clinical and social problem; but it will, of course, give great weight to medical opinion. The law cannot, therefore, in my opinion, accept, unreservedly, the so-called ‘assignment’ by doctors of their intersex patients to the male or female sex, as the case may be, but it can use and, if necessary, adapt for its own purposes the criteria used by doctors in reaching their conclusions. The four criteria which are used in medicine to assess sexual status are: Chromosomal factors (XX or XY or variants); Gonadal factors (presence of testicular or ovarian tissue); Genital factors (including internal sex organs); Psychological factors. In the two areas of the law which I have referred to, namely, marriage and succession to property or titles, in which the law may be called upon to psychological factors answer the question “man or woman?“, unequivocally, must, in my view, have little, if any, weight. The fact that an individual believes that he is a woman and feels like a woman and passionately desires to be a woman, notwithstanding his male physical attributes, cannot affect what must, in these contexts, be an objective assessment; objective, because the rights of other people will, or may, be critically affected by the decision. That is not. to say that the law will be rigid or unsympathetic to psychological factors in other situations which do not demand an objective answer. It is quite elastic enough to accommodate the transsexual in many aspects of life.
For example, in England a transsexual male will be accepted as a female for employment and national insurance purposes, or vice versa, provided that the government department concerned can be satisfied that it is a genuine case. There are in fact an appreciable number of such cases. Nor would the law interfere in such matters as admission to a female ward, use of women’s lavatories, or, if the question arose, admission to a woman’s prison. Nor, of course, would it question the wearing of woman’s clothes. A male transsexual soliciting for prostitution might trouble the police a little, but only as to the precise charge to bring! In the case of marriage the question will present itself to the law in this form. “Is it proved that ‘A’ is a woman or (if the other partner is a woman) a man”? In succession cases it is likely to be the opposite, i.e. “Is it proved that ‘A’ is the son of ‘B’?“, assuming that a title is involved, or, “Is it proved that ‘A’ is a male heir”? in the case of wills or property settlements. The form of the question is important for, if the evidence falls short of proof, the law will answer, “No, it is not proved”. It will not answer in the form “ ‘A’ is a man” unless it is necessary to go so far. Returning now to the first three of the medical criteria, we can say with confidence that, if the evidence establishes that the chromosomal constitution is XY; that testicular tissue is, or was before surgical intervention, present; that ovarian tissue was and is absent; and that the individual was born with a penis and testicles and without uterus or vagina that individual is not a woman and is, therefore, incapable of marrying a man. Most judges, I think, would also hold the corollary proved and, if it were necessary, declare such an individual to be a male. In other words, leaving aside the effects of operative intervention, where the chromosomal, gonadal and genital factors are congruent, the sex will be determined accordingly. Where these three criteria are not congruent, i.e. cases of true physical intersex, much more difficult questions could arise, although I am not aware of any such case ever having been heard in our courts. For the sake of clarity I will consider the main intersex syndromes separately, although any comments are necessarily speculative. Adrenogenital syndrome These cases are female in terms of chromosomes and gonads; they have XX chromosomes and ovaries. But their genitalia are abnormal due to masculinisation taking place in utero owing to the exposure of the female foetus to excessive amounts of masculinising hormones, produced by tumours in the mother or the foetus itself, or possibly by inappropriate medication during pregnancy. In consequence, the clitoris may be enlarged, sometimes enormously, so that it looks like a phallus and the labia are fused, producing the appearance of an empty scrotum. This leads to mistakes in sex identification at birth which sometimes result in the individual being brought up in the wrong sex. Appropriate surgical treatment can restore them to their true
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sex in the fullest sense. Should the question ever arise for determination, I have little doubt that such a person would be regarded in law as an abnormal female. Testicular feminisation syndrome In this syndrome the chromosomes are XY and, under the influence of the Y chromosome, testicular tissue develops but, for some reason, fails to masculinise the foetus. The result is an apparent female. There are, of course, no ovaries but the external genitalia appear to be female. There is a vagina, usually, but not always, quite short and there may be a uterus of an infantile type. These individuals are invariably identified as female at birth and live their lives as females. They are, of course, sterile and usually incapable of normal sexual intercourse. The wife in the case of S. v. S., which I mentioned earlier, may have been a case of this syndrome. In practice it seems clear that this group would also be classified by the law as female, mainly because it would not occur to anyone to question their sex. Should it be questioned, my guess would be that the law would decide to regard them as female, relying on their genital and other physical appearances and the unequivocally female character of their social role, ignoring the Y chromosome and the presence of abnormal testicular tissue, even if an intra abdominal testis could be demonstrated. Annulment of marriage on the ground of physical incapacity to consummate would create no problem in most cases. Testicular failure syndrome This is similar to the previous group in some ways but evidence of masculinisation may appear at puberty, and lead to a reclassification rather than a sex change. This group is potentially the most difficult for the law to classify and I prefer not to hazard a guess until such a case arises for decision. Much might depend on which sex role the individual had assumed at the time when the decision had to be made. In the case of marriage, annulment on grounds of incapacity would be available. It would be difficult to maintain that an individual who was living in society as a man and had both XY chromosomes and testicular tissue was not a male, albeit an abnormal one. On the other hand, if the female social role had been maintained it might be difficult to decide. It is said that cases of this type are to be found occasionally in women athletes. The true hermaphrodite These are cases in which both testicular and ovarian tissue is present and the genitalia are equivocal. Until I read a recent paper by Roux I had supposed these cases to be so rare that they were of theoretical interest only, but he reported 19 cases among 34 cases of intersex treated over the past 10
years at the Children’s Hospital, Cape Town. Of these, 8 were assigned to the female sex on the basis of having a visible or demonstrable vagina, and 10 were assigned to the male sex in the absence of a vagina. He considers that the choice of sex for rearing purposes is best determined by “the external genital equipment available”. No doubt this is the most sensitive and practical solution. It is impossible to say with certainty how such cases would be decided if the issue ever came to decision in a court, but I would guess that Roux’s view of the importance of the external genitalia would carry a lot of weight. The other syndromes are unlikely to cause difficulty: persons with Klinefelter’s syndrome are usually clearly male; those with Turner’s syndrome, undoubtedly female. Some points can be made from this analysis with a fair degree of certainty. The law will not attach much importance to the sex chromosomes; it will give much weight to the external genitalia; and if the gonads correspond with the social role adopted by the individual in question, the combined effect will probably be conclusive. It will be very sceptical of “sex change” operations although it will accept operations designed to remove physical anomalies such as the enlarged clitoris of the adrenogenital syndrome or the removal of ovarian or testicular tissue as the case may be in the true hermaphrodite. The discussion so far has been necessarily largely theoretical and I should now explain in more detail why these interesting issues virtually never arise for decision. The courts are only concerned with marriages when they fail, and the parties are mainly concerned to secure their freedom to remarry. This they can achieve either by divorce or by annulment. The usual ground for annulment is incapacity for normal sexual intercourse on the part of either spouse; a petitioner can rely on his or her own incapacity if necessary. In the overwhelming majority of these cases the incapacity relied on is psychological in origin - frigidity, vaginismus, inability to get or sustain an erection or premature ejaculation. Physical incapacity accounts for a very small proportion. In nearly all cases of physical intersex, sexual incapacity will be obvious, although there may be some cases of the testicular feminisation syndrome in which the vagina will be sufficient to permit “normal” or “full and complete” intercourse. In such cases the sex of the person concerned will be assumed to be female unless by chance XY chromosomes or intra-abdominal testes are discovered. It follows that in practically every case the desired objective can be achieved without questioning anybody’s sex. The April Ashley case, however, exposed a potentially weak spot in the law’s defences. By English law the same financial consequences follow a decree of nullity as a decree of divorce. In each case the court may, although in nullity cases it often does not, require the husband to make financial provision for the wife. But it could be and was argued in that case, that if the marriage is no marriage at all because the parties are of the same sex, the court could do no more than declare .that it was a non-marriage and no
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financial consequences could follow. So there might be a motive for putting the sex of the partner in issue. This risk became unexpectedly more serious when a Bill containing proposals for reforming our law of nullity was put before Parliament. The draughtsman, a legal purist, provided for three categories, non-marriages (i.e. where the parties were of the same sex); void marriages (e.g. bigamy); and voidable marriages (e.g. for incapacity). The first were to create no financial claims. The April Ashley case, however, had opened the eyes of lawyers to the possibilities, and for a while the spectre of unfortunate intersex cases being exposed to full investigation in a court began to look like a real possibility. Happily, when the possible price of legal pedantry was explained to the promoters of the Bill, they agreed to amend it, and the Act as passed draws no distinction between non-marriages and void marriages so that there is now no motive for challenging the apparent sex of someone unfortunate enough to suffer from one of these intersex syndromes. It may be of interest to consider briefly the facts in that case. I was fortunate in having some of the best medical witnesses I have ever heard. My task was made much easier by the fact that there was an unusual amount of reliable data available. This showed that at the age of 18 years George Jamieson, as he was then called, was examined in hospital and was found to be a normal male except that the body hair was noted as “scanty” and he was demanding female sex hormones to turn him into a woman. Later, he joined a well-known drag night-club in Paris and became a female impersonator. At some stage he began to take oestrogen and developed quite impressive breasts. He then underwent an operation in Casablanca at which the testicles were removed, most of the penis was excised, and an opening was constructed in the perineum, lined with penile and scrotal skin, simulating a vagina and lying posterior to the bladder. Penile penetration into this sac was considered possible by the medical examiners. Thereafter, George Jamieson became April Ashley, and adopted the female role. Later still and, I think, unwillingly, April Ashley “married” Mr. Corbett, who was himself an admitted transvestite. Their association before “marriage” lasted for three years, but it was destroyed by the so-called “marriage” almost immediately. April left him after a few days. Interestingly, both agreed that there had been virtually no sexual activity between them at any time. Perhaps fantasy could not survive the impact of reality. Investigations showed that the chromosomes were XY; it was clear that April Ashley had had male gonads and genitalia before operation and had no trace of any female gonads or genitalia. It was obviously impossible to establish that April was a woman and, therefore, the so-called “marriage” was a non-marriage. It was strenuously argued that April was capable of sexual intercourse, using the sac or pouch as a vagina, and reliance was placed on the case I mentioned earlier, S. v.( S., to show that a vagina wholly or partially constructed by plastic surgery rendered a person capable of consummating a marriage. I expressed, not too robustly, I hope, the view that,
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whatever else it might be, copulation in such a pouch, in a male, could not possibly be ueru cop&a or natural or normal intercourse. It only differed from anal or intracrural intercourse by a few centimetres! I hope I have not bored you with these legal speculations but if I have demonstrated that the law can and will treat these sad and difficult cases as sensitively and sympathetically as possible, I shall not apologise. REFERENCES 1 Corbett v. Corbett (otherwise Ashley), 1971 Probate Division, p. 83. 2 S.Y. v. S.Y. (otherwise W), 1963 Probate Division, p. 37.
MEDICOLEGAL ASPECTS OF SEX DETERMINATION*
The Right Hon. Sir ROGER ORMROD Royal Courts of Justice, London
(Great Britain)
In all interdisciplinary discussions, such as this, between one or other of the Sciences and the Law, there is a tendency to think of the Law, especially when we spell it with a capital L, in the same way as we think of Medicine, or Chemistry, or Physics. The Law is subconsciously assumed to be, as it were, just another group of phenomena which we can study and talk about. In fact, it is fundamentally different because it is a complete a&fact. On analysis, it is nothing more than a collection of man-made rules, any one of which can, at least in theory, be altered if and when the legislators so decide. In contrast, the sciences are concerned with objective phenomena, governed by rules which are quite independent of man, and which cannot be changed, although they may be interpreted differently from time to time in the light of new information about the phenomena concerned. So the two subjects, Law and Science, cannot be handled in the same way. This contrast, however, never appears to be, and,*in fact, is not, as uncompromising as I have made it sound, for the Law can be studied to some extent phenomenologitally. We can examine the Law as it is at the present time, we can ascertain what it was in the past, and we can study its effect on man and society now and in former days. Nor can it be easily changed, for many of its rules have very deep roots in social history, so deep in fact that some could only be changed by radically altering social attitudes and patterns themselves. In this sense, the Law has acquired a semi-objective status. It was much easier in the past to see it in this light than it is today. Large-scale legislation, by Parliaments or similar law-making institutions, is a relatively recent development and, until this capacity was developed, changes in the Law took place by a process of slow evolution - the word is quite appropriate because the processes of adaptation are in some ways akin to biological evolution, although more in the Lamarckian than the Darwinian sense. The Law, in the past, really seemed to have an existence of its own and, indeed, philosophers for centuries thought so and argued about what they called Natural Law or the Law of Nature, but without any success in identifying it. The power of legislation in modern states, however, has clearly demonstrated the temporary or provisional character of even such ancient laws as those against homosexuality or abortion. * An address delivered at the Third South African International Symposium on Forensic Medicine, held in Durban, South Africa, on August 15, 1974.
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It is, therefore, against this background that we must discuss the legal approach to sex determination, bearing in mind that the Law is not absolute, is subject to change as social conditions change, and is capable of rapid and radical adaptation. May I, in parenthesis, at this point observe that scientists tend to become actively interested in the law when they find themselves in a dilemma in their own discipline. Scientific study has produced much new anatomical, physiological and psychological data about sex differentiation, which has virtually eliminated or cast doubt upon, all the old traditional sex indicators. Hence, perhaps, this present interdisciplinary discussion! The same phenomenon can be observed in relation to death. When Medicine finds it increasingly difficult to define the term in the light of its new techniques, it turns to the Law for help. But, if the law-makers are wise, it receives the dusty answer “the patient is dead when the doctors say he is dead”! I am not sure, however, that the Law will go so far as to say that medical “assignment” of sex is final. The law, and I am speaking of English law because I know too little of other systems to venture an opinion on them, is surprisingly indifferent to sex. In saying this I am well aware that of all the distinctions which the Common Law can claim, no one will deny its right to be regarded as the most pragmatic system in existence. English judges, and even Parliament, work on a problem-solving basis. Each case is looked at on its merits. Gradually, as the decisions accumulate, it is possible, sometimes with difficulty, to discern an underlying principle, which is then applied to subsequent cases, but there is a marked reluctance to formulate general principles and, indeed, when a judge attempts it, he runs the risk of his brethren observing that his remarks go beyond what was necessary for the decision in the particular case, are mere obiter dicta, and not binding upon them. Consequently, English law will involve itself in the question of sex determination only when it cannot evade the issue. The criminal law is asexual in the sense that most crimes can be committed by men or women. Rape, buggery and living on immoral earnings are the only ones in which sex discrimination appears. But it is of little importance. If a man, on a charge of rape, sought to argue that the victim was not a woman, the charge could easily be amended to indecent assault, which applies equally to males and females. Similarly, in bugger-y, the charge could be amended to sodomy if he argued that his partner was a female, the essence of both these offences being penetration per unum. The law of torts, or actionable wrongs, again is asexual, although, I suppose, a defendant sued for slander for casting doubt on the chastity of a woman might conceivably challenge the plaintiff’s gender! Much the same is true of the law of contract, although there are some contracts in which sex or gender is important; for example, in contracts of life insurance there are differential rates of premiums between the sexes, and equal pay for equal work is still some way off in England!
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There are, in truth, only two areas of the law in which sex determination might become a live issue. These are marriage and succession to property or titles. Only one case has arisen in England so far, and one in Scotland. The Scats case is not reported but it was, I believe, concerned with succession in some way. The English case is Corbett v. Corbett 1971 [l],the well-known April Ashley case which came before me, and to which I owe the, then wholly unforeseen, pleasure of being here today as one of your guests! The uniqueness of the April Ashley case is in itself significant and it is instructive to look briefly at its aetiology. It arose out of the coincidence of two wholly unconnected events; the development of the surgical technique of vaginoplasty and its extension in the 1950’s to male transsexuals, so producing a pseudovagina in place of a penis and scrotum; and a decision of our Court of Appeal in S. v. S. 1963 [2], holding that is was a defence to an annulment suit, brought by a husband against a wife on the ground that she was incapable of sexual intercourse, to assert that her infantile type vagina could be enlarged by plastic surgery to permit full penetration. Prior to this decision, proof that the wife’s vagina was so abnormal that normal penetration was impossible led inevitably to a decree of nullity, so there was no need to consider anything more than that simple anatomical fact. But for this decision it would never have occurred to any lawyer that the construetion by vaginoplasty of something akin to a vagina in a male could possibly render such an individual capable of consummating a marriage in the female role. Such a so-called marriage could have been disposed of quite simply as a case of incapacity, and no further questions would have been asked. S. v. S., however, opened up unexpected possibilities, quite unforeseen by the judges who decided that case in a mood, perhaps, of sympathy for the unfortunate malformed wife. So it was possible in the April Ashley case, at least, to argue that if, as appeared to be the case, full penetration into the surgically constructed pseudovagina was possible, the “marriage” could not be annulled on the simple ground of incapacity. So it became necessary to determine the sex of the so-called “wife” because, if April Ashley was rightly categorised as a male, the so-called marriage to Mr. Corbett would be no marriage at all, whereas it would be a potentially valid marriage if April Ashley could be categorised as a female. The case gave rise to some discussion as to why a male after a vaginoplasty could not marry a man, and much was said about the desirability of two homosexual males or females being able to marry one another. To that there seems to be a short answer. “Marriage” is an ordinary English word which is used and has been used for centuries to describe a particular and very common type of relationship, namely, that between a man and a woman which forms the basis of family life. It may not be easy in these days to find a form of words which precisely defines it and at the same time excludes a pair consisting of a man and a male transsexual with a vaginoplasty. Yet we all of us recognise without the slightest difficulty that the nature of such a relationship is fundamentally different from that which we describe as a mar-
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riage. In this and in other fields, attempts to find a form of words in which to define, exclusively and inclusively, a concept familiar to us all, sometimes results in making the concept itself unrecognisable. How then, does or should the law approach the problem of sex determination? My first answer is, as I have already said, that it should avoid it as far as possible and try to resolve the case in some other way. If the question is unavoidable then, on pragmatic principles, the solution should be guided largely by the nature of the case in which the question arises. In the case of marriage this will direct attention primarily, but not exclusively, to the external genital characteristics of the individual since it has always been recognised that capacity for normal sexual intercourse as opposed to capacity to bear or procreate children, lies at the heart of the marriage relationship. It was, of course, fundamental to Christian marriage. The Canon Law from its earliest times provided for annulment of marriage where one party was incapable of ueru copula or normal sexual intercourse. The legal solution of these problems inevitably will depend upon determining the consequences in law of the expert medical evidence about the physical condition of the person concerned. Moreover, since it is an essential characteristic of the legal process that it must, if it cannot evade the question, provide a definite answer, there is no legal equivalent to the provisional diagnosis. The law must, therefore, reach its own conclusion, determining its own criteria in the light of all the available medical evidence. In other words, it need not be bound by medical criteria which have been devised for a different purpose, namely, to determine the best way of managing a difficult clinical and social problem; but it will, of course, give great weight to medical opinion. The law cannot, therefore, in my opinion, accept, unreservedly, the so-called ‘assignment’ by doctors of their intersex patients to the male or female sex, as the case may be, but it can use and, if necessary, adapt for its own purposes the criteria used by doctors in reaching their conclusions. The four criteria which are used in medicine to assess sexual status are: Chromosomal factors (XX or XY or variants); Gonadal factors (presence of testicular or ovarian tissue); Genital factors (including internal sex organs); Psychological factors. In the two areas of the law which I have referred to, namely, marriage and succession to property or titles, in which the law may be called upon to psychological factors answer the question “man or woman?“, unequivocally, must, in my view, have little, if any, weight. The fact that an individual believes that he is a woman and feels like a woman and passionately desires to be a woman, notwithstanding his male physical attributes, cannot affect what must, in these contexts, be an objective assessment; objective, because the rights of other people will, or may, be critically affected by the decision. That is not. to say that the law will be rigid or unsympathetic to psychological factors in other situations which do not demand an objective answer. It is quite elastic enough to accommodate the transsexual in many aspects of life.
For example, in England a transsexual male will be accepted as a female for employment and national insurance purposes, or vice versa, provided that the government department concerned can be satisfied that it is a genuine case. There are in fact an appreciable number of such cases. Nor would the law interfere in such matters as admission to a female ward, use of women’s lavatories, or, if the question arose, admission to a woman’s prison. Nor, of course, would it question the wearing of woman’s clothes. A male transsexual soliciting for prostitution might trouble the police a little, but only as to the precise charge to bring! In the case of marriage the question will present itself to the law in this form. “Is it proved that ‘A’ is a woman or (if the other partner is a woman) a man”? In succession cases it is likely to be the opposite, i.e. “Is it proved that ‘A’ is the son of ‘B’?“, assuming that a title is involved, or, “Is it proved that ‘A’ is a male heir”? in the case of wills or property settlements. The form of the question is important for, if the evidence falls short of proof, the law will answer, “No, it is not proved”. It will not answer in the form “ ‘A’ is a man” unless it is necessary to go so far. Returning now to the first three of the medical criteria, we can say with confidence that, if the evidence establishes that the chromosomal constitution is XY; that testicular tissue is, or was before surgical intervention, present; that ovarian tissue was and is absent; and that the individual was born with a penis and testicles and without uterus or vagina that individual is not a woman and is, therefore, incapable of marrying a man. Most judges, I think, would also hold the corollary proved and, if it were necessary, declare such an individual to be a male. In other words, leaving aside the effects of operative intervention, where the chromosomal, gonadal and genital factors are congruent, the sex will be determined accordingly. Where these three criteria are not congruent, i.e. cases of true physical intersex, much more difficult questions could arise, although I am not aware of any such case ever having been heard in our courts. For the sake of clarity I will consider the main intersex syndromes separately, although any comments are necessarily speculative. Adrenogenital syndrome These cases are female in terms of chromosomes and gonads; they have XX chromosomes and ovaries. But their genitalia are abnormal due to masculinisation taking place in utero owing to the exposure of the female foetus to excessive amounts of masculinising hormones, produced by tumours in the mother or the foetus itself, or possibly by inappropriate medication during pregnancy. In consequence, the clitoris may be enlarged, sometimes enormously, so that it looks like a phallus and the labia are fused, producing the appearance of an empty scrotum. This leads to mistakes in sex identification at birth which sometimes result in the individual being brought up in the wrong sex. Appropriate surgical treatment can restore them to their true
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sex in the fullest sense. Should the question ever arise for determination, I have little doubt that such a person would be regarded in law as an abnormal female. Testicular feminisation syndrome In this syndrome the chromosomes are XY and, under the influence of the Y chromosome, testicular tissue develops but, for some reason, fails to masculinise the foetus. The result is an apparent female. There are, of course, no ovaries but the external genitalia appear to be female. There is a vagina, usually, but not always, quite short and there may be a uterus of an infantile type. These individuals are invariably identified as female at birth and live their lives as females. They are, of course, sterile and usually incapable of normal sexual intercourse. The wife in the case of S. v. S., which I mentioned earlier, may have been a case of this syndrome. In practice it seems clear that this group would also be classified by the law as female, mainly because it would not occur to anyone to question their sex. Should it be questioned, my guess would be that the law would decide to regard them as female, relying on their genital and other physical appearances and the unequivocally female character of their social role, ignoring the Y chromosome and the presence of abnormal testicular tissue, even if an intra abdominal testis could be demonstrated. Annulment of marriage on the ground of physical incapacity to consummate would create no problem in most cases. Testicular failure syndrome This is similar to the previous group in some ways but evidence of masculinisation may appear at puberty, and lead to a reclassification rather than a sex change. This group is potentially the most difficult for the law to classify and I prefer not to hazard a guess until such a case arises for decision. Much might depend on which sex role the individual had assumed at the time when the decision had to be made. In the case of marriage, annulment on grounds of incapacity would be available. It would be difficult to maintain that an individual who was living in society as a man and had both XY chromosomes and testicular tissue was not a male, albeit an abnormal one. On the other hand, if the female social role had been maintained it might be difficult to decide. It is said that cases of this type are to be found occasionally in women athletes. The true hermaphrodite These are cases in which both testicular and ovarian tissue is present and the genitalia are equivocal. Until I read a recent paper by Roux I had supposed these cases to be so rare that they were of theoretical interest only, but he reported 19 cases among 34 cases of intersex treated over the past 10
years at the Children’s Hospital, Cape Town. Of these, 8 were assigned to the female sex on the basis of having a visible or demonstrable vagina, and 10 were assigned to the male sex in the absence of a vagina. He considers that the choice of sex for rearing purposes is best determined by “the external genital equipment available”. No doubt this is the most sensitive and practical solution. It is impossible to say with certainty how such cases would be decided if the issue ever came to decision in a court, but I would guess that Roux’s view of the importance of the external genitalia would carry a lot of weight. The other syndromes are unlikely to cause difficulty: persons with Klinefelter’s syndrome are usually clearly male; those with Turner’s syndrome, undoubtedly female. Some points can be made from this analysis with a fair degree of certainty. The law will not attach much importance to the sex chromosomes; it will give much weight to the external genitalia; and if the gonads correspond with the social role adopted by the individual in question, the combined effect will probably be conclusive. It will be very sceptical of “sex change” operations although it will accept operations designed to remove physical anomalies such as the enlarged clitoris of the adrenogenital syndrome or the removal of ovarian or testicular tissue as the case may be in the true hermaphrodite. The discussion so far has been necessarily largely theoretical and I should now explain in more detail why these interesting issues virtually never arise for decision. The courts are only concerned with marriages when they fail, and the parties are mainly concerned to secure their freedom to remarry. This they can achieve either by divorce or by annulment. The usual ground for annulment is incapacity for normal sexual intercourse on the part of either spouse; a petitioner can rely on his or her own incapacity if necessary. In the overwhelming majority of these cases the incapacity relied on is psychological in origin - frigidity, vaginismus, inability to get or sustain an erection or premature ejaculation. Physical incapacity accounts for a very small proportion. In nearly all cases of physical intersex, sexual incapacity will be obvious, although there may be some cases of the testicular feminisation syndrome in which the vagina will be sufficient to permit “normal” or “full and complete” intercourse. In such cases the sex of the person concerned will be assumed to be female unless by chance XY chromosomes or intra-abdominal testes are discovered. It follows that in practically every case the desired objective can be achieved without questioning anybody’s sex. The April Ashley case, however, exposed a potentially weak spot in the law’s defences. By English law the same financial consequences follow a decree of nullity as a decree of divorce. In each case the court may, although in nullity cases it often does not, require the husband to make financial provision for the wife. But it could be and was argued in that case, that if the marriage is no marriage at all because the parties are of the same sex, the court could do no more than declare .that it was a non-marriage and no
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financial consequences could follow. So there might be a motive for putting the sex of the partner in issue. This risk became unexpectedly more serious when a Bill containing proposals for reforming our law of nullity was put before Parliament. The draughtsman, a legal purist, provided for three categories, non-marriages (i.e. where the parties were of the same sex); void marriages (e.g. bigamy); and voidable marriages (e.g. for incapacity). The first were to create no financial claims. The April Ashley case, however, had opened the eyes of lawyers to the possibilities, and for a while the spectre of unfortunate intersex cases being exposed to full investigation in a court began to look like a real possibility. Happily, when the possible price of legal pedantry was explained to the promoters of the Bill, they agreed to amend it, and the Act as passed draws no distinction between non-marriages and void marriages so that there is now no motive for challenging the apparent sex of someone unfortunate enough to suffer from one of these intersex syndromes. It may be of interest to consider briefly the facts in that case. I was fortunate in having some of the best medical witnesses I have ever heard. My task was made much easier by the fact that there was an unusual amount of reliable data available. This showed that at the age of 18 years George Jamieson, as he was then called, was examined in hospital and was found to be a normal male except that the body hair was noted as “scanty” and he was demanding female sex hormones to turn him into a woman. Later, he joined a well-known drag night-club in Paris and became a female impersonator. At some stage he began to take oestrogen and developed quite impressive breasts. He then underwent an operation in Casablanca at which the testicles were removed, most of the penis was excised, and an opening was constructed in the perineum, lined with penile and scrotal skin, simulating a vagina and lying posterior to the bladder. Penile penetration into this sac was considered possible by the medical examiners. Thereafter, George Jamieson became April Ashley, and adopted the female role. Later still and, I think, unwillingly, April Ashley “married” Mr. Corbett, who was himself an admitted transvestite. Their association before “marriage” lasted for three years, but it was destroyed by the so-called “marriage” almost immediately. April left him after a few days. Interestingly, both agreed that there had been virtually no sexual activity between them at any time. Perhaps fantasy could not survive the impact of reality. Investigations showed that the chromosomes were XY; it was clear that April Ashley had had male gonads and genitalia before operation and had no trace of any female gonads or genitalia. It was obviously impossible to establish that April was a woman and, therefore, the so-called “marriage” was a non-marriage. It was strenuously argued that April was capable of sexual intercourse, using the sac or pouch as a vagina, and reliance was placed on the case I mentioned earlier, S. v.( S., to show that a vagina wholly or partially constructed by plastic surgery rendered a person capable of consummating a marriage. I expressed, not too robustly, I hope, the view that,
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whatever else it might be, copulation in such a pouch, in a male, could not possibly be ueru cop&a or natural or normal intercourse. It only differed from anal or intracrural intercourse by a few centimetres! I hope I have not bored you with these legal speculations but if I have demonstrated that the law can and will treat these sad and difficult cases as sensitively and sympathetically as possible, I shall not apologise. REFERENCES 1 Corbett v. Corbett (otherwise Ashley), 1971 Probate Division, p. 83. 2 S.Y. v. S.Y. (otherwise W), 1963 Probate Division, p. 37.
