EDITORIAL: Permanently fixed at birth?

The current contretemps between the local LGBTQI (lesbian, gay, bisexual, transgender queer, and intersex) community and the lyrics of a composition from one of the participants in this year’s calypso competition raises an intriguing issue that, unsurprisingly, has not so far entered the national discourse, except perhaps obliquely in the context of the possibility of the legalisation of same-sex marriage. This is the question of whether a male at birth can ever become a female or vice versa, or whether an individual’s sex or gender is fixed for all time at his or her birth.

The calypsonian at the centre of the dispute, Billboard, has been taken to task over his assertion in the song, “Sex Change”, that “there is no such thing as being transgender as you cannot change your sex”.

We doubt that Billboard is aware, but his assertion echoes the more authoritative dictum of Mr Justice Ormrod, also a qualified physician, in the 1970 case of Corbett v Corbett in England. In that case, Arthur Corbett sought to have his marriage to April Ashley dissolved, principally on the ground that since Ms Ashley had been born male, she was to be treated as a male in perpetuity despite her change of sex, and the marriage was therefore illegal and void.

According to the judge, “Because marriage is essentially a union between a man and a woman, the relationship depended on sex and not on gender. The law should adopt the chromosomal, gonadal and genital tests. If all three are congruent that should determine a person’s sex for the purpose of marriage. Any operative intervention should be ignored. The biological sexual constitution of an adult is fixed at birth, at the latest, and cannot be changed either by the natural development of organs or by medical or surgical means….”

He thus declared the marriage void ab initio (inherently a nullity).

This use of biological criteria to determine sex was later approved by the Court of Appeal in R. v. Tan ([1983] and, indeed, given more general application; the court holding there that a person born male had been correctly convicted under a statute penalising men who live on the earnings of prostitution, notwithstanding the fact that the accused had undergone gender reassignment therapy.

Subsequently, however, in 2002, the European Court of Human Rights ruled in Christine Goodwin v the United Kingdom that under the European Human Rights Convention, a test of congruent biological factors can no longer be decisive in denying legal recognition to the change of gender of a post-operative transsexual. There are other important factors – the acceptance of the condition of gender identity disorder by the medical professions and health authorities within Contracting States, the provision of treatment, including surgery, to assimilate the individual as closely as possible to the gender in which they perceive that they properly belong and the assumption by the transsexual of the social role of the assigned gender.

This judgment spurred the enactment in the UK of the Gender Recognition Act 2004, a statute that enabled transsexuals to apply for a certificate showing the person had satisfied the criteria for legal recognition in the acquired gender.

Of course, none of these later legal developments is directly relevant to Barbados. In consequence, the earlier decision in Corbett should remain applicable as a matter of law and lend some support to Billboard’s assertion. Clearly, in light of later medical developments, some legislative reform may be needed in this context locally.