Bellinger v Bellinger [2003] UKHL 21 

Key point

  • This case spells out the scope of the interpretative obligation under section 3 of the Human Rights Act 1998: it does not require the courts to interpret the definition of ‘male’ and ‘female’ under section 11(c) of the Matrimonial Causes Act 1973 to include transgender persons

Facts

  • Mrs Bellinger, a transgender female, born male, was denied the right to marry on the ground that s.11(c) Matrimonial Causes Act 1973 stipulated that marriage was between a man and a woman
  • Mrs Bellinger applied for judicial review on the grounds that the refusal constituted a violation of article 1, the right to marriage, and article 8, the right to private life
  • The Court of Appeal dismissed the appeal
  • Mrs Bellinger appealed to the House of Lords, seeking a declaration that the marriage would be lawful as the expressions ‘male’ and ‘female’ under s11(c) could be interpreted to include transgender persons pursuant to s3 HRA 1998 or a declaration of incompatibility with article 12 under s4 HRA 1998

Held (House of Lords)

  • Appeal dismissed in part; the House of Lords’ made a s.4 declaration that s(11) Matrimonial Causes Act 1973 was incompatible with the ECHR

Lord Nicholls of Birkenhead

Application of s3 HRA

  • ‘Recognition of Mrs Bellinger as female for the purposes of section 11(c) of the Matrimonial Causes Act 1973 would necessitate giving the expressions ‘male’ and ‘female’ in that Act a novel, extended meaning: that a person may be born with one sex but later become, or become regarded as, a person of the opposite sex.’: [37]
  • Such an interpretation could not be adopted for several reasons: [38] – [49]
    • The House of Lords is not in a position to decide where the demarcation line between male and female could sensibly or reasonably be drawn: [43]
    • The recognition of gender reassignment has an effect on many different areas of law and thus should be dealt with by ‘a clear coherent policy’ rather than in a ‘piecemeal fashion’: [45]
    • It would involve a ‘fundamental change in the traditional concept of marriage…which ought to be considered as part of an overall review of the most appropriate way to deal with the difficulties confronting transsexual people’: [48]
    • Thus the change in law sought by Mrs Bellinger ‘must be a matter for deliberation and decision by Parliament when the forthcoming Bill is introduced’: [49]

Application of s4 HRA

  • ‘The question is whether non-recognition of gender reassignment for the purposes of marriage is compatible with articles 8 and 12. The answer to this question is clear: it is not compatible. The European Court of Human Rights so found in July 2002 in Goodwin, and the government has so accepted. What was held to be incompatible in July 2002 has not now, for the purposes of section 4, become compatible. The government’s announcement of forthcoming legislation has not had that effect, nor could it. That would make no sense.’: [53]
  • Although Parliament has already announced its intention to bring forward primary legislation on this subject, ‘when proceedings are already before the House, it is desirable that in a case of such sensitivity this House, as the court of final appeal in this country, should formally record that the present state of statute law is incompatible with the Convention’: [55]

Lord Hope of Craighead

  • The words “male” and “female” in s.11(c) of the 1973 act are not technical terms and must be given their ordinary, everyday meaning: [62]
  • No evidence was placed before us to suggest that in contemporary usage in this country, on whichever date one might wish to select: [62]
  • In any event, problems of great complexity would be involved if recognition were to be given to same sex marriages. They must be left to Parliament. I do not think that your Lordships can solve the problem judicially by means of the interpretative obligation in section 3(1) of the 1998 Act.’: [69]

Commentary

  • Bellinger significantly contrasts to Ghaidan v Godin-Mendoza [2004] UKHL 30 in the courts’ reluctance to overrule the clear, unambiguous language.
  • Ghaidan represents an extensive use of s.3 interpretation, whilst Bellinger represents a restrictive use.