Girls and Boys

Abstract

Transsexuality recently burst once more upon the legal scene when the European Court of Human Rights found UK law denying transsexuals a new `gender re-aligned' birth certificate to be in breach of their right to privacy. The topic of transsexuality has cropped up in various guises as a troublesome legal issue, both nationally and internationally, in the last thirty years or so. The primary trouble is that most legal systems are based around implicit assumptions as to sexual identity, which legal judgments on transsexual issues make explicit. The very making of judgments on questions such as ``what is a man or woman'' creates an ongoing paradox of uncertainty as to the answer, for if sexual identity has to be legally defined then what status does it have as a moral or natural phenomenon? Such paradoxes are often resolved by pointing to some proposed point of legal originality or revolution beyond which, it is claimed, there is no need to look. This article looks at the case of Corbett v Corbett, the founding case for law on transsexuality in the UK, which denied marriage rights to transsexuals because they were not of ``opposite biological sex'' and provoked the passage of the Marriage Act 1971, which maintained this wording as a restriction on who could marry. The article examines the formal construction of the judgment in this case, and how legitimacy was sought for an eventual pronouncement on sexual identity. It seeks, therefore, to lay bare the founding moment of law on transsexuality in the UK, in all its paradoxical self-concealing ignominity.