The Times, Tuesday July 31 2001, http://www.thetimes.co.uk

By David Pannick QC, who is a practicing barrister and a Fellow of All Souls College, Oxford. Copyright 2001 Times Newspapers Ltd.

A man is not simply a penis and testicles, James Comyn, QC, told the High Court in 1969. He was representing April Ashley, a transsexual whose husband was seeking a court order that their marriage was a nullity on the ground that Ashley had been born a man. Mr Justice Ormrod decided in February 1970 that Ashley remained male for legal purposes, despite surgery and despite living socially and psychologically as a woman. Because she was still a man, she could not lawfully marry another man. Two weeks ago, the Court of Appeal recognised the need for reform.

Elizabeth Bellinger was born male in 1946. From as far back as she can remember, she has considered herself to be female. In 1981 she had gender reassignment surgery. That year she went through a ceremony of marriage with Michael Bellinger, who knew her background. They have since lived together as husband and wife. Mrs Bellinger sought a declaration from the court that the marriage was valid.

Because Mr Bellinger supported her application, the Attorney-General intervened, opposing the claim on the ground that because Mrs Bellinger had been born male, she could not validly marry a man. The Court of Appeal concluded, by 2-1, that the marriage was invalid. However, all three judges urged the Government to consider changing the law.

Mr Justice Ormond ruled in 1970 that English law identifies a person's sex by reference to chromosomes, gonadal factors (the presence or absence of testes or ovaries) and genitals (including internal sex organs). The fundamental defect in our law is that it ignores psychological and social aspects of sexual identity. As Jan Morris wrote in her 1974 autobiographical account, Conundrum, sexual identity is not a matter of glands, and transsexualism is not a sexual mode or preference. It is a passionate, lifelong, ineradicable conviction.

An individual feels the most compelling psychological need to be, and to be recognised as, female. The medical profession recognises this need as a psychiatric condition necessitating painful operations, often provided through the NHS.

Society accepts the individual in the new social role. But the law obstinately refuses to recognise the reality of the transformation. The legal reluctance to accept the new sexual status of a transsexual has become unsustainable in the context of human dignity, freedom and autonomy.

In 1990 Caroline Cossey, a transsexual who had a successful career as an actress and model (including a role in a James Bond film), sought a ruling from the European Court of Human Rights that United Kingdom law should recognise her as a woman entitled to marry a man. She lost. The Mirror printed a glamour picture of her under the headline "Official: this is a feller."

Judge Martens, in his dissenting judgment, pointed out that the transsexual is simply seeking to "shape himself and his fate in the way that he deems best fits his personality." In doing so, "he goes through long, dangerous and painful medical treatment." After those ordeals, the transsexual simply asks "to be recognised and to be treated by the law as a member of the sex he has won" and to be accorded the same rights as other persons of that sex.

Judge Martens rightly concluded that the law should refuse such a request "only if it truly has compelling reasons" for such a rejection can only be described as "cruel".

The European Court looked again at transsexuals' rights in Sheffield and Horsham v United Kingdom in 1998. Although rejecting the claims, the court strongly criticised the United Kingdom for taking no steps to "keep the need for appropriate legal measures in this area under review having regard in particular to scientific and societal developments."

In the Bellinger case, all three Court of Appeal judges accepted there was a "momentum for change" in legal attitudes towards the status of transsexuals.

They recognised "the profoundly unsatisfactory nature of the present position" and expressed their "dismay" at the failure of the Government to produce even a consultation paper on changes to the law.

The disagreement within the Court of Appeal concerned whether the judges could change the law.

Dame Elizabeth Butler-Sloss and Lord Justice Robert Walker thought this was a matter for Parliament. Lord Justice Thorpe, dissenting, considered that, as in New Zealand, judges should act to protect dignity and prevent injustice when politicians have abdicated their responsibility.

All three judges in the Court of Appeal encouraged the Government and Parliament to act. In the context of the rights of transsexuals, the law should now reject Freud's assertion that "anatomy is destiny."