Bellinger v Bellinger [2003] UKHL 21

Facts

• Mrs Bellinger, a transgender woman assigned male at birth who underwent gender reassignment surgery, sought to marry her partner.
• The Registrar General refused to issue a marriage license, citing section 11(c) of the Matrimonial Causes Act 1973, which defined marriage as between a man and a woman based on birth sex.
• Mrs Bellinger's challenge was dismissed by both the original court and the Court of Appeal; she appealed to the House of Lords.
• The principal issue was whether 'male' and 'female' in section 11(c) could be interpreted, using section 3 of the Human Rights Act 1998 (HRA), to include post-transition gender, or whether a declaration of incompatibility should be issued under section 4 HRA.

Issues

1. Whether section 3 of the HRA 1998 authorized courts to interpret 'male' and 'female' in section 11(c) of the Matrimonial Causes Act 1973 to include individuals who had undergone gender reassignment.
2. If not, whether the statutory definition of marriage should be declared incompatible with Articles 8 and 12 of the European Convention on Human Rights (ECHR) under section 4 HRA.

Decision

• The House of Lords held that section 3 HRA 1998 could not be used to interpret 'male' and 'female' beyond their ordinary (birth sex) meaning in the Matrimonial Causes Act 1973, as such interpretation would represent a fundamental change, exceeding judicial function.
• The Lords declared the relevant part of the 1973 Act incompatible with Articles 8 and 12 ECHR, referencing Goodwin v United Kingdom (2002), as it failed to recognize gender reassignment for marriage purposes.
• A declaration of incompatibility under section 4 HRA was issued, drawing Parliament's attention to the inconsistency without altering the statute.
• The court noted this matter was suitable for legislative, not judicial, action and referenced ongoing government efforts to introduce remedial legislation.
• The Court distinguished this case from Ghaidan v Godin-Mendoza [2004] UKHL 30, highlighting the limits of interpretive powers in cases that would require a fundamental alteration to statutory concepts.

Legal Principles

• Under section 3 HRA 1998, courts must interpret legislation as compatible with ECHR rights so far as possible, but cannot fundamentally alter statutory concepts or rewrite legislation.
• Declarations of incompatibility under section 4 HRA serve to highlight legislative inconsistencies with ECHR rights, but do not invalidate the statute itself.
• The separation of powers restricts courts from enacting radical changes to established legal principles, reserving such changes for Parliament.
• The case illustrates judicial restraint in applying interpretive powers versus substantial policy change.

Conclusion

Bellinger v Bellinger [2003] UKHL 21 confirmed that the courts could not reinterpret statutory terms in a way that fundamentally altered traditional legal concepts such as marriage; a declaration of incompatibility under section 4 HRA was issued instead, prompting parliamentary reform to address transgender rights in UK law.