Dr April Ashley has Died
by Kenneth Norrie - Posted on 12 January 2022
One of the areas of public discourse that is becoming increasingly contentious, and with which toleration of (far less respect for) the differing views of others is becoming increasingly rare, is how the law (and society as a whole) should treat transgender people. It is, I hope, uncontentious to give thanks that we have moved far beyond the time when such people were almost universally shunned as freaks, their needs and lives dismissed with contempt and their very existence seen as a justification for violence against them. All the more, then, should we admire those from that era who stood up and fought to be allowed to live their lives as they chose.
27 December 2021 marked the passing of one such brave lady, Dr April Ashley. She had been born to a poor family in Liverpool in 1935, registered male and named George Jamieson.
George attended a rough school, where a camp manner and effeminate voice led to bullying and loneliness. As a teenager George ran off to sea, joining the Merchant Marine, an environment in which male-male sexual activity was by no means unacceptable – so long as each party denied any inherent attraction to the other. George refused to, or could not, pretend in this way, and as a consequence suffered physical and indeed sexual assault at the hands of the other sailors: there were suicide attempts and eventual “dishonourable” discharge. After some time working in a drag club, with money saved, George travelled to Casablanca at the age of 25 where surgical intervention allowed her to embrace a new identity, a new gender, and a new name: April Ashley. Though gender reassignment surgery would not become available in the UK for some years thereafter, April’s official documents in the UK were changed without any difficulty, to reflect her present gender, including her driving licence, NI number and passport.
As photographs from the time attest, April was a beautiful woman. She became a model, and joined the glamorous liberated set of the 1960s, being photographed by David Bailey for Vogue and gaining small parts in movie vehicles for celebrities. However, that burgeoning career was destroyed when the media (then as now more concerned with profit than compassion) “outed” her as transgender. Nevertheless, her personal life seemed to improve when she met a Scottish aristocrat, the Honourable George Corbett, of Rowallan Castle in Ayrshire, and married him, settling in Marbella (where Professor Norrie, incidentally, takes his winter breaks). The Hon George became the third Lord Rowallan in 1977, but April was not destined to be Lady Rowallan, for the marriage had broken down and brought to a legal end in 1970. Though April had sued the Hon George for divorce, it was no divorce decree that terminated their marriage.
The judge who heard the divorce application was Mr Justice Ormrod, who was (unusually) both medically and legally trained. He pointed out that for a court to grant a divorce there first had to be a valid marriage, and he held that the marriage between April and the Hon George was not valid since both parties were male. April’s gender reassignment may have changed her physical appearance but it did not change the legal reality: it did not make her a woman as the law understood that term. To reach that conclusion the judge had to ask, what exactly is a woman for the purpose of the law of marriage.
Perhaps surprisingly, the law provides no definition of “man”, “woman”, “male”, “female” or related terms – notwithstanding that the law (even more then than today) is very highly gendered. According to Ormrod J a woman for the purposes of marriage is someone who is “naturally capable of performing the essential role of a woman in marriage”, a somewhat circular definition which begs the further question, what is the essential role of a woman in marriage? Cooking, dusting, keeping a clean house for her lord and master? No: that would be too old-fashioned a view. Ormrod J held instead that the essential role of a woman in marriage was to perform “natural heterosexual intercourse” for the benefit of her husband. That marriage was seen as an essentially sexual relationship was no surprise, nor even its limitation to heterosexuality (same-sex marriage being then some decades away). But April (and, until it suited him, the Hon George) considered their sex life to be of a heterosexual nature. Thus the importance of that tendentious qualification invented by Ormrod J: “natural” heterosexual intercourse. April could not, the judge held, perform “naturally” because her female genitals had been artificially constructed by a surgeon in Casablanca. Her marriage was therefore invalid and she lost the chance to claim financial provision from her ex-husband’s estate (then available only on divorce).
The case of Corbett v Corbett (an English case, always assumed to reflect the law of Scotland too) remained the predominant authority for the legal impossibility of altering one’s gender in the United Kingdom until the Gender Recognition Act 2004, and it was applied far beyond the field of marriage. But notwithstanding the 2004 Act, the case retains some significance even today. It reminds us that the application of law is not a mechanical process driven by logic alone. It is dependent on social attitudes, and levels of judicial tolerance for situations and persons who do not conform to expectations or norms. Ormrod J is unable to keep his distaste for transgender people out of his judgment, and the choices he made in how to define a woman both reflected and influenced social policy at the time.
Indeed, the fundamental question raised in Corbett v Corbett is one that we continue to struggle with today, even although the law now both accommodates gender reassignment and seeks to prevent discrimination and hate crimes against transgender individuals. Corbett turned on a matter of definition – what was a “woman” for the purpose of marriage? We are asking the same question today, if in different contexts. What is a woman for the purpose of accessing a variety of women-only spaces? Can a person who is born with the physical characteristics of one gender ever “truly” be said to belong to the other when their chromosomes have not been changed? (It remains impossible to change a person’s chromosomal makeup, and so to use chromosomes as the definition has the effect of making “true” sex-change, literally, impossible.) Is it a hate crime to insist on the impossibility of truly changing gender, irrespective of what the law says? (The answer to that is no, according to the Court of Appeal in Miller v College of Policing [2021] EWCA (Civ) 1926, judgment handed down a mere week before April died).
After the court case, April fled the UK (the aristocracy looks after its own) and settled in California where she led a sort of Anna Madrigal existence. She returned to the UK in 2005, shortly after the Gender Recognition Act 2004 came into force, and she was embraced by the state and the establishment: she was awarded an MBE for services to Transgender Equality in 2012, and an honorary Doctorate from the University of Liverpool in 2016. A true lady, who didn’t need a castle or a husband to become one: but grit, determination and the sort of courage that leaves one breathless with admiration. She died, aged 86, at home in London on 27th December 2021. Her inspiration lives on.
Further Reading
I have just downloaded Zoë Playdon’s latest book The Hidden Case of Ewan Forbes (Bloomsbury Publishing, 2021), which explores the life of Sir Ewan Forbes, who had been born at Craigievar Castle in Aberdeenshire in 1912 and spent the first 40 years of his life as the Honourable Elizabeth Forbes-Sempill. Though registered as a girl, his external physical features were ambiguous and in 1952 he petitioned the sheriff court for an amendment to his birth certificate (the legislation, then as now, permitting changes if error comes to light), and on the granting of this amendment he changed his name to Ewan, and promptly married his housekeeper.
Some years later his elder brother, Lord Sempill, died without sons. (That Lord Sempill’s history during the Second World War is not one of unbridled patriotism, and he avoided prosecution for treason (the aristocracy looks after its own) by resigning from his job at the Admiralty after Pearl Harbour – his habit of sharing secret information with his Japanese counterparts had not stopped when the War broke out.) The peerage devolved to Lord Sempill’s eldest daughter, but the baronetcy had been held on a different settlement and could transmit only down the male line. The Hon Ewan was the next successor to the baronetcy, but this was challenged by a cousin on the basis that Ewan was, in fact and in law, female.
Lord Hunter in the Outer House was faced in 1967 with the same question that Ormrod J faced three years later in Corbett v Corbett, but in the context of a claim by a happily married man that he had always been male notwithstanding the misdiagnosis of his gender at birth. Lord Hunter adopted a “preponderance of elements” approach to the definition of gender, and held the Hon Ewan to be male – and therefore entitled to inherit the baronetcy. In common with the judge in Corbett, Lord Hunter felt obliged to explore the functionality of Ewan’s genitals. Ewan’s wife was put in the witness box to speak to this, though counsel were not allowed to ask her any questions. Lord Hunter, almost unbelievably, asked her whether her husband’s genitals “performed satisfactorily”. (She said yes.) Ability to perform sexually seems then to be at least part of the definition of male in Scotland, just as it was held to be the crucial element to the definition of female in England in Corbett.
The judgment of Lord Hunter has never been reported in any Law Reports, but there is some academic commentary on this perennially interesting case. I look forward to reading Playdon’s biography.
Kenneth McK. Norrie