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Postadres: De Boelelaan 1 105, 1081 HV Amsterdam

 Henri Brandman & Co


43 Queen Anne Street


vrije Universiteit amsterdam

Dear Mr Brandman,

With this letter I like to comment briefly to a document submitted by the UK Government which was sent to me by mrs Rachel Horsham.

First: I don’t know what the UK Government is trying "to prove" with her reference to parts of my General Report presented at the Colloquy on Transsexualism, medicine and the law (the same applies for the other parts the UK Government is bringing to the attention of the Commission).

Second: the indicated paragraphs are merely a summary of the opinions existing at the time I prepared the report i.e. three years ago. If I had to write a similar report now, it would reflect findings of research by Prof. Gooren and others (see his letter to you dated December 18, 1995).

Third: if the UK Government is - by refering to the indicated paragraphs - arguing that nothing has changed since the Cossey Case (1989) or the case B v. France (1990), she is wrong. Recent research provides us with important new information and makes transsexualism better understandable.

Fourth: the European Court said (Cossey Case § 35) that she might depart from earlier decisions if that is warranted in order to ensure that the interpretation of the Convention reflects societal changes and remains in line with present-day conditions. I think that it cannot be said "that there still remains some uncertainty as to the essential nature of transsexualism" (see European Court in B. v. France § 48). At least what is left in terms of uncertainty does not go beyond the uncertainty that is a normal part of human nature. The Commission should take into account recent findings as presented by Prof. Gooren and concluede that a transsexual has the right to have her/his birth certificate adjusted to her/his true gender identity.

Finally: I think that mrs Horsham has presented enough evidence to show that changing her birth certificate does not require that the UK alters "the very basis of its system for registrations of births" (see European Court in the Cossey Case § 38 under a.).

I hope these comments are helpful. At least I want to make clear that the UK Government, apparently willing to use part of my General Report to support her position, is using information which is not longer up to date.

Yours sincerely,


Prof. Jaap E. Doek

c. 33 Criminal Justice and Public Order Act 1994


1964 c. 48. (7) Any expression used in the Police Act 1964, the Police (Scotland)

1967 c. 77• Act 1967 or the Police Act (Northern Ireland) 1970 and this section in its

1970 c. 9 (N.I.). application to England and Wales, Scotland and Northern Ireland respectively has the same meaning in this section as in that Act.

(8) In this section "constable of a police force", in relation to Northern Ireland, means a member of the Royal Ulster Constabulary or the Royal Ulster Constabulary Reserve.



SEXUAL Offences


Rape of women 142. For section 1 of the Sexual Offences Act 1956 (rape of a woman) and men. there shall be substituted the following section—

1956 c. 69. "Rape of 1 .—(1) It is an offence for a man to rape a woman or

woman or man. another man.

(2) A man commits rape if—

(a) he has sexual intercourse with a person (whether vaginal or anal) who at the time of the intercourse does not consent to it; and

(b) at the time he knows that the person does not consent to the intercourse or is reckless as to whether that person consents to it.

(3) A man also commits rape if he induces a married woman to have sexual intercourse with him by impersonating her husband.

(4) Subsection (2) applies for the purpose of any enactment.".



Male rape and buggery

Male rape and 143.—(1) Section 12 of the Sexual Offences Act 1956 (offence of buggery. buggery) shall be amended as follows.

(2) In subsection (1), after the words "another person" there shall be inserted the words "otherwise than in the circumstances described in subsection (1A) below".

(3) After subsection (1), there shall be inserted the following subsections— "(1A) The circumstances referred to in subsection (1) are that the act of buggery takes place in private and both parties have attained the age of eighteen.

(1B) An act of buggery by one man with another shall not be treated as taking place in private if it takes place— (a) when more than two persons take part or are present; or

(b) in a lavatory to which the public have or are permitted to have access, whether on payment or otherwise.


‘Green Form Fraud

I have read with interest the article in NLJ October 19, p1399, referring to Green Form fraud and the Solicitors Complaints Bureau. The third paragraph in the article refers to examples of fraud, citing the case of non-legal work being carried out misrepresented and the example given is "Housing". So far as I am aware, Housing is in fact a franchised category of work and is referred to at section D on the first box on the reverse side of the Legal Aid form. Could you please clarify this reference in the article, which I find to be confusing?

Derek Kenningham

Kenningham Underwood Armstrong


Applause for Mr James Kingston (N L J letters, November 11, 1994) commenting on an article by Martin Morgan-Taylor and Fhilip Romney (NLJ Oct 8, p 590), which I had not previously read.

He clearly recognises that the difficulties in the way of post-operative male to female transsexuals will still exist under the provisions of the new Bill. The niceties of the subject of rape are discussed in the article, but the ugliness of it in practice is shown up by Mr Kingston’s letter.

A male intent on rape of a female will presumably judge her by her outward appearance and his onslaught will be at the place where he expects it to be. Medical evidence shows that he will not know the difference and only if he is apprehended and medical evidence produced, interpreted according to this law, will he know his luck. The victim has not been raped simply because the law says that she is a male. If he had been an attacker of a perverse kind with the same victim and had sought his satisfaction in a way preferable, then under the new law he could be convicted of rape because he would be having anal intercourse with a man. Will he have long-lasting feelings of revulsion at having unintentionally committed a homosexual offence when he has always been "into vaginas" and "cock of the Sergeants Mess"? Will they match those of his victim, whose final humiliation under the law has been physically visited on her? May I be permitted in your respected columns to use a term variously used as adjective, adverb and even participle, if only because in this context it is not a meaningless qualification, nor confused. If you give that permission, then I say (in outline) this is f g nonsense.

This clause must be amended, but more, in the light of present medical knowledge, the corpse of Corbett and Corbett must be buried by judges or by statute and without ceremony, and that quickly.

Terrence Walton


London WC1

The article on rape by Martin Morgan-Taylor and Philip Romney (NM, October 28) was well-argued, thoughtful and stimulating; but it was marred, for me at least, by the authors’ persistent use of the word "gender" when referring to the sex of human beings.

This is an egregious solecism: people are distinguished by sex. They do not have gender, which is an attribute of words, not of people—or, for that matter, of any animal. Yet these days one sees it everywhere.

I suspect that it results from some kind of desire to be politically correct; but I should like to know why the word "gender" is in any way preferable to plain old "sex". It doesn’t seem to me to avoid any kind of unpleasantness or awkwardness: the word "sex" is neutral and free of any connotations of sexism, condescension or any other form of political incorrectness that I can think of. So why deprive people of an attribute I that properly applies to them in favour of one that does not? Perhaps the authors of the

otherwise excellent piece to which I have referred can enlighten me or perhaps someone else, better versed than I am in current notions of political correctness, can suggest an answer.

Mike Seabrook

La Ferme du Laurier


Dishonest solicitors

As an avid reader of NM and one totally in awe of the legal profession, it is fascinating for a layman to receive the lawyer’s-eye-view of the problems which are currently being expressed in writing and on television.

The topics which immediately spring to mind are to be found in the opposition to fusion which is to be heard from both sides of the proverbial fence, the perceived discrimination against black lawyers, unrelenting criticism of the Lord Chancellor, franchising, legal aid, selection of the judiciary, the plight of sole practitioners and the Law Society itself, to name but a few.

Although I have my own views on all of these subjects, my reason for writing concerns the article "Good news" by Mr Martin Mears (October 28, p1489). In the last few months Mr Mears appears to have become the "angry young man" of the profession; I do not use the epithet in a critical sense, having been there myself. His articles are compulsive reading for the likes of me and no doubt some of his colleagues. I would suggest nevertheless that the public needs to be aware of the facts about dishonest solicitors although it seems that some members of that august body of lawyers are not keen to have them brought to our notice. Even Daily Telegraph readers are able to ascertain that the vast majority are above board in their dealings with clients. Surely the SCB has the mandate to tell us about the aberrant minority; is it not part of its raison d’être? It may not help companies such as mine to choose between firms of

solicitors but it teaches us to be wary in making the choice.

In conclusion I would add that our own firm of solicitors in Manchester (Dunderdale & Wignall) are approachable, forthright, helpful and able to talk to and advise us in the most pleasant manner to which we can fully reciprocate. In short, they treat us as equals, which in my humble opinion we can never be!

CE Cooper

SKElectronjcs Ltd


Legal Aid for the wealthy

Before 1948 public assistance was administered by local authorities. The Relieving Officer would expect an applicant to prove to his satisfaction that there were no resources that could be called upon; surely the same attitude should apply to applicants for legal aid.

Applicants should be required to make personal application, and submit to a detailed examination. If the official was of the opinion that the applicant was living in the lap of luxury he should then put the onus on to him to prove that there were no resources that could be diverted to his legal costs—or to put it another way, if he wants to defend an action, why cannot he use the money being spent on his lifestyle before calling upon public funds? It is quite obvious that the high-profile, wealthy, yet on paper needy applicants whose names we all know— and who are far sharper than the rest of us or they would not be so well-heeled—have learned how to work the system, ably assisted by the lawyers who will live off the proceeds. We need not be too concerned about those applicants suffering injustices—people like that can well look after themselves, and the public would not grudge providing a larger fund if they knew it would be used for the really needy.

1W Brien


more letters on p1619

The Law


(LAW COM. No. 33)





  Laid before Parliament by the Lord High Chancellor p ursuant to section 3(2) of the Law Commissions Act 1965


  Ordered by The House of Commons to be printed 3rd December 1970




Paragraphs Page

INTRODUCTION . . . . 1-10 1




VOID? . . . . . 11—15 4







DIVORCE? . . . . . 21—28 10



GROUNDS OF NULLITY? . . . 29-35 15

Parties of the same sex. . . . 30—32 15

Sterility . . . . . . 33—34 16



TO NULLITY? . . . . . 36-45 17

Collusion . . . . . 37—38 17

Approbation . . . . . 39—44 18 PART VI


Void Marriages

(a) Invalid ceremony . . . 47 21

(b) Non-age . . . . . 48 22

(c) Prohibited degrees . . . 49—54 22

(d) Prior existing marriage . . . 55 25

Voidable Marriages

(e) Impotence . . . . 56 25

(f) Wilful refusal to consummate . . 57 25

(g) Lack of consent . . . . 58—68 26

unsoundness of mind . . 59—60 26

mistake or duress . . . 61—68 26

(h) Mental disorder or epilepsy . . 69—74 30

(i) Venereal disease . . . 75 32

(j) Pregnancy by another . . . 75 32

Additional conditions on annulment of

certain voidable marriages . . . 76—86 32


(d) A petition for divorce may not be presented until three years have elapsed from the date of marriage unless the court gives leave to present an earlier petition on the ground of exceptional hardship suffered by the petitioner or of exceptional depravity on the part of the respondent: see Matrimonial Causes Act 1965, section 2. The need to wait three years before being able to start proceedings to terminate the marriage would be a substantial hardship on a man or woman whose partner is unable or unwilling to consummate the marriage, and a special exception would need to be made for this ground of divorce.

28. We, therefore, recommend that:

(a) the class of voidable marriages should be retained, and

(b)wilful refusal to consummate a marriage should continue to be a ground for nullity.



29. In Working Paper No. 20 we examined seven possible additional grounds of nullity, three already examined and rejected by the Morton Commission and four which we ourselves put forward as worthy of consideration although we did not advocate them. As a result of our consultations ie are satisfied that there are only two possible additional grounds which

need to be discussed.

Parties of the same sex

30. The first additional ground might be that a marriage could be annulled as a void marriage if the parties are proved to be of the same sex. Two decisions55 have in fact held that this is already a ground for nullity. In Working Paper No. 20 we did not canvass views on this point, since we had taken the view that such a "marriage" could not be regarded as the "union of one man and one woman" and therefore as a marriage over which the courts have jurisdiction.56 Notwithstanding the first of the two decisions to which we have referred, it seemed clear to us that the sole remedy of the parties if there was any doubt about the sex of the parties and therefore on whether there was a marriage should be to obtain a declaration as to status under R.S.C. Ord. 15 r. 16. There is, however, now a second decision by the same judge to the effect that the appropriate relief is a decree of nullity and not a declaration under Ord. 15 r. 16.

31. The importance of the distinction between the two forms of relief is simply that the types of financial relief available in cases where a marriage is dissolved or annulled are not available on the grant of a declaration.57

Talbot v. Talbot (1967) 111 Sol. J. 213 (two women); Corbett v. Corbelt [197012 W.L.R. 1306 (two men).

66 Hyde V. Hyde (1866) L.R. 1 P. & D. 130.

There was also a difference as regards costs; in the Corbett case the "wife" had obtained security for costs, see Corbeit v. Corbeit (No. 2) [1970] 3 W.L.R. 195. But in our Report on Financial Provision in Matrimonial Proceedings (Law Corn. No. 25) we recommended that the special rule regarding security for costs in matrimonial causes should be abolished (see para. 107 of the Report) and this recommendation has now been implemented by the Matrimonial Causes (Amendment No. 2) Rules 1970.


Under the present law this is of minor importance since most forms of financial relief are available only to a wife against the husband and it is difficult to see how they could be applied to a situation in which, cx hypothesi, both are "husbands" or both "wives". It will, however, become of greater importance after 1 January 1971 when the Matrimonial Proceedings and Property Act 1970 comes into operation and wider powers to grant financial provision in favour of either party are introduced.

32. We have not thought it necessary to postpone the submission of this Report until we could undertake a further round of consultation on whether this ground of nullity should be retained. The situation is one which, happily, will arise only very rarely. And the question involved is an issue of social policy on which Parliament will be the judge. In the draft Bill in Appendix A to this Report we have not included it as a ground for nullity since, on the whole, it is our personal view that matrimonial relief, with the possibility of granting financial provision, is not appropriate. In most cases the parties will have entered into the union with full knowledge. If there is a genuine mistake as to sex it is likely to be discovered immediately after the ceremony and the union will then either break up, thus restoring the parties to their former positions with minimal financial hardship to either, or will continue as a homosexual relationship. Unless financial relief is to be extended from marriages to homosexual unions (as indeed one of our correspondents advocated) we can see little reason why it should be available merely because the parties have succeeded in deceiving someone into celebrating the marriage in the belief that they are of opposite sexes. If one of the parties has wilfully deceived the other as to his or her sex and the other has suffered loss in consequence, the other will be able to recover damages in an action for deceit. We appreciate, however, that there may be the rare case in which one party has some of the sexual characteristics of both male and female and in which there may be a genuine doubt which characteristics predominate or, indeed, in which one party believed at the time of the marriage that he or she was of the opposite sex. It may be thought that in these tragió cases the court should be empowered to grant the normal range of financial provision and that the courts can be relied upon to distinguish cases of this sort, where such relief is appropriate, from those in which it is not. If this view is taken by Parliament clause I of the draft Bill appended to this Report will require amendment.


33. The second possible additional ground, on which a marriage might be made voidable, relates to sterility. Among a number of proposals made to us, was the suggestion that non-disclosure of sterility caused by surgical or other treatment should be such a ground. The main argument in support of it may be summarised as follows:

Without entering into the merits or demerits of the rule now apparently established in English law5° that procreation of children is not a principal end of marriage, the factual situation is that to most people that purpose is one of the principal or fundamental ends of marriage; there will be

58 Baxter v. Baxter [1948] A.C. 274; see this aspect of this decision criticised in the Church Report, p. 34, where it is pointed out that the court never reviewed a wealth of

previous judicial authority to the contrary.


 party. On the other hand, if the failure to consummate was due to wilful refusal, the aggrieved party could leave and allege that the other’s behaviour was such that the aggrieved party could not reasonably be expected to live with him. In the result, if after the three years the aggrieved party left because the marriage had not been consummated but did not know whether the non-consummation was due to impotence or wilful refusal, he or she would be guilty of a matrimonial offence if the court found impotence to be the cause of non-consummation, but would be blameless if the court found the cause to be wilful refusal to consummate.

85. The same considerations do not apply, however, to applying the three-year time-limit to the ground of lack of consent. In our view, a view shared by a substantial majority of those we consulted, it should not be possible to avoid a marriage on this ground unless proceedings are brought within three years. The case for this is strongest when the absence of consent is due to mistake or duress. A party to such a marriage should decide as soon as possible whether to avoid it or to accept it as a valid marriage, and three years is more than sufficient in which to make such a decision. Where the absence of consent is due to unsoundness of mind it could be argued that it would be unfair to impose the time-limit since there might not be a recovery within the three years. We think, however, that even then there would be no serious

risk of hardship since proceedings could be taken on the patient’s behalf38 within three years. Moreover, if a time-limit is imposed, as it already is, on proceedings to annul a marriage on the ground of mental disorder of a type unfitting for marriage, we think that there are obvious advantages in applying the same rule to unsoundness of mind which happens to deprive the party of his ability to consent. Many of the practical advantages of the rationalisation that we are striving to achieve would be destroyed if the time-limit, while applied to other forms of absence of consent and to other forms of insanity, did not apply to this.

86. We accordingly recommend that marriages voidable on the ground of lack of consent, mental disorder, venereal disease or pregnancy should not be avoided unless proceedings are instituted within three years of the marriage and that in the case of venereal disease or pregnancy it should also be necessary to establish that the petitioner at the time of the marriage was ignorant of the facts in question. We do not recommend that either rule should apply in the case of impotence or wilful refusal to consummate.


Parties to a Nullity Suit—Void Marriages

87. In the case of a void marriage, in addition to the spouses themselves, anyone with a sufficient interest in obtaining a declaration of nullit.y may petition; a slight pecuniary interest is sufficient39 and anyone whose title to property would be affected, or on whom a legal liability might be cast by the

38 Mental Health Act 1959, ss. 102, 103.

38 Faremouth v. Watson (1811) 1 Phil. 355.

36 natural result of the marriage—the birth of issue—has a right to contest its validity.40 In view of the fact that the nature of the pecuniary interest needed to give the petitioner the right to sue may be insignificant,41 it is perhaps surprising that a relative’s hope of inheriting on an intestacy, which could be defeated by a valid marriage, is apparently not a sufficient interest entitling the relative to contest the marriage during the spouse’s lifetime.42 But after the spouse’s death the relative has such an interest if his right of succession is affected by the validity of the marriage.43

88. We have considered whether it would be possible to amend the law so as to exclude persons with insignificant interests from being able to petition. But it is difficult to see where the line could be drawn44 and we think that the law should remain unaltered in this respect.

89. The respondent to the suit is the other spouse, or if the Suit is brought by a third party45 both spouses are respondents; in addition, any person may be given leave to intervene in the suit.46 We have considered whether this position should be changed so that children of the union would have to be made parties. A decree declaring a marriage to be void affects the children of the spouses since they may be bastardised and perhaps lose rights of property47 as a result of a finding that a marriage is void;48 yet children are not given any notice of the proceedings and may not even know that proceedings are on foot. The children of a void marriage are legitimate if at the time of the act of intercourse resulting in the birth (or at the time of the marriage if later) one spouse or both reasonably believed that the marriage was valid.49 Therefore, the issues determining whether a child is legitimate are:

First, is the marriage valid? And, second, if the marriage is void, did the spouse or spouses reasonably believe it to be valid at the relevant time? As to the first issue, a decree of nullity is a judgment in rem which is, therefore, conclusive on the children. As to the second issue, a finding that the spouse had or had not the requisite belief could be binding only between the parties to the proceedings, namely, the spouses. However, if the court finds that one spouse or both had the requisite belief,50 that would for practical purposes

40 Ray v. Sherwood (1837) 1 Moo. P.C. 353 at 399, 400.

41 Faremouth v. Watson, supra; Ray v. Sherwood (1836) 1 Curt. 193 at 227; (1837) 1 Moo.

P.C. 353 at 399, 400.

42 Ray v. Sherwood (1836) 1 Curt. 193 at 225; but the Privy Council expressly left the

point open: (1837) 1 Moo. P.C. 353 at 390; in J. v. J. [1953] P. 186, which was a niece’s petition, the point was not decided as the neice attempted to petition as the wife’s next

friend and not in her own right. -

Re Park [1954] P. 112, C.A.

"In some countries persons with a moral interest can also petition: e.g., in France:

the ascendants or the family council, the lawful spouse in the case of bigamy by the other spouse, the public prosecutor; in West Germany: the lawful spouse in the case of bigamy and the public prosecutor; in Switzerland: a public authority.

Wells v. Wells & Cottam (1863) 3 Sw. & Tr. 364.

"Matrimonial Causes Act 1965, s. 44.

47 This is less likely since the Family Law Reform Act 1969.

48 For an example of what can happen, see Plummer v. Plummer [1917] P. 163, C.A. where after a decree of nullity had been pronounced a guardian ad litem of the child of the marriage was appointed, the child was given leave to intervene for the purpose of appealing against the decree and the decree was rescinded on appeal.

"Legitimacy Act 1959, s. 2. A further prerequisite to legitimation is that the child’s father must be domiciled in England at the child’s birth, or, if the father died before birth, immediately before his death: ibid.

50See, for instance, Collelt v. Collett [1968] P.482 at 493 where the court made this finding.


go a long way towards, if not be conclusive as, a finding of legitimacy. Similarly, if the court made a finding, albeit obiter,51 that neither spouse had the requisite belief, such finding would presumably be a reflection of the evidence and would be a substantial obstacle to a subsequent legitimacy petition. But any such finding would be made on the basis of the spouses’ evidence untested by cross-examination on the question of legitimacy (or, if the petition was undefended, completely untested) and, possibly, in the absence of other relevant evidence. Moreover, if the children were of tender years at the time of the nullity suit and if after reaching their majority they found it advisable to initiate legitimacy proceedings, their parents might by then not be available to give evidence. All this suggests that there is a case for making children parties to the nullity proceedings.

90. But there are arguments to the contrary:

(a) It is only in isolated cases that it is in the child’s interest to be represented in the nullity suit and to put the parties (or the State, to the extent that the parties are legally aided) in every suit for nullity of a void marriage to the expense of adding the child as a party seems unnecessarily drastic. In the overwhelming majority of cases making the child a party would contribute nothing.

(b) Under the Matrimonial Causes Rule 108, the court may order that a child be separately represented; the court may then appoint the Official Solicitor or some other proper person to be the child’s guardian ad litern with authority to take part in the proceedings on the child’s behalf. This safeguard may be of particular importance in proceedings to annul a void marriage when the child’s legitimacy may be affected.

91. With one exception (who thought Rule 108 gave the child sufficient protection) all who sent comments on our Working Paper No. 20 were in favour of the child always being separately represented (as, indeed, we ourselves were52). Nevertheless, we have, on reconsideration, come to the conclusion that in view of the paucity of cases in which a child would be prejudiced through not being separately represented, and in view of the court’s power to order separate representation when appropriate, a provision that a child should be automatically made a party to every suit for nullity of a void marriage is unnecessary and we do not recommend it.

Parties to a Nullity Suit—Voidable Marriages

92. In the case of impotence no one other than one of the spouses is allowed to petition.53 The general belief is that the same applies in the case of grounds other than impotence, and this view is supported by obiter dicta in the House

51 It is difficult to see how it could be anything more, since legitimacy is not an issue in a nullity suit and a custody order can be made whether or not the children are legitimate.

52 Working Paper No. 20, para. 67.

A. v. B. (1868) L.R. I P. & D. 559; Inverclyde v. Inverc!yde [1931] P. 29, 41; Harthan v. Hart/ian [19491 P. 115, 132.


for divorce or judicial separation, this is impossible in the case of nullity which, as the foregoing discussion will have shown, is based partly on provisions in the Marriage Act 1949 and the Matrimonial Causes Act 1965 and partly on judge-made law. We accordingly recommend that as a step towards the complete codification of Family Law, which is our ultimate objective, the opportunity should be taken to state comprehensively when a nullity decree can be obtained. This is done in the Draft Bill in Appendix A.


96. Our recommendations can be summarised as follows:

(a) The law relating to nullity should be incorporated in a comprehensive statute setting out the grounds on which a marriage governed by English law is—

(i) void,

or (ii) voidable

and the bars to a petition: paragraph 95; see draft Bill in Appendix A.


(b) The substance of the law should remain unchanged except as provided in the following sub-paragraphs. In particular: a distinction should be maintained between void and voidable marriages (paragraph 4; see clauses 1 and 2 of the draft Bill);wilful refusal to consummate should continue to be a ground for nullity, not divorce (para

• graphs 26—28; see clause 2(1)(b) of the draft Bill); under-age

• marriages should continue to be void and not be voidable or ratifiable (paragraphs 16—20; see clause 1(a)(ii) of the draft Bill) and there should be no additional grounds of nullity such as sterility (paragraphs 29—35).

(c) Lack of consent, whether due to unsoundness of mind, duress, mistake or otherwise, should render a marriage voidable, not void:

paragraphs 11—15; see clause 2(l)(c) of the draft Bill.

(d) If it be the present law that a decree of nullity (as opposed to a declaration that there is no marriage) can be obtained if the parties prove to be of the same sex, we take the view that this should not be perpetuated as a ground for nullity: paragraphs 30—32; see clause 1 of the draft Bill which omits this ground.

(e) Mental disorder, whether continuous or intermittent, within the meaning of the Mental Health Act 1959 of such a kind and to such an extent as to render a party unfitted for marriage should be the only ground on which unsoundness of mind, not vitiating consent, should render a marriage voidable, and epilepsy should cease to be a ground of nullity: paragraphs 69—74 and clause 2(1)(d) of the draft Bill.

(f) Knowledge at the time of the marriage of the mental disorder should not in itself be a bar to nullity on this ground: paragraph 78; see clause 3(3) of the draft Bill which relates only to the grounds set out in clause 2(1)(e) and (f).



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ACKNOWLEDGEMENTS. M.J.L., S.K.-F.W. and A.B. are equivalent authors on the manuscript

This work was supported in part by grants from the NIH.



A sex difference in the human brain and its relation to


Jiang-Ning Zhou*, Michel A. Hofman*, Louis J. G. Goorent & Dick F. Swaab*1:

* Graduate School Neurosciences Amsterdam,

Netherlands Institute for Brain Research, Meibergdreef 33,

1105 AZ Amsterdam ZO, The Netherlands

+ Department of Endocrinology, Free University Hospital,

1007 MB Amsterdam, The Netherlands

TRANSSEXUALS have the strong feeling, often from childhood onwards, of having been born the wrong sex. The possible psycho.genic or biological aetiology of transsexuality has been the subject of debate for many years1,2. Here we show that the volume of the central subdivision of the bed nucleus of the stria terminalis (BSTc), a brain area that is essential for sexual behaviour34, is larger in men than in women. A female-sized BSTc was found in male-to-female transsexuals. The size of the BSTc was not influenced by sex hormones in adulthood and was independent of sexual orientation. Our study is the first to show a female brain structure in genetically male transsexuals and supports the hypothesis that gender identity develops as a result of an interaction between the developing brain and sex hormones56.

Investigation of the genetics, gonads, genitalia or hormone level of transsexuals has not, so far, produced any results that explain their status"2. In experimental animals, however, the same gonadal hormones that prenatally determine the morphology of the genitalia also influence the morphology and function of the brain in a sexually dimorphic fashion67. This led to the hypothesis that sexual differentiation of the brain in transsexuals might not have followed the line of sexual differentiation of the body as a whole. In the past few years, several anatomical differences in relation to sex and sexual orientation have been observed in the human hypothalamus (see ref. 6 for a review), but so far no neuroanatomical investigations have been made in relation to the expression of cross-gender identity (transsexuality).

To whom correspondence should be addressed.

HG. 1 Schematic frontal section through two subdivisions of the bed nucleus of the stria terminalis (BST). Ill, third ventricle; AC, anterior commissure; BSTc and BSTv, central and ventral subdivisions of the BST; FX, fornix; IC, internal capsule; LV, lateral ventricle; NBM, nucleus basalis of Meynert; OT, optic tract; PVN, paraventricular nucleus; SDN, exualIy dimorphic nucleus; SI upraoptic nuc!eus


We have studied the hypothalamus of six male-to-female transsexuals (T1—T6); this material was collected over the past eleven’ years. We searched for a brain structure that was sexually dimorphic but that was not influenced by sexual orientation, as male-to-female transsexuals may be ‘oriented’ to either sex with respect to sexual behaviour. Our earlier observations showed that the paraventricular nucleus (PVN), sexually dimorphic nucleus (SDN) and suprachiasmatic nucleus (SCN) did not meet these criteria (ref. 6 and unpublished data). Although there is no accepted animal model for gender-identity alteration, the bed nucleus of the stria terminalis (BST) turned out to be an appropriate candidate to study for the following reasons. First, it is known that the BST plays an essential part in rodent sexual behaviour34. Not only have oestrogen and androgen receptors been found in the BST8’9, it is also a major aromatization centre in the developing rat brain’0. The BST in the rat receives projections mainly from the amygdala and ?rovides a strong input in the preoptic—hypothalamic region" . Reciprocal connections between hypothalamus, BST and amygdala are also well documented in experimental animals’3 15 In addition, sex differences in the size and cell number of the BST have been described in rodents which are influenced by gonadal steroids in development’6 18 Also, in humans a particular caudal part of the BST (BNST-dspm) has been reported to be 2.5 times larger in men than. in women’9.

The localization of the BST is shown in Fig. 1. The central part of the BST (BSTc) is characterized by its somatostatin cells and yasoactive intestinal polypeptide (VIP) innervation20. We measured the volume of the BSTc on the basis of its VIP innervation (Fig. 2). The BSTc volume in heterosexual men (2.49 ± 0.16 mm3) was 44% larger than in heterosexual women (I .73 ± 0.13 mm3) (P<0.005) (Fig. 3). The volume of the BSTc of heterosexual and homosexual men did not differ in any statist-

 FIG. 2 Representative sections of the BSTc innervated by vasoactive intestinal polypeptide (VIP). a, Heterosexual man; b, heterosexual woman; c, homosexual man; d, male-to-female transsexual. Scale bar, 0.5 mm. LV, lateral ventricle. Note there are two parts of the BST in a and b: small medial subdivision (BSTm) and large oval-sized central subdivision (BSTc).

ically significant way (2.81 ± 0.20 mm3) (P=0.26). The BSTc was 62% larger in homosexual men than in heterosexual women (P<0.005). AIDS did not seem to influence the size of the BSTc:

the BSTc size of two heterosexual AIDS-infected women and three heterosexual AIDS-infected men remained well within the range of the corresponding reference group (Fig. 3). The AIDS-infected heterosexuals were therefore included in the corresponding reference group for statistical purposes. A small volume of the BSTc (1.30±0.23 mm3) was found in the male-to-female transsexuals (Fig. 3). Its size was only 52% of that found in the reference males (P<0.005) and 46% of the BSTc of homosexual males (P<0.005). Although the mean BSTc volume in the transsexuals was even smaller than that in the female group, the difference did not reach statistical significance (P0.13). The volume of the B5Tc was not related to age in any of the reference groups studied (P>0.l5), indicating that the observed small size of the BSTc in transsexuals was not due to the fact that they were, on average, 10 to 13 years older than the hetero- and homosexual men.


The BST plays an essential role in masculine sexual behaviour and in the regulation of gonadotrophin release, as shown by studies in the rat3.4.21. There has been no direct evidence that the BST has such a role in human sexual behaviour, but our demonstration of a sexually dimorphic pattern in the size of the human BSTc, which is in agreement with the previously described sex difference in a more caudal part of the human BST (BNST-dspm)’9, indicates that this nucleus may also be involved in human sexual or reproductive functions. It has been proposed that neurochemical sex differences in the rat BST may be due to effects of sex hormones on the brain during development and in adulthood2223. Our data from humans however, indicate that BSTc volume is not affected by varying sex hormone levels in adulthood. The BSTc volume of a 46-year-old woman, who had suffered for at least one year from a tumour of the adrenal cortex that produced very high blood levels of androstenedione and testosterone, was within the range of that of other women (Fig. 3; Sl). Furthermore, two postmenopausal women (aged over 70 years) showed a completely normal female-sized BSTc (Fig. 3;



at the high end of the normal male range. The BSTc size of the single transsexual who had not been orphidectomized (T4) ranged in the middle of the transsexual scores (Fig. 3). Not only were five of the transsexuals orchidectomized, they all used the antiandrogen compound cyproterone acetate (CPA). A CPA effect on the BSTc does not seem likely, because T6 had not taken CPA for the past 10 years, and T3 took no CPA during the 2 years before death and still had a female-sized BSTc.

In summary, our observations suggest that the small size of the BSTc in male-to-female transsexuals cannot be explained by differences in adult sex hormone levels, but is established during development by an organizing action of sex hormones, an idea supported by the fact that neonatal gonadectomy of male rats and androgenization of female rats induces signifIcant changes in the number of neurons of the BST and suppresses its sexual dimorphism.


Considered together with information from animals, then our study supports the hypothesis that gender identity alterations may develop as a result of an altered interaction between the development of the brain and sex hormones56. The direct action of genetic factors should also be considered on the basis of animal experiments24.

We found no relationship between BSTc size and the sexual orientation of transsexuals, that is, whether they were male-oriented (TI ,T6), female-oriented (T3,T2,T5) or both (T4). Furthermore, the size of the BSTc of heterosexual men and homosexual men did not differ, which reinforced the idea that the reduced BSTc size is independent of sexual orientation. In addition, there was no difference in BSTc size between early-onset (T2,T5,T6) and late-onset transsexuals (TI ,T3), indicating that the decreased size is related to the gender identity alteration per se rather than to the age at which it becomes apparent. Interestingly, the very small BSTc in transsexuals appears to be a very local brain difference. We failed to observe similar changes in three other hypothalamic nuclei, namely PVN, SDN or SCN in the same individuals (unpublished data). This might be due to the fact that these nuclei do not all develop at the same time, or to a difference between these nuclei and the BST with respect to the presence of sex hormone receptors or aromatase. We are now studying the distribution of sex hormone receptors and the aromatase activity in various hypothalamic nuclei in relation to sexual orientation and gender.