(Rules of Court, App. 18.) COURT OF SESSION, SCOTLAND
PETITION
OF
(FIRST) JOHN ALEXANDER CUMNOCK FORBES-SEMPILL
AND
(SECOND) THE HONOURABLE EWAN FORBES-SEMPILL
FOR
DETERMINATION OF A QUESTION UNDER SECTION 10 OF THE ADMINISTRATION OF JUSTICE (SCOTLAND) ACT, 1933
1967
Tods, Murray & Jamieson, W. S.,
Solicitors for first named petitioner.
Haldanes & McLaren, W. S., second named
Solicitors for/Petitioner.
(Rules of Court App. 19.)
COURT OF SESSION, SCOTLAND
Unto the Right Honourable
LORDS OF COUNCIL AND SESSION
PETITION
of
(First) JOHN ALEXANDER CUMNOCK FORBES-SEMPILL
residing at 3 Mallard Street, Chelsea, London, and
(Second) THE HONOURABLE EWAN FORBES-SEMPILL,
residing at Brux Lodge, Alford, Aberdeen for Determination of a Question under Section 10
of the Administration of Justice (Scotland Act
1933).
Humbly Sheweth,
1. That the Right Honourable William Forbes-Sempill, 17th Baron Sempill and 8th Baronet of the Baronetcy of Forbes of Craigievar died on the 21st July 1905. He had five sons, three of whom died unmarried without issue. His eldest son was the Right Honourable John Forbes-Sempill, 18th Baron Sempill and 9th Baronet, who died on the 28th February 1934. He had four children, the Right Honourable William Francis Forbes-Sempill 19th Baron Sempill and 10th Baronet (hereinafter referred to as Lord Sempill), the Honourable Gwendoline Forbes-Sempill and the Honourable Margaret Forbes-Sempill, who are both now dead, and the second petitioner Lord Sempill died on the 30th December 1965, survived by female children only and never having had male children. The youngest son of the said 17th Baron Sempill and 8th Baronet was Rear Admiral the Honourable Arthur Lionel Ochoncar Forbes_Sempill who died on 9th May 1962, survived inter alios by his only son, the first petitioner.
2. That on Lord Sempill's death his eldest daughter succeeds to the barony of Sempill descends on a destination which admits females to the succession. The said baronetcy of Forbes of Craigievar descends on a destination to heirs male. Failing heirs male in the line of succession to Lord Sempill, the first petitioner would be entitled as heir male of the original grantee and of Lord Sempill to succeed to said baronetcy. The second petitioner is nearer in line of succession.
3. That the second petitioner was born on the 6th September 1912 at Fintray House, Fintray. On the 22nd September 1912 the second petitioner's father registered said birth as female and 2. with the name of Elizabeth Forbes-Sempill. In about 1952 the second petitioner craved the Sheriff of Aberdeen, Kincardine and Banff at Aberdeen to grant warrant in terms of Section 63 of the Registration of Births Deaths and Marriages (Scotland) Act 1854 to the Registrar for the District of Fintray in the County of Aberdeen to make an entry in the Register of Corrected Entries relative to Entry No. 9 in the Register Book of Births for the said District for the year 1912, which related to the birth of the second petitioner, substituting the Christian name "Ewan" for the Christian name "Elizabeth", and the sex of the letter "M" for the sex letter "F". The said application proceeded upon the narrative that from birth the second petitioner was brought up as a female but had been found on medical examination to be male. On 21st August 1952 the Sheriff-Substitute pronounced an interlocutor in the following terms:- "Aberdeen 21st August 1952. The Sheriff-Substitute having examined upon Oath the Petitioner E. Forbes-Sempill and considered the foregoing application and Medical Certificates produced in support thereof from (1) Dr. John C. Reid (2) Dr G.C. Manson, and (3) Dr James F. Philip finds the said Petitioner is of the male sex and that Entry No. 9 in the Register Book of Births for the District of Fintray in the County of Aberdeen for the year 1912 is erroneous. Grants Warrant to the Registrar of said District to make an Entry in his Register of Corrected Entries relative to said Entry No. 9 substituting the Christian name "Ewan" for the Christian name "Elizabeth" in the First Column and the letter "M" for the letter "F" in the Third Column of the said Entry and also insert a reference in the margin of the said Entry.
A.J. Loutitt Laing".
4. That on the death of Lord Sempill both petitioners lodged claims with the Secretary of State for the Home Department to succeed to Lord Sempill's said baronetcy. The second petitioner's claim has now been withdrawn. The Secretary of State has indicated that he is not prepared to enter the first petitioner's name on the Register of the Baronetage in the present circumstances. He has however further indicated that, in event of the Court pronouncing an interlocuture under Section 10 of the Administration of Justice (Scotland) Act 1933 finding that the first petitioner is the heir male of Lord Sempill, he will enter his name on the said Register.
5. That after the death of Lord Sempill the first petitioner raised an action against the second petitioner and others concluding inter alia for reduction of the said Interlocutor dated 21st August 1952, and for the declarator that he is heir male of Lord Sempill. The summons in said action was signeted and served, but by agreement between the petitioners has not been lodged for calling.
6. That thereafter by agreement between the petitioner's and upon joint instructions of their agents the second petitioner underwent medical examination on the 26th November 1966 by Professor J.A. Strong accompanied by Dr. W.H. Price. At said time certain smears, blood samples and skin scrapings were 3. taken from the second petitioner and examined by Dr. P.A. Jacobs. Report of said examinations and opinions there on will be produced and are referred to for their terms.
7. The first petitioner under reference to said reports and the facts narrated above maintains that the second petitioner is now and has all along been of the female sex in the physical, anatomical, physiological and genetic meanings of that term. He therefore maintains that the second petitioner is female and that the first petitioner in the circumstances above is therefore heir male of Lord Sempill and as such entitled to succeed to the baronetcy of Forbes of Craigievar in succession to Lord Sempill.
8. The second petitioner contends that the second petitioner is now and has all along been of the male sex in respect that he is a hermaphrodite with male characteristics and that the first petitioner is the heir male of neither the original grantee nor Lord Sempill and that accordingly the first petitioner is not entitled to succeed to the said baronetcy.
9. In the foregoing circumstances the petitioners desire a decision upon the following question:-
Is the first petitioner the heir male of Lord Sempill?
10. This Petition is presented under the terms of Section 10 of the Administration of Justice (Scotland) Act 1933 and Rule 231 of the Rules of Court.
MAY IT THEREFORE please your Lordships
to refer the question set forth
herein to the determination of Lord
Hunter, Ordinary.
IN RESPECT WHEREOF
Signed. John Murray
A. Malcolm Morrison.
COURT OF SESSION, SCOTLAND.
LORD HUNTER.
REPORT ON PROCEEDINGS
in
SUMMARY TRIAL
in Petition
JOHN ALEXANDER CUMNOCK FORBES-SEMPILL,
First Petitioner.
and
THE HONOURABLE EWAN FORBES-SEMPILL,
Second Petitioner.
on
MONDAY, TUESDAY, WEDNESDAY AND THURSDAY,
15th, 16th, 17th, and 18th MAY, 1967.
For the First Petitioner. Mr. W.R. Grieve, Q.C. and Mr.J. Murray.
For the Second Petitioner. Mr. C.E. Jauncey, Q.C. and Mr. M.A. Morrison.
INDEX
Proof for the First Petitioner. Page
Prof; J. A. Strong
Examined 1
Cross-Examined 13
Re-Examined 27
P. A. Jacobs
Examined 34
Cross-Examined 38
Re-Examined 45
Dr. W. H. Price
Examined 46
Cross-Examined 48
(No Re-Examination)
Dr. N. McLean
Examined 49
Cross-Examined 51
Re-Examined 53
J. A. C. Cumnock Forbes-Sempill
Examined 55
Cross-Examined 55
Dr. A. L. Stalker
Examined 57
Cross-Examined 61
Re-Examined 63
Further Examined 64
Dr. A. A. Shivas
Examined 66
Cross-Examined 68
Re-Examined 69
Further Examined 70
Dr. W.G.C. Manson
Examined 71
Cross-Examined 74
Re-Examined 78
Rev; D. Reid
Examined 79
Cross-Examined 80
Re-Examined 81
Baird. Matthews
Examined 82
Cross-Examined 83
Joan May Wright
Examined 87
Cross-Examined 91
INDEX
Proof for the First Petitioner. Page
Mrs Cordiner
Examined 97
Cross-Examined 100
Dr. A.I.I. Klopper
Examined 105
Cross-Examined 109
Re-Examined 111
Dr. C. J. Dewhurst
Examined 113
Cross-Examined 129
Re-Examined 152
Prof; M. Roth
Examined 156
Cross-Examined 162
Re-Examined 173
Dr. C. N. Armstrong
Examined 177
Cross-Examined 181
Re-Examined 187
original p.2, 3, 1
MONDAY, 15TH MAY 1967
Proof for the First Petitioner
PROFESSOR JOHN ANDERSON STRONG (52)
EXAMINED: I am the holder of the Degrees of Bachelor of Medicine, Bachelor of Surgery, Fellow of the College of Physicians and Fellow of the Royal College of Physicians of Edinburgh and London.
I am a Professor in the University of Edinburgh, and I carry on my practice in the Department of Medicine at the Western General Hospital.
Q.- What Chair do you occupy?
A.- It is a personal Chair of medicine.
Q.- What particular field do you deal with?
A.- General medicine with particular interest in endocrinology. This is not named in the Chair.
Q.- But that is what you do, endocrinology is what?
A.- The study of internal secretions, hormones.
Q.- Did you qualify at Dublin University?
A.- Yes.
Q.- And then did you study subsequently at London, in Edinburgh, and in Boston, Massachusetts?
A.- Yes.
Q.- Did you receive, and I show you No. 53 of Process, a joint letter of instructions from Messrs. Tods, Murray & Jamieson and Messrs. Haldanes & McLaren dated 25th November, 1964?
A.- Yes.
Q.- Is that a copy of the letter which you received?
A.- Yes.
Q.- And does that letter state that it is a joint letter of instructions by those two firms of solicitors, one acting for Mr. John Forbes-Sempill of Mallord Street, London?
A.- Yes.
Q.- And the other for Dr. the Honourable E. Forbes-Sempill of Brux, Alford, Aberdeenshire?
A.- Yes.
Q.- Does the letter go on to say, "A question has arisen as to who is the rightful heir to the Baronetcy of Craigievar and it has been agreed between us that Dr. E. Forbes-Sempill shall submit to medical examination as set out at paragraph 4 of Messrs. Tods, Murray & Jamieson's letter to Messrs. Haldanes & McLaren of 24th October which reads thus:- `4 - The object of the tests which the Doctors will make will be to determine the sex of Dr. Forbes-Sempill and may include the taking of samples of blood and body fluids and a portion of skin in addition to radiological and other types of examination, but they shall not involve anaesthesia or any other surgery except with the express permission of your client'", and does the letter go on to say that it has been agreed that a scraping may be taken from the inside of the cheek in addition to the skin sample mentioned above. "You are requested to carry out this medical examination and then to submit a copy of your Report to each of the signatories. Dr. Forbes-Sempill has original p.4, 5, 2 agreed to make available in so far as he can do so, copies of all relevant medical records". In consequence of the receipt of that letter did you in fact examine The Honourable E. Forbes-Sempill and did you write out and render to the signatories to that letter a joint report following your examination?
A.- I did.
Q.- Were you assisted in your examination by Dr. Patricia Jacobs and also by Dr. Price both of whom I think are employed in the same department of the University as you are?
A.- Yes, they are employed in the Medical Research Council Laboratory in the Western General Hospital, it is not quite the same department.
Q.- It is the same....?
A. - Within the same ambit in the hospital.
Q.- And I think Dr. Jacobs particular sphere has to do at any rate in part with sex chromosomes. Is that right?
A.- Yes, indeed, her work is almost entirely within the cytogenetics, particularly on sex chromosomes.
Q.- I think she has been associated, as she will no doubt tell us herself, but to your knowledge in this sphere for some years?
A.- Some ten years.
Q.- Dr Price's particular field is what?
A.- Dr. Price is a medical graduate who is working in the Clinical Effects of Radiation Research Unit as a physician. This is not his appointment, but this in fact is what he does.
Q.- In order to carry out the remit which had been made to you in fact examine Dr. Forbes-Sempill physically, and did you yourself or did the others take the samples which you were permitted to take?
A.- I examined Dr. Forbes-Sempill and we took Dr. Price - we did this jointly, the material was passed to Dr. Jacobs for examination, but we took the specimens.
Q.- What specimens did you in fact take?
A.- We took a smear from the mouth of the patient. We took a blood sample, and we took a small sample of skin.
Q.- From where?
A.- From the arms, I recollect. Dr. Price did this.
Q.- In your presence?
A.- In my presence.
Q.- Were those samples then submitted to Dr. Jacobs.
A.- Those were passed to Dr. Jacobs directly.
Q.- For examination?
A.- For examination.
Q.- And so far as they are concerned and so far as what Dr. Jacobs did to them it is Dr. Jacobs who can tell us about that.
A.- Yes, Dr. McQueen examined the buccal smear, this is something on which he has expertise to offer, and we asked him to examine the buccal smear.
Q.- That is the smear from the cheek?
A.- Yes.
Q.- His expertise is what?
A.- He has spent a number of years doing research in this particular problem, abnormalities of this type in the popula original p. 6, 7, 8, 3 tion as a whole and particularly in patients with disabilities of the type we were asked to investigate.
Q.- In the course of your examination of Dr. Forbes-Sempill did you get a history from the Second Petitioner?
A.- I did.
Q.- Have you got a copy of your Report which is No 48 of Process, is that a copy of a Report dated 30th December, 1966, which following upon your examination of Dr. Forbes-Sempill you rendered to both firms of solicitors who had remitted the matter to you?
A.- It is.
Q.- I think in the Report you set out the history which the Doctor gave you after stating what you have told us was done with regard to the samples which you took in the second paragraph of the letter.
A.- That is true.
Q.- In regard to the third paragraph of the letter in which you state "Dr. Forbes-Sempill understands that Professor McKerran carried out some minor surgical procedure on his genitalia at the time. He was brought up as a girl". Do you know what the surgical procedure was?
A.- No, there was no evidence that we could adduce on this point.
Q.- I don't suppose the Doctor would know because the Doctor was young at the time?
A.- The Doctor was before her teens, we think at the age of nine, this was probable, but we don't know for certain.
Q.- I was just wondering if the Doctor had given you any further information on this particular matter than is contained in the letter?
A.- No, we discussed what it might be and decided it was not really possible to say what had been done at that time.
Q.- Of course, in conducting your examination of the Doctor you were talking with another medical person - the Doctor was a qualified medical person?
A.- Yes.
Q.- When I refer to the Second Petitioner you will know I am referring to Dr. Forbes-Sempill?
A.- Yes.
Q.- You set out that the Second Petitioner gave a story of having penile erections and seminal emissions and had, had sexual intercourse sexual intercourse since his marriage in 1952. In examining the Second Petitioner were you able to form any view as to the likelihood of the Second Petitioner being able to have sexual intercourse?
A.- It is difficult to answer that categorically, it depends on one's definition of what sexual intercourse is, but I had no reason to doubt that some form of sexual intercourse would have been possible.
Q.- You say some form of sexual intercourse would have been possible, would it have been possible for the Second Petitioner to have normal sexual intercourse, normal for a man that is to say?
A.- Normal to the extent of achieving orgasm, but not necessarily normal in the sense of achieving probable fertilisation.
Q.- I was thinking more apart from that as to whether the original p. 8, 9, 10 4 Second Petitioner had got a normal penis which could achieve penetration and also emission?
A.- In those terms no.
Q.- What in fact does the Second Petitioner have in the sense of genitalia with which intercourse might be achieved?
A.- There was an organ which is normally in anatomical terms described as a clitoris which is the analogue of the penis, and this organ was certainly greatly enlarged in terms of what one would expect in the normal situation for a clitoris, but if it was regarded as a penis it could only be regarded as abnormally small.
Q.- Was that an organ with which any fluid, urine, could be passed, or anything else, seminal fluid could be passed?
A.- In my opinion, no.
BY THE COURT: Q.- You mean by that neither?
A.- Yes.
EXAMINATION CONTINUED:
Q.- And from where in relation to that organ would urine be passed by the Second Petitioner?
A.- So far as I could tell the urethral orifice from which urine would normally be passed and seminal emission occur, this was placed posteriorly to the root of this organ.
Q.- Would it have been possible with that equipment as described to achieve emission of seminal fluid into a vagina?
A.- No.
Q.- So do I understand from what you describe that the only sort of intercourse that could be achieved would be penetration of some sort by what you describe as a clitoris of a vagina, but with no prospect of anything passing through the clitoris because there was no orifice through which it could pass. Is that right.
A.- This is true.
Q.- Still on that matter, I notice you say on Page 2 of No 48 of Process in the second paragraph on that page that urine could be passed according to the Second Petitioner in the standing position, and is that for the reason you have described, the position of the urethral orifice?
A.- Yes, we did not go into details on this, but the conclusion I drew from this was that the direction of the stream would be difficult.
Q.- You then go on to say that you were told by the Second Petitioner that no blood had been passed or anything that might resemble menstrual loss?
A.- Yes.
Q.- And that you simply accepted, I presume?
A.- Indeed.
Q.- There is then a reference in the next paragraph to drugs and an occasional linguet of androgen prescribed by Professor Cawadias in London. What is a linguet?
A.- A linguet is a preparation, not necessarily of hormone, but any drug, which is administered by being placed in the mouth and allowed to dissolve in the mouth. It is usually done with drugs which if they are swallowed are destroyed but which can be absorbed through the lining of the mouth.
Q.- What would be the purpose of the Second Petitioner taking original p. 10, 11, 12 5 linguets?
A.- The linguets which we are discussing, we did not discuss their precise identity, but they are androgens, those are masculising hormones. Q.- You go on to refer to the height and weight of the Second Petitioner, complexion and hair margin and so on and also to hair growth on the anterior chest wall being fairly vigorous. I just want to ask you this in connection with the linguets, to dispose of it, if those linguets had been taken over a period of several years prior to the examination could they have produced the virilisation which you saw on the form or not?
A.- I would not say, because they were taken I think fairly late on in life when the individual's development would have been completed, and in the quantities in which I was told they were being taken I would have expected them to have very little effect at all.
Q.- You refer to the development of the breasts in a paragraph on Page 2 and give measurements. Looking at the breasts when you were making your examination what conclusion did you draw as to that part of the body at any rate a to whether it was masculine or feminine?
A.- It is not I think possible to answer this directly, because we see breast tissue in both sexes, but the conclusion I drew from this was that it was rather marked breast development, and although one sees this in some males it is not usually as marked as it was in this patient.
Q.- I notice you go on to say that the areolae measured three centimetres in diameter and the nipples were of normal female dimensions. Do the nipples of males and females differ in some way?
A.- Yes, they differ in size and breadth and in height in the adult.
Q.- So that are you saying here that so far as the breast development was concerned and the nipples and the areolae were concerned they were female without reservation?
A.- With reservation, as far as I was concerned they more resembled the female pattern than the male.
Q.- You then go on to refer to the external genitalia, and I think you have already told us about the hypertrophied clitoris. Is there anything else you would wish to add to what you have told us already?
A.- No, I don't think so.
Q.- In the last paragraph on that page you say that there was no evidence of testes found in the labia or in the region of the inguinal canal and you found nothing further following on a rectal examination. Did you conduct a purposeful search to see if you could find any evidence of testes?
A.- Yes, I did rather, because by this time the likelihood, or one of the likelihoods was that we were dealing with a case of testicular feminisation syndrome. In this condition the testes are often found lying in the inguinal canal, that is to say the passage through the abdominal wall which opens immediately above the groin and we searched this rather carefully because we were anxious to see whether or not we could feel an organ of this type.
original p. 12, 13, 14
6
Q.- And you found nothing?
A.- Found nothing.
Q.- Was there any scrotum or anything resembling a scrotum?
A.- No.
Q.- But I note you say that a vaginal introitus was apparent?
A.- Yes.
Q.- At the bottom of Page 2?
A.- Yes.
Q.- Was that a normal vagina?
A.- This was not examined any further than noting the existence of the opening, this could have been a uro-genital sinus, in other words a passage which represents the vagina and the urethra, sometimes the two coincide in certain forms of vaginal disability.
Q.- Whatever it in fact represented is it a male feature or a female feature.
A.- It is commonly a female feature but it would not exclude - it could occur in the gonadal male.
Q.- That is to say a male who had testes.
A.- Testes, yes.
Q.- Your examination was limited to that described in your letter of instruction, so you were unable to carry out any surgery unless the Second Petitioner had given you permission to do so.
A.- Quite.
Q.- I think you reached the conclusion as you tell us in your Report in your Opinion that the appearance and the history you found were consistent with a moderate degree of congenital adrenal hyperplasia. What exactly is that?
A.- This is a condition where infants before birth are subjected to an excess of virilising or masculinizing hormone which is secreted by the adrenal glands. Normally if they remain untreated infants with this disability, and if they survive - this depends on the severity of the condition - if they are females show signs of masculinization and virilisation which increases as time goes on. In the male child it leads to changes in the genitalia which are described in various ways, but by and large it means that they mature sexually at an abnormally early age.
Q.- If you had found any evidence of the existence of testes would you have taken the same view as to the condition being in keeping with a moderate degree of congenital hyperplasia?
A.- Not at all, if the testes had been found this diagnosis would be untenable.
Q.- I think subsequent to your Report you have been shown a Report by a man called Dr. Stalker in Aberdeen and also a letter by a man Klopper in Aberdeen, and Dr. Stalker's Report is No 12 of Process. If you look at No 12 of Process does that bear to be a Report by Dr. A. Logie Stalker of the Department of Pathology, Aberdeen University, Forresterhill, Aberdeen, dated 17th April, 1967?
A.- Yes.
Q.- And does he say there "All of this material, stated to be a `biopsy from inguinal region', was processed and studied histologically. It consists entirely of testicular tissue set in a non-compact stroma. The tubules are well formed and their original p. 14, 15, 16 7 basement membranes are not thickened. The lining cells are predominantly of hyperplastic sertoli type (sustentacular cells) but there are occasional but infrequent spermatogenic cells in an early maturation stage. In the tubular lumina a few sperm-like structures are noted". Is the purport of that to indicate the existence of testicular tissue?
A.- That would be my interpretation.
Q.- If that was related to the Second Petitioner in respect as it was from the Second Petitioner the biopsy was taken which showed evidence of testicular tissue would that affect your view as to whether you were right in your diagnosis of the congenital adrenal hyperplasia?
A.- It would make this diagnosis as I said previously, untenable.
Q.- If you had found any testicular tissue or indeed been in a position to carry out a biopsy might you have taken a different view in your Report to that which you did.
A.- Yes.
Q.- Having regard to the limitations imposed on you in your examination and the sort of examination you carried out, what sort of picture of congenital adrenal hyperplasia did you see, was it an ordinary picture or a doubtful picture, or what?
A.- I felt confident about it, this was entirely in keeping with what one might expect in congenital adrenal hyperplasia.
Q.- But I think to dispose of the matter, that you are reasonably satisfied that some testicular tissue has in fact been found, which would make this diagnosis untenable?
A.- Entirely.
Q.- I note you say in your Report in the first paragraph of your Opinion, "In anatomical terms, examination indicates that Dr. Forbes-Sempill is a female". Could you enlarge upon that?
A.- Well, the form of the external genitalia seemed to me to be entirely concordant with what one might expect in the female who was virilised for one of several possible reasons. With the history which we obtained that this had been present from a very early age it seemed most likely that the explanation for this was adrenal hyperplasia. We had also to take account of the presence of breasts, and added to this, appearance.
Q.- If you accept that there will be evidence to the effect that there is some testicular tissue which has been discovered would that affect your Opinion expressed that in anatomical terms Dr. Forbes-Sempill is a female?
A.- Yes, it must do, but I was referring here to the external genitalia, in other words what one could see, what one could feel at a clinical examination.
Q.- And if you accepted that there was evidence of testicular tissue how would you describe the Second Petitioner in anatomical terms.
A.- In anatomical terms I would have thought that the most likely explanation if there was only testicular tissue present, if we were confident there was only testicular tissue present, this would most closely resemble a condition which is called testicular feminisation.
Q.- I think you understand and I think it is a fact that such testicular tissue as has been shown to exist has been taken 8 original, p. 16, 17, 18 from one side of the Second Petitioner?
A.- Yes.
Q.- Having regard to the examination which you carried out and what you observed and the history you got would you consider it probable that there would be further testicular tissue on the other side, or could there be further evidence of another testis somewhere in the Second Petitioner's body?
A.- Yes, I think that the additional information which became available to us subsequently when we knew that the person's sex chromosomes content was XX, when we knew what the result of the buccal smear examination was, this would mean that it would not fall into the category of testicular feminisation, and we would be obliged to regard this as a hermaphroditism, probably a true hermaphroditism, but this again would depend on demonstrating ovarian tissue.
Q.- Does the true hermaphrodite have to have testicular and..?
A.- By definition the true hermaphrodite must have both testicular and ovarian elements.
Q.- You referred a moment ago to XX chromosome?
A.- Yes.
Q.- If we could just go on to that before we return again to the question I was asking you about, could you just explain briefly what XX chromosomes are, what significance they have in this particular context, as simply as possible?
A.- I can do this, you have other witnesses who I think are probably more competent to answer this question, I would be happy to do it, but I think you have Dr. Jacobs who is more reliable in this regard than I would regard myself.
Q.- You see, I think perhaps just so it would fit in with the rest of your evidence if you could give us a very brief outline of what its place in this context is, this XX?
A.- The normal female chromosome content is they have 46 of each, 44 are autosomes, and they are concerned with other things than sex, and there are two sex chromosomes, and in the female there are two X's, and in the male the only difference that one can detect with methods at present available is that you have one X and one Y chromosome.
Q.- So the normal female chromosomally speaking would have two X?
A.- Two X chromosomes.
Q.- And the normal male chromosomally speaking would have an X and a Y?
A.- Yes.
BY THE COURT:-
Q.- Why are they defined in that way, by the symbols X and Y?
A.- I think it is really historical, this is the terminology which was applied to them many years ago.
Q.- How are they distinguished?
A.- There are very marked differences in size, the Y chromosome is very small in contrast to the X chromosome, and of course in the female you have a pair, two X's, and in the male they are unpaired, which makes it easier to distinguish them.
Q.- How are they distinguished, by what means?
A.- By microscopic examination.
original, p. 18, 19, 20, 21
9 EXAMINATION CONTINUED:-
Q.- I think that Dr. Jacobs Report discloses that the Second Petitioner has in fact got two X Chromosomes, that appears from the last paragraph?
A.- Yes, in the two tissues which were examined.
Q.- Yes, quite so, so that as far as the information you had is concerned you started off with a person who chromosomally speaking was a normal female. Is it fair to say that?
A.- In terms of chromosomes, yes.
Q.- And on the information which you had?
A.- Yes.
Q.- If in such a person there is discovered, and a person of such description anatomically speaking as you have given, there is discovered some evidence of testicular tissue on one side what in terms of probability would you expect to find with regard to ovarian tissue, its presence or its absence?
A.- in this situation I would feel it would be surprising if there were not ovarian tissue present.
BY THE COURT:-
Q.- Where?
A.- This, my Lord, might be on the same side, it might be on the other side, or it might be in some other area within the pelvis.
EXAMINATION CONTINUED:-
Q.- An could you tell us why you think it would be surprising as you put it if there was no ovarian tissue present in this particular case?
A.- Because this is a recognised situation where you have somebody of inter-sex, that is a person showing some of the features of the two sexes, with a female sex chromosome constitution and with external genitalia which are not entirely normal, if you find that there is in such a situation testicular tissue and this testicular tissue is as it will be described - I have seen Reports on this - it would be unlikely that you would not find ovarian tissue as well. This is a true hermaphrodite.
Q.- So on the assumption which I think you are ready to make that testicular tissue is in fact present in the Second Petitioner what is your conclusion as to the category in which you would describe the Second Petitioner?
A.- The most likely category is that of a true hermaphrodite.
Q.- It is said on behalf of the Second Petitioner that the Second Petitioner is now and has all along been of the male sex in respect that he is a hermaphrodite with predominant male characteristics. I have no doubt my learned friend Mr. Jauncey will ask you some questions on that, but I would like to know from you whether you will tell us one way or the other as to whether the characteristics of the female or of the male in fact predominate in the Second Petitioner?
A.- I think with the information that one has now it is a little difficult to say this with certainty, one can say that as far as it went the chromosome sex of this individual is that of a female, we can say that the gonadal sex, that is the reproductive organ sex of the individual is that of a male so far original, p. 21, 22, 23 10 as it goes, but one would qualify that by saying that probably if the examination went perhaps a great deal further - it might have to be quite an extensive examination, that this would be ambisexual, that is to say there would be testicular elements and ovarian elements as well.
Q.- And I think you said you would be surprised if you did not find that?
A.- I would think this would be surprising if it was not discoverable. As far as the genitalia were concerned, the external genitalia, the evidence here as I stated in my Report was that I thought this most closely resembled the female pattern. Beyond that I would be reluctant to go.
Q.- Just to return to the question I was asking you, in light of your answer are you able to say that either sex, male or female, predominates in this person or that neither does?
A.- Yes, I think the evidence is that the person has got the characteristics of both sexes.
Q.- Are you unable then to say that one or other sex, male or female, does predominate, the characteristics of one or other sex predominates.
A.- Yes, I think it depends on what one feels about the importance of the various components which make up what we regard as an individual sex. For many purposes one is content with the general appearance of an individual. In scientific terms I don't think there is any single categorical answer one can give to this, because it is definable in different ways.
Q.- When you were examining the Second Petitioner for what it is worth did you have any impression yourself, any general impression as to whether you were dealing with a man or a woman?
A.- With the evidence available at the ward examination at the bedside I had little doubt that I was dealing with a female.
BY THE COURT:-
Q.- That is from clinical examination, really?
A.- Yes.
Q.- What I would like to get from you is the definition of certain terms you have already used?
A.- Yes.
Q.- What exactly is meant medically by a hypertrophied clitoris?
A.- Over-developed, overgrown.
Q.- You also used the phrase I think testicular feminisation syndrome. What does that phrase mean?
A.- Those are individuals with testicles with the form of a female, that is the external genitalia of a female and with normal breast development, but whose sex chromosome constitution is XY, that is the male pattern, so that they are in fact sex reversed, that is to say they look like females but they have testicles and they have male sex chromosome constitution.
Q.- Where are the testicles usually found in such cases?
A.- Usually in the groin.
Q.- What does syndrome mean in this connection precisely?
A.- The word is rather loosely to denote a collection of symptoms and signs.
Q.- I think I understand the next phrase you used, because I original, p. 23, 24, 25 11 think you explained it later in your evidence, but you have used once or twice the expression gonadal. What does that mean in the context in which you used it?
A.- The gonad is either the testes or the ovary.
Q.- And what is the definition of the word gonadal in this context, I think you said the patient's gonadal sex was such and such. What would you mean by that?
A.- That there was either a testis or an ovary demonstrable.
Q.- Can you tell me what is meant by a biopsy, that is I think used in Dr. Stalker's Report amongst others?
A.- This merely is an examination which is carried out on the living subject, a piece of tissue being removed for usually microscopic examination, although it might be used for other purposes as well.
Q.- Can you explain to me what is meant where you have used the phrase in your evidence up to this stage by testicular tissue on the one hand and ovarian tissue on the other. What does that imply?
A.- By this I would imply that there was on microscopical examination a tissue resembling what one would expect to see in the normal male reproductive gland, in the testes.
Q.- If you take a biopsy?
A.- If you take a biopsy. On the other hand if you had ovarian tissue, that is usually recognisable early in the reproductive phase of life, but at the menopause the female gland tends to be represented by a piece of tissue which is mainly fibrous tissue, scar tissue virtually, and it has little relation in the way of functional components, so it is really only by this time scar tissue.
Q.- I don't know if you give in your Report the age of the Second Petitioner?
A.- 54.
Q.- When you examined the Second Petitioner?
A.- Yes.
EXAMINATION CONTINUED:-
Q.- Arising out of what his Lordship has been asking you one question occurs to me, would testicular feminisation be a possible diagnosis in this case having regard to the chromosome content?
A.- Not now.
Q.- You I think made a further Report to both firms of solicitors on the 24th April this year, No 49 of Process, and following upon the Report dated 17th April, No. 12 of Process, made by Dr. Stalker, and I think you indicate in that Report that if his findings have to be accepted - Paragraph 6 - your congenital adrenal hyperplasia diagnosis is unlikely?
A.- Yes.
Q.- On Page 2 of the Second Report, No. 45 of Process, you refer to the question of ovarian as well as testicular tissue being found. You also say in the Report that as Dr. Forbes-Sempill is now aged 55 it might be difficult to demonstrate ovarian tissue conclusively, and I take it what you mean by that is that the menopause would have occurred so far as the female side of the Second Petitioner was concerned?
A.- Entirely.
original, p. 25, 26, 27
12
Q.- Would it be possible now to find some tissue which could be identified positively as ovarian tissue?
A.- I think this is possible, yes, I think if a very complete examination - and this would almost certainly involve a general anaesthetic and opening the individual's abdomen - it would be surprising if some ovarian remnants were not identifiable.
Q.- And they could be identified?
A.- Identification of them might be rather, positive identification might be a little difficult. It would, I think, have to be conceded that there is tissue present which is mainly fibrous tissue but this is compatible with what one might expect in a post-menopausal patient. Sometimes you would find germinal elements even at this age, this is possible, but I would think that unlikely.
Q.- In Paragraph 3 you say in the Report "The nuclear sex of the cells seen in the tissue reported upon by Dr Stalker should be described if possible". To what are you referring there, the nuclear sex?
A.- This is a method of examination of tissue which can be carried out short of sex chromosome or any other chromosome analysis, but one can infer from the nuclear sex appearance of the cell, you can draw inference as to its sex chromosome content, if there is what is called a barbate or sex chromatin in the cell. If there is one present it means there are at least two X chromosomes in the tissue, sometimes more. I suggested this would be useful as a test because if it was shown that the nuclear sex of the cells in Dr Stalker's biopsy tissue was shown positive then it would to my mind provide almost incontrovertible evidence that this was taken from the same individual.
Q.- Have you ever had information on this matter?
A.- Yes, I have discussed it with Mr. McLean, Dr. Mclean has looked at the slides from this point of view and he tells me he was unable to state one way or the other that there was or was not.
Q.- I think Dr. McLean is going to come and give evidence?
A.- So I understand.
Q.- So far as you understand you have had no conclusive answer as to what the nuclear sex of the cells is?
A.- Either way.
Q.- I think you say in the second last paragraph of your Report of 27th April what you have fairly well said this morning, that the patient clearly is neither a normal male nor female and "if the presence of testicular tissue is accepted is likely to be an example of true hermaphroditism". Does that opinion still hold?
A.- That would still be my view.
Q.- "Our earlier Report on buccal smears, and chromosomal analyses of skin and blood cells indicated that all were consistent with a normal female sex chromosome constitution, a finding which has been demonstrated in a number of examples of true hermaphroditism"?
A.- Yes.
Q.- And did Dr. Jacobs and Dr. Price agree with your Report?
A.- Yes.
original, p. 27, 28, 29
13 Q.- There is one further matter, I think it has been indicated to you that there may be evidence, or it may be said at any rate, that contrary to what the Second Petitioner told you the Second Petitioner did in fact menstruate when young. If there was evidence to that effect what effect would that have on the conclusion you have told us you have reached, namely, of true hermaphroditism?
A.- I think none really, I think it is still in keeping with such a diagnosis.
Q.- Would it have any significance with regard to the presence of female elements anatomically speaking in the Second Petitioner?
A.- It would make it virtually certain that there must have been ovarian elements present.
CROSS EXAMINED:
Q.- Assuming that the Second Petitioner is a true hermaphrodite would you have expected that he would have menstruated or would it be more normal that he would not have menstruated during his life?
A.- I cannot give you a statistical figure for that to say what the probabilities of one or the other were, but I would be surprised neither way, I think he may well have menstruated, but the fact that he did not menstruate would not make the diagnosis any less likely.
Q.- Indeed, but it is not in fact quite common for persons who are true hermaphrodites to have suffered from what I think is called primary amenorrhea?
A.- This is more usual.
Q.- That is to say they have never menstruated?
A.- Yes.
Q.- In other words the account which the Second Petitioner gave you as to menstruation was entirely consistent with the view that he was a true hermaphrodite. Is that correct?
A.- Yes.
Q.- Is there any possibility that the Second Petitioner could produce children of his marriage?
A.- I would have thought this was most unlikely, but I can't say impossible.
Q.- Assuming that he could not produce children, and assuming that the purpose of this Inquiry were to ascertain whether a relative could succeed to a Baronetcy during the life of the Second-Named Petitioner or whether he must wait till his death - do you follow me?
A.- Yes.
Q.- Would you advise the Second Petitioner if he was a patient of yours to under-go a laparotomy in order to ascertain ovarian tissue?
A.- I think that the facts as they have been established so far are entirely concordant with the opinion that this patient is a true hermaphrodite.
Q.- But I wonder if you could answer my question, knowing what you do would you advise any patient of yours to under-go a laparotomy in order to further the answer to that question?
A.- I am not certain, it would depend on how important one felt it was to establish there was ovarian tissue present.
original, p. 29, 30, 31
14
Q.- Is a laparotomy an operation which may be attended with some danger?
A.- Yes, it would involve a general anaesthetic.
Q.- And the opening of the abdomen?
A.- The risks are small, but they are not negligible.
Q.- Would it involve the opening of the abdomen?
A.- It certainly would.
Q.- Coming back, if you will, to a matter you dealt with at the beginning of your evidence, the question of sexual intercourse, do I understand that there is an organ which could to some extent effect penetration here?
A.- Yes, the dimensions I quoted in the Report were 1 centimetre by 1 centimetre, which is half an inch, virtually, but if this is an erectile tissue, I would not be able to say what the dimensions of this organ would be when erect, but in this situation I would consider that some measure of penetration would be possible.
Q.- I think you have explained that no emission could occur from the organ itself?
A.- Yes.
Q.- However, assuming as I think you have told us there could be an orgasm, and assuming there could be a measure of penetration could you exclude the possibility of some emission out of the urethra at the base of the organ?
A.- I think this is possible.
BY THE COURT:-
Q.- Emission of what?
A.- Of seminal fluid, but this would not necessarily contain spermatoza.
CROSS EXAMINATION CONTINUED:-
Q.- Of course whether or not seminal fluid in an individual contains spermatoza is merely a question of whether he is fertile?
A.- Yes.
Q.- There are many men in existence who are completely normal but who are infertile?
A.- I have no figures on this, but this is a common disability.
Q.- On the assumption that testicular tissue has been found I understand that you are content to discount your original tentative diagnosis of adrenal hyperplasia?
A.- Yes.
Q.- There is another way besides the existence of testicular tissue which would demonstrate the unlikelihood of that diagnosis, is there not.
A.- Yes.
Q.- I wonder if you would be good enough to look at Nos. 13 and 14 of Process. No. 13 is a letter or bears to be a letter from Dr. Klopper to a Dr. Philip?
A.- Yes.
Q.- And refers to "We have now had the opportunity to complete the steroid analysis on the 24 hour sample of urine from this patient dated 20/21st January, 1967"?
A.- Yes.
original, p. 31, 32, 33
15 Q.- Assuming that the facts set out in the letter are correct does that suggest independent of the existence of testis, does that suggest that adrenal hyperplasia may not be a correct diagnosis.
A.- Yes, I think it goes further than suggests, it would indicate, but it would not prove.
Q.- May I take it that had you had the information available to you on your examination which is set out in that letter, No. 13 of Process, that you would not have reached the view which you did.
A.- Yes, with the further qualification that if I was assured that the person from where the urine had been obtained was not having any drugs of any kind that could interfere with the estimation.
Q.- Would you consider that the quantity of androgens which the Second Petitioner told you he was having would have been likely to produce the result in No. 13?
A.- No.
Q.- I think you were unable to obtain a urine specimen on your examination?
A.- This is true.
BY THE COURT:-
Q.- Why was that?
A.- This is common in the Out-Patient Department when a person is asked to produce a sample of urine on demand, it is so common I really don't take much notice of it, and for our purpose at the time we did not regard it as essential to have this specimen. Nervousness I think is sufficient to account for it.
CROSS-EXAMINATION CONTINUED:-
Q.- Just look at No. 14, will you have it in front of you. This bears to be a urinary steroid assay?
A.- Yes.
Q.- Does that again suggest it is unlikely that adrenal hyperplasia was present?
A.- Yes.
Q.- Do you consider that in considering to what sex an individual ought properly to be assigned there are a number of criteria to be taken into account?
A.- Yes.
Q.- I think you mentioned the chromosome sex?
A.- Yes.
Q.- The gonadal sex?
A.- Yes.
Q.- And the appearance of the external genitalia?
A.- Yes.
Q.- In considering the genitalia I take it, it would be proper to consider the general body form as well, would it not?
A.- Yes, I would regard this as rather separate, I would separate the two, I think you can see people with one type of genital sex when their body figures may be discordant and not confirm the genital sex.
Q.- Would you also consider that what is sometimes described as the psychological sex of an individual was a criterion original, p. 33, 34, 35
16
which ought to be considered?
A.- I think that in making a total assessment of an individual one would have to take account of this.
Q.- I wonder if we can just consider this for a moment. Am I right in thinking that it would be unsafe in determining an individual's sex to rely solely on the result of a chromosome test?
A.- Yes, of all the single tests available this is much the most reliable.
Q.- But it is not 100 per cent infallible, is it?
A.- No, I don't think that any of the tests which are available are 100 per cent infallible.
Q.- It is I think suggested in some of the writings that a Y chromosome is necessary at some time for the formation of a testicle. Is this a view which you would agree with or not?
A.- Yes I think some component of the Y chromosome is necessary for the formation of a testicle, it may not be a whole Y chromosome.
Q.- But some component is necessary?
A.- Yes.
Q.- May I put the other way, is there any known medical, explanation for the existence of a testicle or testicular tissue in the absence of a component of a Y chromosome?
A.- Yes, I don't know the answer to that, I would be reluctant to say categorically this can happen or can not happen, but certainly in the vast majority of instances a Y chromosome is associated with the presence of testicles.
Q.- May I take it you personally don't know of any other medical explanation for the existence of a testicle?
A.- There are I am told cases of true hermaphroditism described where there is testicular tissue present where a Y chromosome has not been demonstrated.
Q.- And in fact that is the normal situation in true hermaphroditism?
A.- That is the commonest.
Q.- I am sorry, the commonest, what I am asking you, and I don't know if you are able to answer this, is do you know of any medical explanation other than the existence at some time of a Y component for the existence of that testicular tissue?
A.- I can't think of none.
Q.- Am I correct in thinking that the study of chromosomes as a basis of sex determination is a 20th century concept?
A.- Yes.
Q.- I think the name sex chromosome and the letters X and Y were first used by Wilson about 1909?
A.- I thought it was a little later, about this time, before the First World War.
Q.- Is there a condition which is sometimes found in an individual called mosaicism?
A.- Yes.
Q.- Is that a condition where you may find a patch of skin or a trace of blood in some part of the body wherein chromosomes differ from the skin or blood on other parts of the body?
A.- Yes.
Q.- So that you might find in one sample chromosomes XX and in one sample chromosomes XY?
original, p. 35, 36, 37
17 A.- Yes.
Q.- Am I right in thinking that in order to exclude mosaicism in an individual a considerable number of tests from various different parts of the body would have to be carried out?
A.- I doubt if you could ever exclude it absolutely.
Q.- I am obliged, so may I take it that you cannot exclude mosaicism in the Second Petitioner?
A.- Yes.
Q.- When you say yes you mean you cannot?
A.- We cannot exclude it, I agree with you.
BY THE COURT:-
Q.- But I understand you to say earlier that you could never exclude it absolutely, does that mean in any one or what?
A.- Mosaicism?
Q.- Yes?
A.- I would have regarded it as unnecessary to postulate this in the vast majority of people, but with difficulties of the type we are confronted with in this individual this must always be a possibility to be considered. We thought we went far enough with blood and skin and the buccal smear which is indirect evidence, of course, we thought we had gone far enough in doing these, but of course, mosaicism has only relatively uncommonly been demonstrated in true hermaphroditism, it has been demonstrated, but it is relatively uncommon.
Q.- I think there was one case of a mosaicism being found solely in the testicle of an individual?
A.- I think this is very probable, I do not know the reference to this, but I would be happy to accept that.
Q.- In addition to mosaicism, is there also known in medicine a theory called translocation?
A.- Yes.
Q.- Does that involve some sort of attachment of the Y chromosome to an X or absorbtion of the Y by the X so that the Y is not discernible as a separate chromosome on normal examination?
A.- I think probably it would it would be unwise of me to go too far into this, I recognise this as a biological entity, that translation does occur, and that genetic material can be shifted from one chromosome to another where it is appropriately placed. This certainly occurs, but the details of this are a matter for a biologist who is working with this. I would be reluctant that anything I say in this regard should be taken as more than an informal opinion.
Q.- I don't want to press you on this, because it is not really your subject, but perhaps you can just help me on this one, assume that translocation is a tenable theory, if you follow me, does that mean that at some stage there must have been a Y chromosome in existence?
A.- I think in the situation we find ourselves in with a patient with a testis, and if we accept some Y material is necessary for this organ to form then I would accept that some fragment or portion of Y material is likely to have been responsible for this.
original, p. 37, 38, 39
18
BY THE COURT:-
Q.- At some time?
A.- At some time.
CROSS EXAMINATION CONTINUED:-
Q.- If we accept that the existence of a Y or some part of a Y is prerequisite for the formation of testes am I right in thinking that the critical period for the Y or the part of it to exist is during the formative period of the testes in the foetus?
A.- Yes.
Q.- Therefore is it not the case that the existence or absence of a Y chromosome as a sex determinant can only be invaluable surely if it is present not only later in life in a child or adult but also if it can be shown to be present in the formative period in a foetus?
A.- I think it is reasonable to deduce if it is demonstrable at any time in the individual's life it would have been there all the time, if you can demonstrate it in childhood or adult life it must have come from somewhere, it will have been there from shortly after conception.
Q.- But the converse does not necessarily apply?
A.- That if you cannot demonstrate it therefore it was not there?
Q.- No, the fact that it may be demonstrable in the foetus at the formative period does not necessarily mean that it is demonstrable at a later stage in child or adult life?
A.- Yes we are discussing something which at any stage of the individual's existence may be extremely difficult to demonstrate, and I don't think that if you can not demonstrate it later in childhood or in adult life it would make it likely it would have been there at the 8th or 12th week of intra-uterine life and then to have disappeared, but it is possible it would never have been demonstrated at any time.
Q.- Assuming it was demonstrable and is no longer demonstrable - do you follow me?
A.- Yes.
Q.- Does it not really rather suggest that in that particular case the finding of 46 XX in a child or adult is really a valuable finding?
A.- I don't think so, no, I think if it has been there and has been effective at the 10th or 12th week of foetal life and if it had been demonstrable at the time, which is not an examination one would be ever able to make, but if it were functional, and one presumes demonstrable at that time, I would expect it to remain subsequently, but I would emphasise again that this is a little remote from my field, and my opinion on this is derived from discussions that I have had with my colleagues.
Q.- Does that mean that you are not in a position in the present case to hazard an opinion as to how the testes came to be formed?
A.- No more than one can about any true hermaphrodite>
Q.- It is possible, is it not, that whereas the chromosome test is completely accurate for normal individuals that it may in fact not be an appropriate determinant in the case of original, p. 39, 40, 41
19
individuals such as true hermaphrodites and for intra-sexuals? A.- It is only one aspect of the total constitution.
Q.- It is the case, is it not, that there have been found what are I think called 46 XX males?
A.- Yes, I don't how many, half a dozen I know of.
Q.- When you say you know of I take it you mean you have read about in medical literature?
A.- Yes, we have one such under our care.
Q.- That is to say he is a perfectly normal male in all respects except his chromosome character?
A.- With one exception the testes are small, abnormally so.
Q.- But they are descended, are they?
A.- Yes, indeed.
Q.- And equally is it correct to say that the normal individual suffering from the testicular feminisation syndrome is normally considered to be a female?
A.- Unless and until testicular tissue has been demonstrated or for some reason a sex chromosome analysis has been carried out they would be regarded as females.
Q.- And are such Individuals particularly feminine and very often particularly attractive?
A.- Yes, they would pass as entirely normal individuals, this comment has certainly been made about some of them.
BY THE COURT:-
Q.- The category you are speaking of just now is what?
A.- Testicular feminisation, but I would emphasise if I may that I don't regard this as particularly relevant in the sense of implying this is what we are dealing with.
CROSS EXAMINATION CONTINUED:-
Q.- No, I think you have explained this is not such a case?
A.- Yes.
Q.- I think one of the peculiarities of the testicular feminisation syndrome is no pubic or body hair is grown?
A.- In the absence of treatment.
Q.- While on this particular syndrome can you tell me is it thought that the testes in individuals suffering from testicular feminisation syndrome generate an abnormal amount of oestrogen?
A.- This has been stated, there are a number of papers in the literature in the last year or two, and in fact there are papers on the programme for the meeting of the Society of Endocrinology for the meeting later this month, there is now evidence that they are capable not only of producing excess oestrogens but excess androgens.
Q.- When you say they?
A.- Gonads of testicular feminisation syndrome.
Q.- Do the testes in the normal male generate both oestrogens and androgens?
A.- Mainly androgens.
Q.- Is the androgen a male hormone?
A.- Yes.
Q.- And is the effect of androgen on the body that it produces or accentuates male characteristics?
A.- Yes.
original, p. 41, 42, 43
20
Q.- For example, producing facial hair and so forth?
A.- Yes.
Q.- And is oestrogen a female hormone which has the reverse effect to androgen.
A.- It is not quite reversed, they are different effects, but generally speaking one regards them as antagonistic.
Q.- Is it likely that in the case of those persons suffering from testicular feminisation syndrome that the testicles produce more oestrogen than androgens?
A.- I think the evidence of this is incomplete, this has been studied very intensively by a number of groups over the world at the present time.
Q.- Has it been suggested by some people this is the case?
A.- Indeed.
Q.- Does it really come to this, that so far as the tests which you carried out are concerned they show chromosomes appropriate to a female?
A.- Yes, so far as they went.
Q.- But you cannot say that those tests excluded the possibility of mosaicism?
A.- Yes.
Q.- And that your tests would not have enabled you to ascertain whether or not translocation of a Y chromosome had or had not taken place?
A.- I think Dr. Jacobs is in a much better position to answer this, but I think a major translocation was unlikely, I think she would have detected this, but a small one, I think she would probably agree this might be difficult to identify.
Q.- Turning to the gonads, in addition to an ovary and a testis do you sometimes find what is called an ovotestis?
A.- Yes.
Q.- And is that a single gonad which is composed in part of ovarian tissue and in part of testicular tissue?
A.- Yes, it could be single or it might be paired, or it might be two organs, one on either side with a mixture of those two constituents.
Q.- This is a mixed organ as opposed to a single organ?
A.- Yes.
Q.- I don't know whether this is really your field or whether this is more a matter for the pathologists, did you consider at all on the biopsy reports the state of gonad to which those reports related?
A.- Yes, I discussed them with my colleagues - you are concerned with the question of maturity?
Q.- That is the point, and the other I was also concerned about, I don't know whether you know about this, the question of appendages to the gonad?
A.- Yes, I asked particularly how much of the total organ this biopsy represented, because at the time we had in mind the need to see whether or not any ovarian elements had been demonstrated. Obviously if you remove a small piece of tissue the chance of finding the other type of tissue would be that much smaller.
Q.- Can you recollect whether the report suggested that there was what is called an epididymis was found?
A.- Yes in the piece of tissue which was examined by Dr. original, p. 43, 44, 45 21 Klopper we came to the conclusion that this was probably most readily explained that this was either ductus or epididymis.
Q.- Would you explain what the epididymis is?
A.- The epididymis is the duct which is attached to the testes and which leads from the testes into the ductus deferens or vas deferens, those are the same passage, and this in turn connects the testes in the normal individual to the seminal vesicle and thence into the prostate.
Q.- And then out to the open air?
A.- Thus into the urethra.
Q.- I wonder if you would have before you No 17 of Process and look at Page 384. Look at the drawings. Does that show the epididymis in relation to the testes?
A.- Figure 28, yes.
Q.- This shows the undescended testis or two undescended testes?
A.- This is right, yes.
Q.- In your view assuming that there is a testis in the Second Petitioner at the moment from which this biopsy was taken would you anticipate that testis was still secreting androgens or not?
A.- On the evidence available the assays which were undertaken which were reported in Dr. Klopper's letter I would have said they probably were not secreting.
Q.- Would you have expected though that at some time that testis would have done?
A.- This is difficult to answer because it was a very small fragment of tissue, and the intersticial walls, that is the components of the testis which are responsible for producing hormones, androgens, were inconspicuous. I would be very reluctant to draw any conclusions on this either way.
Q.- I wonder if you would now consider the question of the Second Petitioner's external appearance?
A.- Yes
Q.- Was there in your view anything significant about his facial colour, the Second Petitioner's facial colour?
A.- Yes, I noted that he had a very fresh complexion.
Q.- At that time did you think that this might have some connection with your provisional diagnosis of adrenal hyperplasia?
A.- Yes.
Q.- Assuming that diagnosis is no longer tenable would you say that the Second Petitioner's colour was typical or atypical of a female?
A.- The Doctor explained to me he was working as a farmer, obviously this involved a good deal of exposure to the elements, the open air, and I was not surprised by it one way or the other.
Q.- You thought there was nothing significant?
A.- I did not attach any undue importance to it.
Q.- Did you think it was slightly more significant one way than the other?
A.- I regarded it as an element of the virilisation to which I refer in the report.
Q.- In other words an element which pointed towards masculinization rather than feminisation. Is that right?
original, p. 45, 46, 47
22
A.- Yes.
Q.- Was there anything significant so far as masculinization was concerned about the hair on his forehead?
A.- Yes, indeed, a marked recession of the forehead hair.
Q.- Is that normal in men?
A.- It is common in men.
Q.- Is it rare among women?
A.- It is uncommon among women, it depends on the age, it becomes commoner with age.
Q.- At what sort of age?
A.- It is commoner from the menopause onwards, but I should add perhaps it is particularly common in virilised women, people with adrenal over-activity for other reasons than congenital ones, this is a common finding.
Q.- And this particular case fitted in?
Y.- Yes, the Petitioner explained to me this had been present since the 20's, for many years.
Q.- If that information is correct that would rather exclude any recession due to the menopause, would it not?
A.- Yes.
Q.- And it would suggest recession due to masculinization?
A.- At the age of 20 or upwards, yes.
Q.- What about shaving, were you given a history of shaving?
A.- Yes, this was explained, shaving daily.
Q.- And this I take it is rare for women, is it not?
A.- No, it is uncommon, I see a number of people with this complaint and as far as I am concerned it is common, but for the general ambit of medicine it is uncommon, but I see a lot because of my particular interest in this type of disability.
Q.- But prima facie shaving brings to the laymen's mind a male, does it not?
A.- Yes.
Q.- There was a vigorous growth of grey hair on the chest wall?
A.- Yes.
Q.- And I think you told us about a vigorous growth also on the pubis and the upper thighs?
A.- Yes.
Q.- Is that again something which is uncommon in women?
A.- Yes.
Q.- And common in men?
A.- Yes.
Q.- Was there abdominal hair?
A.- Yes, but not in such a degree as on the chest wall. It was not so striking as on the chest wall.
Q.- Again is abdominal hair as opposed to pubic hair in women uncommon?
A.- Yes.
Q.- And common in men?
A.- Yes.
Q.- So that the colour of the Second Petitioner, the facial colour and the presence of the hair which you have just described was more consistent with a male than a female. Is that not right?
A.- In keeping with a virilised female in the same way as it is with the male.
original, p. 47, 48, 49
23 Q.- But when you say a virilised female you mean a female virilised through some endocrinological cause?
A.- Yes, I would expect there to be some explanation to account for it.
Q.- Such as hyperplasia?
A.- Not necessarily so, there are a great many other reasons why this may occur, the androgens to which we normally attribute this change can be produced by the sex glands or by the adrenals or both.
Q.- But I take it that you accept that if there is testicular tissue present here in the virilisation in relation to facial colour and hair is due to the condition of true hermaphroditism. Is that right?
A.- Yes.
Q.- Again the enlarged clitoris which you have described is only found in women where there is some virilisation process. Is that right?
A.- Yes.
Q.- Am I right in thinking that the basic sex of an individual is female?
A.- I think I would rephrase that perhaps to say that the potential for the early foetus is ambo-sexual, it could go either way, but in the absence of a suitable stimulation they tend to take the female form.
Q.- If it was theoretically possible in an early foetus to remove the gonads altogether would the foetus not be born as a female?
A.- I can't answer this for men, but it certainly occurs in animals.
Q.- And the additional stimulus which is required to produce the man is in fact normally the existence of some form of testis. Is that not right?
A.- It is usually attributed to testis, the stimulus which leads to differential in the masculine direction.
Q.- And that, of course, is exactly what you have got here, is it not?
A.- Yes.
Q.- I take it that you cannot produce testicular tissue by consumption of hormones?
A.- This is true.
Q.- So we can accept if there is testicular tissue in the Second Petitioner now it has been there since foetal stage.
A.- Yes, I would like to qualify that if I may a little, there are two or three points which have a bearing on this, one is that if the primitive testes fail to provoke masculinization and yet appears to have been responsible for virilisation in adult life that there is to me something of a paradox here.
Q.- You are assuming, are you, that there was no virilisation during child and adolescence life?
A.- There must have been something there which lead to the Petitioner being taken to Professor McKerran at the age of nine or thereby for examination.
Q.- Did the Petitioner give you an account of being taken somewhere else?
A.- Not at that time, subsequently when he was living in Paris at the age of 17 or thereby he was seen in a laboratory there original, p. 49, 50, 51
24
and later in Baden-Baden.
Q.- Did he tell you broadly speaking for what purpose he had been seen in these places?
A.- I understand that there were discrepancies of the genitalia which were the cause of some disquiet in the family and for this reason advice had been sought.
Q.- Assuming that the information which the Second Petitioner gave you was correct that would suggest, would it not, that the testicular tissue was having some effect at the ages when he went to those various places?
A.- This could be so but on the other hand the appearance of organs is not only dependent on hormones, that is to say that the genes, the components of the chromosomes which are responsible for the formation of the tissue, their action is modified by hormones, but the appearance of genitalia is in the main but not entirely due to hormones.
BY THE COURT:-
Q.- What else affects it?
A.- The situation of the cells, the chromosome content, and on the chromosomes depends many of our characteristics, whether one's hair is grey, or whether one is stout or whether one is short, all the factors which we reckon to inherit are dependent on genetic material.
CROSS-EXAMINATION CONTINUED:-
Q.- But is it your view that genetic material will influence the extent of masculinization or feminisation in a particular individual?
A.- I think it can do.
Q.- But presumably sex hormones have a greater effect than genes. Is that right?
A.- They supplement - it is difficult to explain this, we could perhaps take an example, if you give hormones to a normal male you can produce some development of what appears to be and is demonstrable as breast tissue.
Q.- What kind of hormones?
A.- Female hormones, female sex hormones, and if you give male sex hormones to a female you can produce virilisation, so that in a sense they are not dependent entirely on their genetic equivalent for the development of characteristics of this type, they can be modified by hormones.
Q.- But you cannot produce an organ, but you can react on it so to speak?
A.- Yes, you must have the rudiments of it there.
Q.- Could you describe the condition of the Second-Named Petitioner broadly speaking as that at some stage in his development a testis failed?
A.- Yes, I think it is a complicated situation because the genetic equipment was obviously abnormal for a male; if you are dealing with a male you have got a female sex chromosome constitution, yet in this situation you have a testis present; with the disorder implied by this sex reversal that we are dealing with it is asking more than was possible - I would put it this way - to reverse all the effects that were provided by the sex chromosome constitution.
original, p. 51, 52, 53
25
Q.- The testis I understand starts off in the abdomen?
A.- Yes, near the kidney.
Q.- It then passes down from the abdomen into the inguinal canal?
A.- Yes.
Q.- And finally out into the scrotum?
A.- Yes.
Q.- And accordingly if it exists in its original form and then at some stage on its passage ceases to progress further - you follow me ?
A.- Yes.
Q.- It will have varying effects upon the individual according to the point at which it stops progressing. Is that right, very broadly?
A.- In a male normally constituted in terms of sex chromosomes it would have little, necessarily little effect on the form that the individual would take, often enough all it affects is the fertility.
Q.- In an abnormally constituted individual would it have considerable effect?
A.- I would find it very difficult to answer that categorically, but I would be entirely prepared to believe that an undescended testis in a person who was sex reversed in the sense of having an abnormal sex chromosome constitution, it would be I think impossible to predict what effect this might have.
Q.- During the formation of the foetus is it correct that one of the last of the parts of the genitalia which form in a male foetus is the penis?
A.- Yes, the rudiments are there from the very early stage, but the latter phase of the development of the genitalia.
Q.- In which the penis is formed?
A.- Yes.
Q.- And the urethral tube through it?
A.- Yes.
Q.- So that theoretically if the testis which we understand has been found here had descended completely it is probable, is it not, that the small organ you describe as a clitoris would have developed into a proper penis?
A.- That I cannot answer, this from my point of view would be pure speculation.
Q.- So that so far as apparent sex is concerned although the Second Petitioner lacks a penis in the normal sense of the term with a urethral passage there are present, are there not, important masculine elements in his general appearance?
A.- Yes.
BY THE COURT:-
Q.- And those are?
A.- Evidence of virilisation which I have described before which would include the complexion, the hair growth, the recession of the forehead hair, the hair growth on the chest and the general form, that the build of the individual is much more like that of a male than a female, the masculine type of development which I referred to.
original, p. 53, 54, 55
26
CROSS-EXAMINATION CONTINUED:-
Q.- And of course the enlarged clitoris tends towards masculinity, does it not?
A.- Yes.
Q.- On your examination did you consider at all the question of the psychological sex or not?
A.- Not in any depth, no.
Q.- I take it you had some discussion with the Second Petitioner?
A.- Yes.
Q.- And obtained a history from him?
A.- Yes.
Q.- Were you in a position to form any view at all as to the question of psychological sex from your examination, or is this a matter you prefer not to hazard an opinion on at all?
A.- I could simply say that the individual had been married and described how at the age of, or in 1952 had made arrangements to have the registered sex changed, and with the evidence of virilisation which was very evident at a glance I was happy to accept that this individual was orientated as a male.
Q.- Presumably if an individual such as the Second Petitioner had been assigned at birth the female sex, had been brought up by his parents in the female sex and had then re-registered himself as a male at an age of or about 40 - you understand?
A.- Yes.
Q.- The psychological orientation to the male sex must have been very strong to overcome all this, must it not?
A.- I would agree it would need a strong motivation to go through all that this implied.
Q.- So that if you were considering again the factors we have considered, that is to say the chromosomes, the gonads, the visual appearance, and the psychological sex is it not the case that the Second Petitioner's characteristics tend towards masculinity rather than femininity?
A.- Yes. I described the individual as a virilised female, I did this because of the anatomical evidence which I described, which to me was much more that of a female, but there was all this evidence which we have discussed as well. The psychological sex at the time I would not have given an opinion on myself anyhow, but we receive from time to time patients where the discrepancy between the psychological sex and the other types of sex is very pronounced, and for this reason I preferred to leave this, I was trying to deal in anatomical and scientific measurable terms rather than in the area of psychological sex, which to me certainly would be a very difficult one to access.
Q.- When you are referring to other patients I have no doubt you have in mind cases of transvestites and trans-sexualism.
Q.- And trans-sexualism is the case where you have an individual who shall we say from the point of view of chromosomes, gonads and appearance fits clearly into one class but whose psychological sex alone is completely out of step?
A.- Yes.
Q.- But of course, the impact of psychological sex must be very much more important where you have an individual who is described as a true hermaphrodite?
original, p. 55, 56, 57
27 A.- I concede that in such circumstances this must obviously be taken into account of, where there is this completely ambivalent state.
Q.- And the psychological sex than becomes a very important factor in considering in which direction the individual is tending?
A.- Yes, again in anatomical terms, in measurable terms I would feel this would be difficult for me at any rate to attach a weighting to this factor, that is psychological sex.
Q.- Do you mean by that, that looking at the matter from the purely anatomical point of view psychological sex has no bearing?
A.- I think what a person feels about themselves must be taken into account, I would not suggest one should ignore it at all, but in terms of weighing it, measuring it, assessing it, I think this is much more difficult.
Q.- It is not a matter which you are primarily concerned with I gather?
A.- I had felt insecure in this area and was much more inclined to accept the measures of sex which were susceptible to assessment with objective means.
Q.- But there is I take it a recognised school of thought which feels that in matters of intersex psychological sex should be taken into account?
A.- Indeed, this is most important.
BY THE COURT:-
Q.- Is that in treatment or in what respect?
A.- In treatment, we have always thought that a person's sex when it has been decided, one hesitates to make a change because of the impact that this may have on the individual's psyche.
CROSS-EXAMINATION CONTINUED:-
Q.- I think the general teaching is that it is highly desirable in cases of doubt to make a decision as early as possible in the individual's life?
A.- Yes.
Q.- Make if necessary surgical alterations and stick to that decision?
A.- Yes, show that there should not be any need for change.
Q.- That teaching is hardly applicable to the present situation?
A.- Not at this stage.
RE-EXAMINED:-
Q.- I don't know whether you can offer an opinion on this, but it would appear for 40 years this person had lived as a female from what you were told. Is that correct?
A.- Yes.
Q.- Is it the case that in some cases where people are not normal sexually it may be desirable for them to live as a man or woman as the case may be albeit all their physical and anatomical features point to them being of a different sex?
A.- My feeling would be on this point what I had implied when I said earlier that to make a change is likely to create a original, p. 57, 58, 59
28
a good deal of turmoil and one would want to be very convinced of the necessity for doing this to make a recommendation on those lines.
Q.- You were asked at the beginning of your cross-examination about the question of intercourse. If there was to be any emission at all from the Second Petitioner which was going to give rise to possible fertilisation would that have to be done in some artificial way, that is to say the entry of the sperm into the vagina be achieved in some artificial way rather than the normal way through the penis. Do you follow me?
A.- Yes, I think if fertilisation were regarded as the object of intercourse in a situation of this type one would normally regard something on these lines, artificial insemination, some procedure of this type, would probably be the kind of thing that would be recommended.
Q.- It could not occur in the normal way, you say orgasm was possible, emission was possible, and it may be seminal fluid, but that fluid so emitted could not get into the vagina with the equipment the Second Petitioner has unless it was put there by some artificial means. Is that right?
A.- Yes.
Q.- You were also asked what I think was rather a hypothetical question as to whether you would advise a laparotomy in a patient of yours who was in a similar sort of condition to that of the Second Petitioner, and I think you said probably not. Am I right in thinking that in the circumstances as you found the Second Petitioner would you have considered the probability of ovarian tissue being present was so high that it would be unnecessary to suggest a laparotomy?
A.- I am not quite clear in my own mind to what difference this would make if ovarian tissue were demonstrated other than making it clear beyond peradventure that we were dealing with true hermaphroditism in the classical sense.
Q.- What is your view, leaving aside any evidence of ovarian tissue, in the facts of the present case as to how the probabilities in favour or against true hermaphroditism lie, which way do the probabilities point?
A.- In the direction of true hermaphroditism.
Q.- So far as you were able to see from these Reports on the examination of the testicular tissues did it appear to come from a normal testis?
A.- Not a normal adult descended testis.
BY THE COURT:-
Q.- How were you able to tell that?
A.- On the evidence I was given by my colleagues, Dr. McLean in particular, but Dr. Stalker's Report also indicated that the tubules in the testis contained largely Sertoli cells, and Dr. McLean confirmed this.
RE-EXAMINATION CONTINUED:-
Q.- I think he said the, "the lining cells are predominantly of hyperplastic Sertoli type (sustentacular cells) but there are occasional but infrequent spermatogenic cells in an early maturation stage". Is that what you are referring to?
A.- Yes.
original, p. 59, 60, 61
29
Q.- What does sustentacular cells mean?
A.- Supporting, in other words, nurse cells, those are the cells which are thought to be used for supporting the germinal cells, the reproductive cells within the testes.
Q.- It goes on to say, "There are occasional but infrequent spermatogenic cells in an early maturation stage". Is that the passage you were thinking of?
A.- Yes, those are the germ cells.
Q.- Does that indicate full development or not?
A.- No, this would indicate partial development.
BY THE COURT:-
Q.- At what stage?
A.- At a very early stage of development, the germinal epithelium, that is to say the components of the testes which ultimately mature into spermatoza.
Q.- Does that mean at the foetal stage or what?
A.- No, at the stage at which the sample was taken.
RE-EXAMINATION CONTINUED:-
Q.- Are you able to say at all from what Dr,. Stalker says in his Report at approximately what stage development of the testes must have stopped?
A.- This is rather the appearance that one sees in an undescended testis, and it is the kind of thing one might expect in even a fairly normal person if the testis had not descended into the scrotum, so that in one sense it is very immature but it is not incompatible with being taken from a perfectly normal mature individual.
BY THE COURT:-
Q.- Can you tell me when does the descent normally take place, at what stage?
A.- In most children it is complete before birth.
Q.- How long before?
A.- I would not like to answer that.
Q.- Is it not known?
A.- It is very variable, it should be complete before birth, but even then there are 10 percent or 15 percent of children may have one testis undescended, and it may not in fact descend until they reach near puberty.
RE-EXAMINATION CONTINUED:-
Q.- In this particular case, of course, there was no scrotum into which any testis that there was there could have descended, was there?
A.- This is so.
Q.- I don't know whether this is a question you can answer, but if there had been a scrotum into which those testes could have descended would this have affected the clitoris or would it have produced a normal penis?
A.- If there had been a recognisable scrotum I think even with the evidence that we had at the bedside at the clinical examination adrenal hyperplasia would not have been postulated because this type of external genitalia characteristic is very typical of true hermaphroditism when you have this incomplete original, p. 61, 62, 63
30
stage of development.
Q.- If you have got a scrotum would you get a normal penis or could you have a scrotum and a clitoris such as you have described?
A.- The potential for variation is almost infinite.
BY THE COURT:-
Q.- Has any such case ever been described as counsel is putting to you.
A.- With the scrotum and without a developed penis?
Q.- With the scrotum and without a developed penis, that is with the clitoris only although perhaps enlarged?
A.- This I would be reluctant to state categorically. I think it is entirely possible.
RE-EXAMINATION CONTINUED:-
Q.- The scrotum in fact would have been there and would have been in the position of the urethral orifice?
A.- No, on the one side, the analogue is the labium.
Q.- You found labia here, did you?
A.- Yes.
BY THE COURT:-
Q.- By the analogue you mean what?
A.- Making a comparison between the male form and the female form, the tissues which in the female form the labia are the analogue of the scrotum in the male.
Q.- You really mean the male analogue of the labia is the scrotum?
A.- Yes.
RE-EXAMINATION CONTINUED:-
Q.- In this case you say in your Report "Examination of the external genitalia showed normal labia majora and labia minora"?
A.- Yes.
Q.- That is to say normal female features?
A.- Yes.
Q.- Which is the analogue of the male scrotum?
A.- We could see nothing suggestive of even a rudimentary scrotum.
Q.- I don't think I am quite clear as to what your evidence is as to what may have been causing disquiet, I think was the word you used, when the Second Petitioner went to have examinations on the continent. Was it the evidence that this disquiet may have been caused by the operation of the testicular tissue or that there were other factors which could be causing it?
A.- No, in retrospect I took it to mean that in fact there was a hypertrophied clitoris, and there was disquiet as to whether this was really a rudimentary penis or in fact a hypertrophied clitoris.
Q.- And would the presence or absence of a testis have any effect on the presence or absence of this clitoris, are the two associated?
A.- Yes, indeed, if the testes were known to be present, had original, p. 63, 64, 65 31 been known to be present at that time I would have thought the conclusion would have been drawn that this was a male who was being dealt with and that the clitoris was therefore a diminutive male organ, a penis.
Q.- But in fact it was not a diminutive male organ, was it, on examination?
A.- This was my conclusion, that it was not.
Q.- It is not a male organ in the normal sense with a urethral tube in it?
A.- This is true.
Q.- So far as the researches of your department, you and Dr. Jacobs and Dr Price are concerned, did you find any evidence of the presence of any Y chromosomes?
A.- From what Dr Jacobs told me there was no such evidence.
Q.- But I think what you say is if you go on long enough and having regard to some of the features you found there is a possibility you may find one?
A.- Yes, this is not necessarily so, we know in true hermaphroditism there are I think some twenty cases now in the world literature where a careful search has been made and they conform to this appearance of true hermaphroditism with testicular elements and yet no Y chromosome material has been demonstrated, but the fact it has not been demonstrated does not prove it is not there.
Q.- It may be there but it would not necessarily be demonstrated?
A.- It may not grow. Mostly the techniques in those procedures now, not always, but usually are that a piece of tissue is taken and this is cultured, and what you see after two or three weeks culture depends on what grew, and it is entirely possible that some elements of the tissue would not have grown, they were not viable, they were not capable of dividing, and if this were so this would be one reason why the Y chromosome may not be detected.
Q.- Would the nuclear sex and the buccal smear have any bearing on this matter as to whether there was or was not a Y chromosome present?
A.- It is entirely in keeping with the findings in the blood and the skin, there were XX chromosomes, the fact that Dr. McLean found 43 percent of the cells contained this nuclear chromatin or barbodies in the cells is in keeping with the normal appearance of a female.
Q.- Is the position really this, in a case such as this where there is clear abnormality in certain respects that despite the normal procedure of ascertaining the chromosomes it may be there might be an element if you had gone on and on taking samples you might have found there was...?
A.- Yes, some other element which was not in accordance with the XX pattern which was demonstrated in the tissues examined.
Q.- Is that why you say you cannot exclude in cases of this sort mosaicism?
A.- Yes.
BY THE COURT:-
Q.- I would just like to know what you meant in your re-examination by the expression true hermaphroditism in the original, p. 65, 66, 67
32
classical sense, what does that mean medically?
A.- True hermaphroditism means that there has been demonstrated the gonadal tissues of both sexes, that is male and female, ovarian and testes, the classical sense is perhaps superfluous, this is the accepted definition of true hermaphroditism.
Q.- You mean in the correct sense?
A.- Yes.
Q.- Because I suppose hermaphroditism is sometimes used somewhat loosely is it?
A.- We have a term which is commonly used, not so commonly now as it was up to ten years ago, of pseudo-hermaphroditism, and this has been a term which was used fairly widely to imply an individual who has some of the components of the two sexes but not the gonadal components; if there are two types it is true hermaphroditism, if it is any other sort of mixture the loose term hermaphroditism is appropriate, but it is so imprecise that people prefer not to use it now.
Q.- I would like to see if you can categorise for me the various medical expressions which have been used for determining sex by different methods, I don't know if it is an accurate way of putting it, I am thinking of the various phrases like chromosomal sex and so on. Anatomical sex is one, I take it, is that right. You used the phrase at any rate?
A.- You can use this term in describing what one can see without the necessity for say microscopic examination, that is clinical examination at the bedside.
Q.- External, and so far as possible internal?
A.- And so far as possible internal by palpitation of the abdomen, and perhaps by a rectal examination.
Q.- But not by operation?
A.- This would be an extension, it would still be anatomical sex, if there were the reproductive organs of one or the other sex, this is what I meant.
Q.- Your reference to laparotomy for example might be included?
A.- Indeed.
Q.- You also mentioned certain scientific forms of investigation, and I just want to see if I can understand what these all are. First of chromosomal sex, that expression has been used?
A.- Yes.
Q.- What is meant by that?
A.- Within every cell in the body except the germ cells there are 46 chromosomes, 44 autosomes and 2 sex chromosomes, and if there are 2 X chromosomes we say this is a female sex chromosome pattern, if there is an X and Y we say this is a male sex chromosome pattern, but there are many variants on those two which lead to difficulty of classification.
Q.- And this test I understand is usually carried out microscopically?
A.- This requires microscopical examination.
Q.- After culture?
A.- Usually after culture, some cells can be examined directly, but they are relatively few, marrow cells, for example, can be examined in this way.
original, p. 67, 68, 69, 70
33 Q.- You also mentioned gonadal sex. What does that mean?
A.- To me this means the presence of the reproductive gland, the testes or the ovary.
Q.- In a particular individual?
A.- In a particular individual.
Q.- Or both, as you say may have occurred in this case?
A.- In a true hermaphrodite you have both.
Q.- Another expression you used was nuclear sex - perhaps I should have taken this immediately after chromosomal sex?
A.- This is a simpler method of examination than chromosomal sex, the common way is to take a swab from the mouth and the cells which are removed on the swab are examined directly. In this preparation you can see what is called nuclear chromatin in the cell, and if this is present and demonstrable then one can deduce there are two X chromosomes in the cell. It is inferential, if you see a little black dot on the cell you can conclude there are two X chromosome present, you refer to this as nuclear sexing or the demonstration of the barbate, or sex chromatin, but it is probably one of the X chromosomes that is shown in this way, but this is still disputed by a few.
Q.- This is really a short cut to the chromosome sex?
A.- Entirely.
Q.- Does that cover the objective procedures or are there others, anatomical sex, gonadal sex, chromosomal sex and nuclear sex?
A.- Yes, genital sex, I think we have made some reference to this, if the person has the external genitalia of the male I think this is the way in which one would classify an individual, or if they have the external genitalia of the female, if they are typically one you have no difficulty in arriving at a conclusion, but between the typical appearance of one or the other one may get a good many variants, and one needs further evidence bearing on the sex of the individual before one would make a classification on this evidence alone.
Q.- This is just one aspect of anatomical sex?
A.- Yes.
Q.- Apart from that are the categories complete so far as objective procedures are concerned, the categories you have dealt with and the questions I have put?
A.- I think people sometimes argue on the basis of sex hormones, that is the products of the gland, of the ovary or the products of the testes which are excreted which can be found in the blood, this is one method of classifying individuals, but I would regard it as less reliable than the other methods that we have been discussing, it would be supporting evidence for making a case one way or the other, but not conclusive in itself.
Q.- Those, of course, are all medical methods?
A.- Yes, or chemical, or pathological, histological.
Q.- Then the other aspect, which is subjective, I take it, is psychological sex?
A.- Yes, this for me is of much greater difficulty.
Q.- So far as medical science is concerned have we pretty well covered the categories in these questions?
A.- I would say so.