The following judgement as given by Lord Hunter on the 29th December 1967 was officially denied for 30 years by government officials, as was the complete case. Only after repeated demands was it finally uncovered. This judgement preceded the Corbett judgement and refusal, was given for it to be used as case law during the Corbett case.
OPINION OF LORD HUNTERin
SUMMARY
TRIALIN PETITION
of
(First) JOHN ALEXANDER CUMNOCK FORBES-SEMPILL
and
(Second)
LORD
HUNTER: This Petition for Summary Trial raises questions of a highly unusual character on which there appears to be little authority in the Law of Scotland. These questions arise in the following way. The Right Honourable William Forbes-Sempill l7th Baron Sempill and 8th Baronet of the Baronetcy of Forbes of Craigievar, which I understand is.a Nova Scotia Baronetcy, died on 21st July, 1905. He hadfive sons, three of whom died unmarried without issue. His eldest son was the
Right Honourable John.Forbes-Semplll, 18th Baron Sempill and 9th Baronet, who died on 28th February, 193k, and who had four children. These were the Right Honourable William Francis Forbse-Sempill, 19th Baron Sempill and 10th Baronet(hereinafter referred to as
Honourable Gwendoline Forbes-Semplll and the Honourable Margaret Forbes-Sempill, who are both now dead, and the Second Petitioner. Lord Sempill died on 30th
December, 1965, survived by female children only and never!
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never having had male children. The youngest son of the 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. Lord Sempill’s death his eldest daughter succeeded to the Barony of Sempill, which descends on a destination which admits females to the succession. The said Baronetcy of Forbes of Craigievar descends on a destination to heirs male. The parties are agreed that, failing heirs male nearer in 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 the said Baronetcy. The parties are also agreed that the Second Petitioner is nearer in line of succession.
The Second Petitioner was born on 6th September, 1912, at Fintray House, Fintray. on 22nd September, 1912, the Second Petitioner’s father registered the birth as female and 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 or the Registration of Births, Deaths and
Marriages(Scotland)Act,l854, to the Registrar of the District of Fintray In the County of Aberdeen to make an entry in his Register of Corrected Entries relative to/
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to Entry No.9 in the Register Book of Births for the
said District for the year 1912, which related to the Second Petitioner,.substitutlng the Christian name "Ewan" for the Christian name "Elizabeth"
and thesex letter
"M" for the sex letter "F". The said application proceeded upon the narrative that from birth the Second Petitioner was brought up as 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. William G.C.Manson, and (3) Dr.James F.Philip, finds that 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 Regist: ar 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 Colum of the said Entry and also to Insert a reference in the margin of the said Entry. A.J.Loutitt Laing".4.
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 claim by the Second Petitioner 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 the event of the Court pronouncing an Interlocutor under Section 10 of the Administraticn of Justlce(Scotland)Act,.1933, finding that the First Petitioner is the heir male of Lord Sempill he will enter his name on the said Register. 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,l952, and for Declarator that he is heir male of Lord Sempill. The Summons in the said Action was signetted and served, but by agreement between the Petitioners has not been lodged for calling. Thereafter, by agreement between the Petitioners and upon the joint instructions of their respective Solicitors, the Second Petitioner on 26th November,. 1966, underwent a medical examination, to which reference will be made later in this Opinion. On 13th March, 1967, the present Petition for Summary Trial was presented/
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presented under and in terms of Section 10 of the Administration of Justice (Scotland) Act,1933, and Rule 231 of the Rules of Court. The question on which the Petitioners desire a decision is set forth In Paragraph 9 of the Petition and is in the following terms:
"Is the First Petitioner the heir male of Lord Sempill?"
The First Petitioner contended that this question should be answered in the affirmative, whereas the Second Petitioner maintained that it should be answered in the negative. Counsel for the parties presented their arguments on the basis that the answer to the question, which according to its terms is one of succession and which relates solely to the claim by the First Petitioner to the said Baronetcy, depended on the sex to which the Second Petitioner was to be assigned. The First Petitioner maintains that the Second Petitioner is now and has all along been of the female sex In the physical, anatomical, physiological and genetic meaning of that term, that the Second Petitioner 15 therefore female, that the First Petitioner is In the circumstances heir
male of Lord Sempill and that he is entitled as such to succeed to the said Baronetcy of Forbes of Craiglevar in succession to Lord Sempill. The Second Petitioner on the other hand contends that the Second Petitioner/
6.
Petitioner is now and has all along been of the male sex in respect that he is an hermaphrodite with predominant male characteristics. It may be observed In passing that to refer to the Second Petitioner In the masculine gender is to appear to beg a question which naturally bulked large at the Hearing. But some such means of reference must be adopted, and I propose In this Opinion, without In any way begging the question; to refer to the Second Petitioner In the masculine except in passages where a neutral term be used without inconvenience.
On the joint motion of the parties I appointed a Proof to be taken before me. The parties were agreed that the whole trial, including the Proof and the Hearing on Evidence, should proceed before me in Chambers, and I consented to that procedure as being entirely proper and appropriate, having regard to the whole circumstances, Including the nature of much of the evidence to be led. It may be observed in this connection that there is evidence that actions by certain representatives of the Press had led In the present case to a degree of secretiveness in connection with the taking of certain biopsies which might have resulted in evidence of facts of a most Important and material character being left In doubt. The evidence led at the Proof considerably supplemented the facts narrated by the parties In
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the Petition, on which the narrative contained in
the introduction to this Opinion is largely based. The evidence led at the Proof involved considerable controversies both of fact and of medical opinion, but before dealing with those matters it is ‘convenient first to deal with the principles of law which have to be applied in a situation where the sex of a person is in doubt, particularly in a case where the problem, rare, it may be said, in the extreme, of the intersex condition of True Hermaphroditlsm is presented. The expression "true hermaphrodite" is in a sense tautologous, but it has been found convenient as a means of referring to a person who has both testicular and ovarian tissue, as distinct from persons exhibiting other intersex conditions, such as those, including Klinefelter’s Syndrome, sometimes classified under the general, though somewhat inexact, heading of Pseudo—Hermaphroditism, and also from persons exhibiting symptoms of sexual aberrations or deviations, such, for example, as Homosexuality, where by definitLon the sexual impulse is directed towards a person or persons of the same sex, and those cases of Trans—sexualism where there is a drive by the individual concerned to achieve a social sex opposite to his or her physical sex.
Of the authorities cited to me the highest is undoubtedly that of Stair, but in the passage in/
8.
in which he makes reference to hermaphrodites he is concerned with capacity to consent in the context of the constitution of marriage and of impotence.
"So the consent of persons naturally impotent or
of a dubious kind, as hermaphrodites, when the one sex doth not eminently predomine, doth not make marriage". Stair Institutions I, 4, 6. As some play was made with the words "eminently predomine" (the italics are mine), it is well to bear in mind the context, and the same comment may be made with regard to certain of the other authorities or sources to which I was referred. The idea of one sex predominating does, however, seem to be an echo from a more general consideration in the Civil Law as to the sex to which persons ought by law to be assigned. The Digest contains the following opinion of Ulpian, which bears to be an expression of general principle not confined to any particular branch of the law. "Quaeritur: hermaphroditum cui coruparamus?
et magis puto eius sexus aestimandum, qui in eo praevalet." D. I, 5, 10. This is rendered in Scott, the Civil Law, Vol. 2 p 229, as: "The question has been raised to which sex shall we assign an hermaphrodite?’An I amof the opinion that its sex should be determined from that which predominates in it." The Dutch civilian followed the text of the Civil Law. Grotius under the/
9.
the chapter heading "Of legal condition of persons", stated the principle thus: "Persons actually born are male
or female: what are called hermaphrodites are referred to one or other sex according to the prevailing character". Jurisprudence of Holland (Lee’s Translation) I iii, 6; cf. Voet Commentarius ad Pandectas I, 5, 1. It is interesting to find in Forbes’Institutes a statement of the law. to the same effect. "The Sex is Male or Female, or an Hermaphrodite, i.e.
both Male and Female, which is esteemed to be of that Sex which is most prevailing in the person." Forbes’ Institutes of the Law of Scotland (1722) I, 1, p. 18. No other Scottish authority appears to exist, and I was told that there is no reported Scottish, English or American decision in which the question of principle has been considered.
In deference to the industry of counsel it is right that I should make a reference to certain other citations, although I doubt if they advance the matter much further. Like the passage from Stair which I have quoted, they deal for the most par with particular branches of the law. The citations included a text of Paulus, where the subject under consideration was the capacity of an hermaphrodite to act as a witness: "Hermaphroditus an ad testamentum adhiberi possit, qualitas sexus incalescentis ostendi
10.
D, XXII, 5, 15. This is, I think somewhat loosely, rendered by Scott: "For an hermaphrodite to be qualified to testify in the case of a will it must be proved which sex is predominant.’t Scott, The Civil Law, Vol. 5 p. 235. The German civilians appear to base themselves on the passages which I have cited from the Digest. Spiegel, Lexicon Juris Civilis, Index; Dauth De Testamentis, p. 255 para. 310. The passage from Dauth, which contains some interesting nature lore, is riot altogether easy to follow, but L might, in the context of succession, be taken to support the view that, in a case where the sexual character. istics are in exactly equal balance as between male and female, an hermaphrodite should be treated as male. ef. Smith, Short Commentary, p. 250. The following observations by Dauth may in particular be referred to: "Aut hermaphroditus est. Tales enim non solum in rebus hereditariis succedunt; sed etiam in dubio pro maribus habentur, si in sexu masculino incalescant." I may say in passing that the use in this connection of the words "incalescentis" and "Incalescant", which may well bear the primary meaning of growing warm or kindling with love, suggests to me that the Civil Law, in approaching this problem, took Into account other considerations in addition to those of external appearance. Reference was
11.
also made -to an elaborate treatment of the subject:, with some individual touches, by the Spanish Jesuit Sanchez under the heading "De impedimenti matrimoniis". De Sancto Matrimonii Sacramento Disputationum, Disputatio CVI p.380. This writer proceeds on
he Civil Law text of Ulpian, expressing the opinion that an hermaphrodite should be assigned to one sex or the other "juxta sexum in ipso praevalentem". It is interesting to note that Sanchez suggests, at least as a possibility, that, in a case where the characteristics are in equal balance as between
male and female, the person concerned could, make a final and binding election, which would for the future assign such an hermaphrodite to one sex or the other subject, it would seem, to dire religious -sanctions if any attempt were made to reverse the position. That suggestion is, however, made in the course of a discussion of the law of marriage and of impediments thereto, and is therefore subject to the same comment as those already made in relation to the passage
from Stair. The same may be said of the passage
from Planiol. Planlol, Tralte Elementaire De Drolt
Civile, (Tr. Louisiana Institute) I 1005/1006. That passage is not in my opinion of any real assistance towards reading a conclusion as to the principle to be applied in a case such as the present, where the question/
12.
question at issue is identification of sex. Nor,
In the almost complete absence of Scottish authority, I would not hesitate to accept guidance, in relation to such a subject matter, from the Civil Law
and from Civilian writers of authority. That guidance must no doubt be accepted with some reservations. In the modern age, and indeed in the last few years, very remarkable advances have taken place in medical science as applied to this particular subject matter. Moreover, the term "hermaphrodite" was clearly used in the authorities to which I have referred In a much wider sense than the medical evidence in the present case would indicate as being acceptable scientifically at the present time. Nevertheless the broad principles of the Civil Law appear to me to be sound and to accord with common sense and with the requirements of modern society. The first of these principles is that persons actually born are either male or female. This is not self-evident, since, to take merely one example, it might perhaps plausibly be argued that a true hermaphrodite was medically of both sexes and therefore legally of neither. In a society such as ours, however, such an approach could not /13.
not in my opinion be accepted, and neither party in the present case sought to support it. Our law, our customs and our religion, for those who profess it, appear to me to require that each person in our society should be assigned, to one sex or the other. The alternative would be to place the Individual whose sex is medically ambiguous in a special category, neither male nor female, with legal consequences affecting that individual and others of a multitudinous and far-reaching character. Such a solution would in my opinion demand legislation, of which I would not care to be the draftsman. The proposition that persons actually born are male or female is In my opinion destructive of the argument by counsel for the First Petitioner, founded on the passage from Stair, that In the legal identification of sex the test, in the case of an hermaphrodite, Is not whether there Is predominance, but whether there is eminent predominance, of one sex or the other. The logical application of such a principle would involve that certain persons of ambiguous sex would find themselves in a part of the spectrum that was neither male nor female, a result which the law could not in my opinion accept in practice, having regard to the society in which we live.
What I have just said anticipates the second principle/
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principle which is in my opinion derived from the Civil Law, namely that an hermaphrodite should be assigned to one sex or the other according to the sexual characteristics which are found in that person to prevail or predominate. Fortunately, in the case of the vast majority of human beings, sex is irreversibly established, at latest, early in the foetal stage, sex differentiation and development proceed within normal limits, and the assigning of the individual at birth to his or her appropriate social sex presents no real difficulty. In a relatively tiny minority of cases, however, and for a variety of reasons, the diagnosis of sex at birth may present very difficult problems for the doctor. These problems, needless to say, may be even more baffling to the parents. Inevitably, in a few cases of ambiguous sex, mistakes are, made, and births are registered In what proves later to have been the wrong sex. Such cases may result in deep human unhappiness and misery, but, even so, the principle which I have stated is in my opinion the only reasonable and commonsense legal basis upon which to proceed in cases of intersex. The alternative to forcing persons of ambiguous sex Into one compartment or the other, which, with a very few unfortunate exceptions, probably works well enough, or at least as well as can be hoped for, in practice, is/
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-
is to place them in a separate legal category of their own, which in my opinion would be a much worse, fate in a society such as ours. Thus, while from a medical point of view sex is probably a spectrum, with the true hermaphrodite In or near the centre and with gradations outwards in the direction of the typical male towards one end and the typical female towards the other, the law, which is concerned in a practical way with the sexual role of the individual in society, must in my opinion attempt to draw a firm line, which leaves males on one side and females on the other according to the sexual characteristics’ which predominate in the person concerned. It follows from what I have said that a true hermaphrodite may fall on one side of the line or on the other according to circumstances, and that the solution of the problem in a particular case may involve very difficult and narrow questions of fact. However, as medical knowledge increases, the scope for error will, one hopes, decrease.
The solution of the problem, which I consider to be sound in principle, inevitably raises the further question, by no means purely theoretical, as what is to happen in the limiting case, where there Is no predominance and where the male and female sexual characteristics are in precisely equal balance
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I do not suggest that the answer to this question is easy, although it is the sort of problem which the law has to answer in many other contexts. The suggestion, which derives some support from the passage in Dauth already referred to, that such persons should as matter of law be regarded as males does not, except for the fact that it would provide a definite rule, attract me. Indeed, it is difficult to see any justification for an arbitrary rule such as this in a society which seems to be moving toward equality for males and females under the law. It might be said, with equal reason or unreason, that such persons should as a matter of law be regarded as females, and it might even be argued that the lot of
the average effeminate male would be less unhappy under such a dispensation than under the rule suggested by Dauth. I am also disposed to reject the solution suggested by Sanchez in the context of impediments to marriage, namely, some form of final election by the person concerned. In an age when the terrors of punishment for mortal sin could control the actions of even the most hardened of sinners, such a rule might no doubt have worked well enough in practice, but, in an age when one regularly sees perjury committed In a manner which can only be described as lighthearted, the dangers of leaving such
17.
a matter to the personal choice of the individual, even under the sanction of an oath, are In my opinion unacceptable. It is one thing to make life in society easier for those who
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doubt this is a disappointing conclusion for those who wish that law could be an exact science, but, in, cases where difficult questions of degree have to be, solved, it is sometimes necessary to fall back on onus of proof as a ground of decision at the stage where the facts on one side and the other are found to be in exactly even balance. Needless to say, onus of proof In this connection should not be a point of departure, but should be employed as a means of resolving the problem only when all the facts have been ascertained and, when weighed in the balance, have been found to point as matter of reasonable probability neither In one direction nor the other.
According to the evidence in the present case, the main medical criteria of sex, according to present knowledge, are fourfold, namely chromosomal sex, gonadal sex, apparent or phenotypical sex, and psychological sex. The first three of these criteria were sometimes grouped together in the evidence under the descriptions "physical sex" or "anatomical sex". According to the evidence, chromosomal sex is determined at the moment of conception. A normal human being has 22 pairs of autosomes plus 2 sex chromosomes, a total of 46. The normal. female has 2 X chromosomes, and is chromatin-positive. The normal male has 1 X and 1 Y chromosomès/
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chromosomes, and is chromatin-negative. The normal female is therefore said to have a
20.
existence at some time of a Y chromosome, at least three hypotheses have been advanced to account for the failure, in the case of some true hermaphrodites, to find a Y chromosome by the presently recognised 4 scientific tests. These hypotheses are mosaicism, translocation and loss. Whatever the true explanation of these matters may be, I am satisfied that, at any rate in the case of a true hermaphrodite, chromosomal sex is the least valuable of the available criteria, when the matter under consideration is not a medical and parental decision as to the social sex in which an infant should be reared, which decision may involve, amongst other things, surgical interference with the genitals and treatment with hormones, but the legal identification of sex in an adult. Indeed, if it be the fact that the existence of a Y chromosome in the constitution is essential to the development of testicular tissue, It cannot even be said that a true hermaphrodite, whose karyotype as disclosed by existing techniques from the available specimens is 46/xx, was even intended by nature to be a female.
I turn therefore to the criterion of gonad sex. Once again it is not difficult to state what is found in a normal human being. A normal female has two ovaries intra-abdominal, whereas a normal male has two testes external to the abdomen. The sex/
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sex of the gonad is determined from its histological structure. In the present case it is in my opinion established by the evidence that the Second Petitioner has one male gonad in the form of a mal - descended testis, which at the present time is situated in
the left groin in the area of the left inguinal ring below the inguinal canal on that side. I do not go into the somewhat unusual circumstances under which the biopsies, leading, together with other evidence, to this finding, were taken, because it was accepted by counsel for both parties that the presence of testicular tissue on the left side had as matter of probability been proved. Although it has not been positively established that any ovarian tissue exists In the body of the Second Petitioner, the weight of the expert evidence is in my opinion to the effect that such tissue is more likely to be present than not, although the questions whether itis present in the form of an ovary or of an ovotestis, and, if either, in what position, belong to the realm of speculation. I should add, in the foregoing connection, that there is no evidence which satisfies me that the Second Petitioner has ever menstruated. On the contrary, although It is apparently not unknown for a true hermaphrodite to have menstrual periods, I am disposed to accept the evidence of the Second Petitioner
/
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Petitioner that he has never menstruated, a conclusion to which evidence of a degree of parental anxiety during his adolescence lends some probability: In relation to this and other matters counsel for the First Petitioner founded strongly on the letter No. of Process. Having regard to the ratio of Young v. National Coal Board 1960
S.C. 6, I consider it doubtful whether this letter from the Second Petitioner’s sister, who is now deceased, to the First Petitioner‘s solicitor is admissible in evidence. cf. Geils v. Geils 1855, 17 D.397, per L.P. McNeil at p. 404.But, assuming in favour of the First Petitioner that it is, I prefer the evidence of the Second Petitioner at the points where that evidence and the statements in the letter are in conflict. As regards the matter of menstruation, there is no indication as to how the Second Petitioner’s sister came by her information, if come by it she did. Having regard inter alia to the differences In age and upbringing between the Second Petitioner and the author of the letter, it may well be that the statement made about menstruation In the letter No. 47 of Process was based on hearsay or even double hearsay, and quite possibly on information that was Intended to be misleading. In any event, the general quality of the evidence contained in No. 47 of Process, even assuming that
it is /23.
is admissible, is in my opinion open to question. The whole matter was one which the Second Petitioners sister clearly found to be upsetting. It is obvious from other evidence that her state of mind at the material time was confused, probably because she could not understand the situation, and the terms of1 the letter itself leave an impression of partisanship, and something approaching resentment or pique toward the Second Petitioner, an attitude which happily seens to have been resolved shortly before her sudden death in a motor accident.
Having regard to the whole evidence I consider that, as matter of probability, the Second Petitioner is a true hermaphrodite, in what Professor Strong called the classical sense. This, I may add, was the hypothesis upon which the main arguments for the parties on either side were based. The only other hypothesis suggested, though as less probable, was t at the case was one of a Klinefelter-like Syndrome, a diagnosis which I understood would, if anything, be more favourable to the view that the Second Petitioner is a male than the diagnosis of true hermaphroditism. It follows from what I have said that the gonadal sex in this case Is probably ambiguous, but the establish d presence of testicular tissue is, for several reasons a fact of very considerable importance. As I have indicated /
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/
indicated, it may, according to one theory or
hypothesis, postulate the existence of a Y chromosome somewhere in the constitution of the Second Petitioner, a possibility which in itself makes It somewhat dangerous to rely too much on the criterion, of chromosomal sex as derived from the scientific tests which it was possible to carry out in the present case. But, what is in my opinion far more important, from the point of view of legal identification of sex, is the practical consideration that the presence of a testis would readily and logically account for signs of masculinization in the Second Petitioner, regarded from both the physiological and psychological points of view. It was broadly accepted in the expert evidence that, although chromosomal sex is probably determined at the moment when the sperm fertilises the ovum, sex différentiation does not take place until a later stage. I also understood it to be generally accepted that male hormones, known as androgens, produced by a testis or testes are essential ingredients of male development of the foetus. It appears that, If testicular androgens are not supplied at the proper time, masculinisation will not take place, and the product will be a human being of the female apparent or phenotypical sex. It seems that this would happen even if ovarian tissue was/
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was not present in the foetus Thus the criterion of gonadal sex demonstrates that the Second Petitioner is neither a normal male nor a normal female. It leaves unsolved the question whether the Second Petitioner should be regarded as an abnormal male o an abnormal female, using the word abnormal in its literal and not in any pejorative sense. The criterion of gonadal
sex certainly does not destroy the proposition that the sex of the Second Petitioner is male, and it supports the view, in my opinion, that there is a constitutional basis for the degree of masculine physical development and psychological orientation to which I will be referring in a moments It is, moreover, of some importance that the testis which has been found to be present in the Second Petitioner, although mal descended and showing evidence of poor sperm production, was nevertheless found to be capable of some degree of spermatogenesis. A few identifiable spermatozoa were observed, and one of the witnesses, who examined the specimens provided from the testis in question, expressed the opinion that tissue obtained by means of one of the biopsies indicated a well formed testicular apparatus, in respect that not only were seminiferous tubules present but also a well formed conducting mechanism to the exterior. It is interesting to note that, although the probability appears /26.
appears to be that the Second Petitioner is infertile, Professor Strong, who gave evidence for the First Petitioner, could not say that it was impossible that the Second Petitioner could produce children of his marriage.
I now turn to apparent or pheno, typical sex. Although I have found the problems
much assistance, and I doubt if expressions such as "underdeveloped male" or "masculinised or virilised
female" take one any distance towards a solution. The matter must in the end of the day be one of impression and degree based on the whole available evidence, and the fact that medical opinion has been expressed on either side by experts whose qualifications and experience in this field are beyond question emphasises the difficulty of the problem. My conclusions are that, judged purely by appearance, the external genitalia are predominantly female, but, judged by function, they are predominantly male. In the latter respect I regard the evidence of the wife of the Second Petitioner as being of great importance. Although she obviously might have a strong interest in the matter, I was impressed by both the content and the manner of/
27.
or her evidence. The fact that in sexual intercourse the Second Petitioner is, despite his physical handicaps, able to penetrate with his phallus the vagina of his wife and to function mechanically as a male, to the satisfaction both of himself and his partner and to the point of orgasm and emission, is in my opinion of greater importance than the predominantly female external appearance of the genitalia, which no doubt was largely responsible for him being reared in the social sex of a female. There is, it may be noted, no evidence that the Second Petitioner ever has or ever could, for the purposes of intercourse, function mechanically in the sexual role of the female, or that any attempt to do so could lead to satisfaction on the part either of the Second Petitioner or of a male partner So far as concerns other features apart from the external genitalia, my conclusion is that the apparent
The final criterion which falls to be
considered
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considered is what is called in the evidence psychological sex. There was considerable argument before me as to whether it could ever be proper to take this aspect of the matter into account when the question was the legal identification of sex, as contrasted, for example, with the making of a decision as to the best medical, surgical or psychiatric treatment in cases of intersex or trans—sexualism. I am far from saying, to take an example, that a finding that the psychological sex of an individual was male would ever justify a conclusion that a person was legally a male although the physical sex of that person was clearly female, but, in a case where a person can function sexually as a male to the extent which the Second Petitioner is able to do, and where there can be found in that person’s body male gonada tissue from which masculine attitudes, behaviour and desires, both sexual and otherwise, as well as masculine physical characteristics, may reasonably be assumed to have emanated, directly or indirectly, the fact that the psychological sex is male is in my opinion an adminicle of evidence of some Importance. I consider that there is in the present case overwhelming evidence that the psychological sex of the Second Petitioner is male, and, having regard to the nature of his upbringing and the family and social
/
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social difficulties with which he has been confronted it does not surprise me that, in spite of his life long feeling of being a misfit in the social sex of female, he did not take the definitive step of re-registration until he was almost 40.
Taking all the criteria together it is my opinion that the Second Petitioner is a true hermaphrodite in whom male sexual characteristics predominate, and that this has been the position throughout his life. The evidence of expert medical opinion led on behalf of the Second Petitioner is in my opinion both coherent and weighty, and my conclusion, after considering the whole evidence more than once with the greatest care, is that it must prevail against the evidence to the contrary effect, particularly from Professor Strong, whose views may have been coloured to some extent by his original diagnosis of congenital adrenal hyperplasia, a diagnosis which has now been disproved. The evidence of Dr. Price at pp. 98 to 99 of the Notes of Evidence is in this respect rather
striking. I have not found it necessary to proceed to any extent on onus of proof, but, if it had been necessary to do so, the result would in my opinion have been the same, since, as counsel for the First Petitioner conceded, correctly in my opinion, the initial onus would be on the first Petitioner to displace/
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displace somebody standing between him and the Baronetcy. It follows from what I have said that I answer the question in the Petition in the negative.
I should perhaps add that I raised with the parties the question whether the dispute or question set forth in the Petition for decision was or was not a dispute or question affecting the status of any person within the meaning of Section 10 (8) of the Administration of Justice (Scotland) Act, 1933, and Rule of Court 231 (o), and also whether there were any grounds for making a report under Rule of Court 231 (h). Counsel for the parties were able to satisfy me that the dispute or question set forth in the Petition was not a dispute or question affecting the status of any person within the meaning of the said provisions. The dispute or question does not fall expressly within the inclusive definition contained in Rule of Court 231 (o), nor does it bear according to its terms to affect the status of any person. The question, as put, is one of succession, and the sole positive or practical result which could have emerged from the proceedings was that, if the Court had pronounced an Interlocutor answering the question in the affirmative, the Secretary of State for the Home Department would, if he had acted in accordance with the indication given by him, have entered!
31.
entered the name of the First Petitioner on the Register of Baronetage. As it has turned out the question has been answered in the negative, but in either event I am of opinion that the dispute or question did not affect the status of any person, and in particular of the First or the Second Petitioner. For the same reasons it did not appear to me that the determination of the dispute or question might affect the status of any party, and there were therefore no grounds in my opinion for reporting the matter under Rule of Court 231 (h).
29th December 1967. J.O.L.Hunter.
The following abstract was written by Prof. Gooren after having reviewed the complete medical evidence presented at the Sempill Case. This abstract was presented to the court in Strasbourg.
ABSTRACTS FROM THE MEDICAL TESTIMONY OF FORBESS-SEMPILL Testimony of prof J.A. Strong
P 8/9 The genitalia of Ewan Forbess-Sempill are described; the examination showed a somewhat enlarged clitoris, definitely not a normal penis through which urine can be passed.
P 10 physique is described: hair growth on chest wall fairly vigorous.
P 11 breast development is described as female, particularly the nipples. No evidence of testis in the labia or inguinal canal. This was searched for with particular attention.
P 12 on rectal examination nothing remarkable (note of prof Gooren: apparently there was no prostate which is normally the case in male persons, particularly after a period of testosterone treatment). No scrotum. Vagina was not explored and therefore no evidence of the presence/absence of an uterus was obtained.
P 14/15 Prof Gooren agrees that it is highly unlikely that this is a case of virilizing adrenal hyperplasia, and neither a case of testicular feminization, presently termed and rogen insensitivity syndrome. The latter would render significant sexual hair development unlikely. The genitalia are described as female with some degree of virilisation
P 17 also the chromosomal configuration 46XX excludes the diagnosis androgen insensitivity syndrome
on several occasions it is hypothesized this could be a case of true hermaphroditsm, which would reconcile the combination of the 46XX with the presence of testicular tissue, but nowhere is there any evidence of ovarian tissue so this remains hypothetical but it is also highly unlikely.
p 44 no hormonal activity suggestive of the presence of testicular tissue in Ewan Forbess-Sempill. There are no indications of adrenal pathology
P 45-48 mention a degree of virilization obviously having occurred only later in life. Virilization early in life masculinizes the clitoris much more than is the case in There are no indications of adrenal pathology
P 54 describes what we by present day terminology would understand by transsexualism, which term is also used at p 55, but Prof Strong feels incompetent to establish that diagnosis.
Prof Gooren arrives at the conclusion that prof Strong encountered a virilized female subject. For the virilization there was no good medical explanation except exogenous male hormone administration.
Dr P.A. Jacobs
The chromosomal tests show convincingly that the chromosomal pattern is 46XX. To reconcile this finding with presence of testicular tissue true hermaphroditism is hvpothesized. but again. the examination of EWAN
FORBESS-SEMPILL provide no supportive evidence. Prof Gooren remarks:
There are male subjects with a XX chromosomal pattern; in them the genetic information determining the formation of a testis is translocated on the X chromosome. Clinically these men appear as person of the male sex reminescent of Klinefelter syndrome (no doubt that this a penis and a scrotum)
Dr WH Price (pp94-99)
confirms large clitoris but otherwise female sexual differentiation. Confirms that prof Strong’s description of the examination of EWAN FORBESS-SEMPILL is correct
Dr N.Maclean (pp 100-110)
Is convinced that the preparations examined were testicular tissue and ductus deferens tissue. Again, it is difficult to reconcile this finding with a XX chromosomal pattern.
Dr AL Stalker pp 112-127
Is convinced that the preparations examined were testicular tissue.
Dr AA Shivas pp 128-138
has observed only testicular tissue; no evidence of ovarian tissue
Dr GC Manson pp 138-1 52
Prof Gooren observes: This is an account of very unusual medical practices. Here is certainly the possibility for fraud. EWAN FORBESS-SEMPILL claims that he took his own biopsy which sounds very improbable. It is even more remarkable that EWAN FORBESS-SEMPILL asks to use the name of his general practicioner to authorise sending a biopsy to a laboratory which request was honoured. How sure can we be this was actually the tissue of EWAN FORBESSSEMPILL? Or was it of someone else? The second biopsy is taken by his general practicioner from an inguinal mass, but Drs Strong and Price had earlier not found any evidence of an inguinal mass while they were specifically searching for it in view of their idea that this could be a case of androgen insensitivity. Since the sample was delivered to the laboratories by Mr Reid one cannot be sure the biopsies taken by dr Manson were actually delivered. It could be that again the earlier samples of another person taken by Ewan ForbessSempill were delivered to the laboratories by that time.
Dr II Klopper (pp1 96-21 0)
Dr Kiopper cannot give the exact dates when he received material for examination of the biopsy (p 200). He indicates he received the material from a cleric. None of the investigators of the biopsies has had constant supervision of their preparations which is normal medical practice.
His examination of the urine sample is compatible with a male or postmenopausal female. There are no indications of adrenal pathology
Dr Klopper argues that in cases of (pseudo)hermaphroditism the own sexual identity of the affected subject would be momentous in the decision to assign that person to one sex or the other.
Dr CJ Dewhurst(p 211
If one carefully studies the physical findings of Dr Dewhurst, there is only a description of a virilized female body which is consistent with the long term use of male hormones (in the case of EWAN FORBESS-SEMPILL) from age 39-54. His interpretation of the results of the physical examination tend to be overinterpreted in the male direction for which he provides not much solid evidence. Particularly the description of what he terms a phallic organ is really a clitoris long-term exposed to male hormones. Also Dr Dewhurst argues that the self-experienced sex is very significant in sex assignment in cases of (pseudo)hermaphroditism.
Prof Roth arrives at the conclusion that the description of Ewan Forbess-Sempill fits best with that of transsexualism. There are some physical abnormalities. The latter is probably based on the descriptions of his colleagues. These are in all likelihood not congenital but acquired by use of masculinizing hormones
General conclusions: In all likelihood EWAN FORBESS-SEMPILL has been a normal female person who has undergone a considerable degree of virilization by exogenous male hormones taken between the ages of 39 and 54, the time of the examinations. The description is consistent with what one observes in female-to-male transexuals long term treated with male hormones. In fact all descriptions of the person’s physique fit best with that. The descriptions are not consistent with the clinical pictures of congenital virilizing adrenal hyperplasia or the androgen insensitivity syndrome. What has confused the experts giving expert witness in the court is the combination of an 46XX chromosomal pattern and the finding of testicular tissue. The unusual combination of an XX chromosomal pattern with the supposed presence of testicular tissue makes them assume that EWAN FORBESS-SEMPILL is a true hermaphrodite, but none of the investigators has been able to identify ovarian tissue. In any case true hermaphroditism is exceedingly rare. Alternatively, some men present with a XXchromosomal pattern but they have a phallus and a scrotum, not encountered in EWAN FORBESS-SEMPILL. How sure can we be that the testis biopsy samples provided by EWAN FORBESS-SEMPILL were of himself? The biopsies performed by dr Manson were delivered to the laboratories by Mr Reid. None of the examiners can actually testify that the provenance of the tissue samples is EWAN FORBESS-SEMPILL. Dr Manson may have acted in good faith but he has had no control over what samples were in reality delivered to the laboratories after he had performed biopsies. It remains a question why EWAN FORBESSSEMPILL has not subjected himself to the standard procedure of having a biopsy in the hospitals where the later examiners were working. Apparently there was an interest in directing this procedure personally.
Amsterdam, January 29, 1998
signed by professor Louis Gooren, endocrinologist at the hospital of the Vrije LJniversiteit, Amsterdam, the Netherlands