Alternative Law Journal
JAKE BLIGHT[*] discusses a recent case upholding the validity of a marriage involving a transsexual person.
In Re Kevin (validity of marriage of a transsexual)  FamCA 1074 a single judge of the Family Court recently upheld the validity of a marriage between a woman and a female to male transsexual. It was not in dispute between the parties that, for the purposes of the Marriage Act 1961 (Cth), a marriage must be between a man and a woman. The issue was whether the husband was a ‘man’ at the date of the marriage.
The applicants, Kevin and Jennifer, went through a marriage ceremony in October 1998. They later applied for a declaration of the validity of that marriage. The application was opposed by the Attorney-General for the Commonwealth. The Court accepted that Kevin was born female but that, for as long as he could remember, he had perceived himself as male. The judgment details the counselling, hormone therapy and surgery that Kevin underwent prior to his marriage.
The applicant’s case included a significant body of evidence that, for social and administrative purposes, Kevin was accepted as male. Thirty-nine witnesses comprising of Kevin’s family friends and work colleagues gave evidence that they perceived him as a man and had done so at the time of his marriage. There was also evidence that Kevin had sought and obtained a new birth certificate that listed his sex as male, is listed as male on his drivers licence and passport and is treated as male by Medicare, the Tax Office and other public authorities as well as various banks and clubs. Kevin and Jennifer have a child conceived by donor sperm and evidence was accepted that the Fertility and Andrology team at the Royal Prince Alfred Hospital in Sydney, aware of Kevin’s transsexual history, accepted them as a heterosexual couple. Kevin is listed as the father on the child’s birth certificate.
Medical evidence was accepted from psychiatrists who had interviewed Kevin as well as from various medical specialists in the area of gender identity. Several pages of the judgment are devoted to discussing medical evidence about the development of sexual identity and ‘brain sex’.
The decision marks a departure from the English position where, since the decision in Corbett v Corbett (otherwise Ashley) (1970) 2 ALL ER 33 the English courts have held that sex is fixed at birth. A central assumption in Corbett was that biological sex, defined to consist of gonads, chromosomes and external genitalia, can not be altered by surgery or social considerations. Chisholm J in Re Kevin points out that this assumption is given the status of a conclusion in Corbett without any reasoning or analysis being undertaken. The Corbett decision has also come under sustained academic and judicial criticism for its assertion that the ‘essential role of a woman’ in marriage depends on her ability to have penetrative vaginal intercourse. In his analysis Chisholm J found the assumptions made in Corbett odd rather than self-evident and the reasoning unpersuasive.
If Corbett had been followed the court would have had to ignore all of the medical and social evidence presented which accepted Kevin as male and arrived at an outcome that would not permit Kevin to marry Jennifer but would seemingly have to accept that Kevin could marry a man. Presumably this is the outcome the Attorney-General was seeking.
Having rejected Corbett as a starting point Chisholm J undertook the task of defining a ‘man’ for the purpose of the Marriage Act. His Honour found that ‘man’ was an ordinary word, not a technical word, and should be given its contemporary meaning. Drawing on the body of social and medical evidence presented, his Honour concluded that the contemporary definition of a ‘man’ includes post-operative female to male transsexuals. This interpretation is consistent with the law in Australia regarding the ‘legal sex’ of post-operative transsexuals in the areas of criminal law and social security law. His Honour then considered whether the term ‘man’ should be given a different meaning to its ordinary contemporary meaning especially for the purpose of marriage. It was argued for the Attorney-General that marriage is a social institution having its origins in ancient Christian law and is intrinsically linked with procreation. In rejecting both of these arguments Chisholm J cited the separation of Church and state which exists in Australia and stated that the validity of a marriage does not in any way depend on capacity for procreation.
The decision in Re Kevin brings Australia into line with decisions about marriage in a number of other countries. There are, however, still some areas of the Australian legal system that fail to recognise that a person’s sex may change from that assigned at birth. This failing leads to significant practical problems. For example, in some States, post- operative male to female prisoners are placed in male correctional institutions. Anti-discrimination legislation that protects transsexuals is also absent in several jurisdictions.
The Attorney-General has appealed the decision in Re Kevin and may well argue that the word ‘marriage’ in the Marriage Act is used in a traditional way that does not necessarily encompass the meaning that may be given to the terms ‘man’ or ‘woman’ in other contexts. If the Attorney- General is successful with this argument the same argument could then be applied to the marriage power in s.51(xxi) of the Constitution on which the Marriage Act relies. If it is found that the term ‘marriage’ in s.51(xxi) has a traditional meaning which does not extend to transsexual marriage then transsexual marriage would seemingly be outside of the Commonwealth’s legislative competence and therefore a matter for the States. Arguably the same line of reasoning could be applied to other ‘non-traditional’ forms of marriage such as gay marriage.
[*] Jake Blight is a Canberra lawyer.
 Throughout the trial and in the judgment Kevin was referred to with the male pronoun. Chisholm J expressly stated that this was a matter of courtesy and did not indicate any prejudgment of the issues.
 R v Harris and Mc Guinness (1988) 17 NSWLR 158.
 Secretary, Department of Social Security v SRA  FCA 573; (1993) 118 ALR 467.
 See Blight, Jake, ‘Transgender Inmates’, Trends and Issues in Criminal Justice, Australian Institute of Criminology, No 168, 2000.