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- Sydney couple, ‘Kevin’ and
‘Jennifer’ on 21st August 1999, defied
the advice of the Commonwealth Attorney
General’s Department that they had no right
to marry (and that ‘Kevin’ would
commit a criminal offence if he tried to do
so).
- Their subsequent successful legal battle to
pursue their human and civil rights against the
Australian Government commenced 18th October
1999 with Justice Chisholm's decision, granting
a Declaration
of Validity of Marriage was delivered on
12th October 2001.
- The Commonwealth Attorney General appealed
the 12th October 2001 decision. The appeal was
heard before the Full Court of the Family Court
of Australia on 18th and 19th February
2002. The Full Court consisted of their
Honours Chief Justice Nicholson and Justices
Ellis and Brown. The
Full Court of the Family Court of Australia
dismissed the appeal on 21st February
2003 by the Attorney General for the
Commonwealth of Australian, thoroughly reviewed
the applicable evidence and legal issues and
strongly affirmed the original decision.
- Re Kevin declared the law of
Australia to the effect that the question of
whether a person is a man or a woman for the
purpose of the marriage law of Australia is to
be determined as at the date of the
marriage.
Summary of 'Kevin's'
Situation
- 'Kevin' at birth had female chromosomes,
gonads and genitals;
- Like many males experiencing transsexualism,
'Kevin' had not undergone phalloplasty (penile
construction) at the time of the hearing, due to
medical risk, present efficacy, cost and family
obligations.
He was still considered to have successfully
undergone sex affirmation treatment sufficient
to permit medical certification pursuant to
sections 32B and 32C of the Births, Deaths
and Marriages Registration Act 1995
(NSW).
- At the time of his marriage, he was a man
for the purpose of the law of marriage, and in
particular the following was cited by the
presiding judge, Justice Richard Chisholm:-
"(a) He had always perceived himself to be a
male;
(b) He was perceived by those who knew him to
have had male characteristics since he was a
young child;
(c) Prior to the marriage he went through a
full process of transsexual re-assignment,
involving hormone treatment and irreversible
surgery, conducted by appropriately qualified
medical practitioners;
(d) At the time of the marriage, in
appearance, characteristics and behaviour he was
perceived as a man, and accepted as a man, by
his family, friends and work colleagues;
(e) He was accepted as a man for a variety of
social and legal purposes, including name, and
admission to an artificial insemination program,
and in relation to such events occurring after
the marriage, there was evidence that his
characteristics at the relevant times were no
different from his characteristics at the time
of the marriage;
(f) His marriage as a man was accepted, in
full knowledge of his circumstances, by his
family, friends and work colleagues."
from the Conclusions of Justice Richard
Chisholm in Re Kevin
What can this mean for
me?
In determining the sex of transsexual
males, the ordinary legal meaning of the
word "man", includes post-operative female to
male transsexual males and can be applied for
the purpose of the law of marriage.
If your
legal-sex is male (your
legal-identity) and this is evidenced by
your current legal birth certificate, since
Re Kevin, Australian Federal law permits
you to enter into a legally binding marriage
with your female partner.
This legal case and decision is  publically
available on the Australasian Legal Information
Institute website. If you can present a
male birth
certificate as evidence of your
male legal-sex - and your
celebrant/priest/pastor still refuses to
recognise the legality of your union, then we
can only suggest you seek out another
celebrant/priest/pastor. We suggest that your
celebrant/priest/pastor read the Re Kevin
decision - the decision.
There are circumstances in which a person who
at birth had female gonads, chromosomes and
genitals, nevertheless is a man at the date of
his marriage.
Test as laid down by Justice Richard
Chisholm in Re Kevin—
"To determine a
person's sex for the purpose of the law of
marriage, all relevant matters need to be
considered. I do not seek to state a complete
list, or suggest that any factors necessarily
have more importance than others.
However the relevant
matters include, in my opinion,
- the person's
biological and physical characteristics at
birth (including gonads, genitals and
chromosomes);
- the person's life
experiences, including the sex in which he or
she is brought up and the person's attitude
to it;
- the person's
self-perception as a man or woman;
- the extent to which
the person has functioned in society as a man
or a woman;
- any hormonal,
surgical or other medical sex reassignment
treatments the person has undergone, and the
consequences of such treatment;
- and the person's
biological, psychological and physical
characteristics at the time of the marriage,
including (if they can be identified) any
biological features of the person's brain
that are associated with a particular sex.
It is clear from the
Australian authorities that post-operative
transsexuals will normally be members of their
reassigned sex."
In
Summary
1. Australian men of transsexual
history (who have undergone irreversible
sex affirmation treatment) have the same right
to marry as other Australian men do.
2. Sex affirmation surgery does not
have to meet any predetermined standards of
either appearance or function in order to be
considered 'successful' or to have occurred.
3. The Australian culture (and Federal Courts
since Re Kevin) considers that men who
have undergone irreversible sex
affirmation treatment as being of their affirmed
male sex.
4. Re Kevin confirms the method of the
determination of the sex of an individual who
has experienced the intersex condition of
transsexualism for the purpose of marriage in
Australian common law.
5. If you were already married prior to sex
affirmation treatment, this marriage will remain
valid unless ended by divorce.
Further reading
Marriage
Information
Re
Kevin - Australasian Legal Information
Institute website — (2001)
Re
Kevin - Australasian Legal Information
Institute website — (2003)
Wallbanks
Legal [website]
The
information contained on this page is not legal
advice. Legal advice is dependent upon the specific
circumstances of each individual. Please consult
with qualified legal professionals for your
personal situation.
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Summary of Marriage Case
