Sydney, Australia — “Kevin” and “Jennifer” would have been justified in crowing after the Federal Government’s attempt to destroy their marriage ended in failure on Friday. Instead, the Sydney couple at the centre of a ground breaking legal case were dignified and restrained after their extraordinary victory against the full forces of the Government.
Our marriage has been described as a ‘transsexual marriage’, but in fact it is just an ordinary marriage, a mix of challenges, triumphs and joy, as other marriages are,” they said in a media statement.
“We attract no special attention, we seek no special treatment. We are a typical Australian couple, an average man and woman, raising our precious children responsibly in a loving home. One of us happens to have a medical condition, an example of human variation, known as transsexualism.”
Kevin was born a female but had hormone treatment and a sex-change operation. His NSW birth certificate and passport both state that he is male. He married Jennifer in August 1999, and the couple have had two children through IVF.
In October 1999, the couple applied to the Family Court to validate the marriage, and in 2001 Family Court Justice Chisholm upheld its validity.
Federal Attorney-General Daryl Williams challenged the decision on the grounds that Kevin was not a man and therefore his marriage to Jennifer was invalid.
On Friday, the Full Bench of the Family Court – Chief Justice Alastair Nicholson, Justice John Ellis and Justice Sally Brown – rejected the challenge. They found that, in determining a person’s sex for the purpose of marriage, the law should have regard to all the biological characteristics of a person, including “brain sex”, as well as cultural characteristics.
“A child’s sex cannot be finally determined at birth and (such) a determination should not be immutable,” their judgement said.
The couple’s lawyer, Rachael Wallbank, herself a woman of transsexual background, described the judgment as “extremely powerful and far-reaching in its wisdom”. “I hope people can begin to appreciate the incredible courage demonstrated by Kevin and Jennifer in their bringing of this case and seeing it through both the orignal hearing and this appeal,” she said.
The decision has also been hailed by human rights, transgender and transsexual groups.
Karen Gurney, a spokesperson for WOMAN, a group for transsexual women, said the judgement would help to ensure that “people with transsexualism eventually obtain full legal and civil status in their affirmed sex and thereby enjoy the same rights to privacy, dignity, family and personal freedom that others in society just take for granted”. The Federal Government was not so pleased with the result.
A spokesperson for Williams said last week the government would consider seeking special leave to appeal against the decision in light of the importance of these issues”.