A DECISION in the Family Court of Australia regarding the transsexual marriage of Kevin and Jennifer could have far-reaching effects. This article looks at the background in relation to transsexuals and closely examines the reasoning used by Chisholm J in Re Kevin (Validity of Marriage of Transsexual).[1]

On 12 October 2001, Chisholm J in the Family Court of Australia (Sydney registry) handed down his decision in the case of Re Kevin,[2] in which it was held that a post-operative female-to-male transsexual was a “man” for the purposes of contracting a valid marriage. In his decision in Re Kevin, Chisholm J defined “transsexual” as being a person:

“who has some or all of the physical or biological characteristics of one sex, but who experiences himself or herself as being of the opposite sex, and has undergone hormonal and surgical treatments to change some of the physical characteristics in order to conform more closely to the opposite sex”.

The decision in Re Kevin runs counter to the English case of Corbett v Corbett[3] in which Ormrod J held that a person correctly identified at birth as being of one sex could not, for the purposes of marriage, be recognised as a member of the opposite sex.

Australia’s Attorney-General appealed the decision in Re Kevin to the Full Court of the Family Court, arguing that whether a person is a man or a woman for the purpose of marriage should be determined according to their sex at birth as otherwise the law would be burdened by uncertainty. Argument was heard in mid-February this year. At the time of writing, the Full Court of the Family Court had reserved its judgment – and this is expected to be handed down in late 2002 or early 2003. Given the extraordinary nature of the case from a legal, sociological, political and human rights perspective, there is a strong possibility that the case may ultimately be appealed to the High Court of Australia.

Background
In accordance with s51(xxi) and (xxii) of the Australian Constitution, the power to enact laws in relation to marriage and matrimonial causes lies with the Australian Parliament. The meaning of marriage in 1901 was, and remains today, the union of a man and a woman to the exclusion of all others, voluntarily entered into for life. Therefore, marriage is defined as a formal, monogamous, heterosexual union, in accordance with the classic definition of marriage in the English case of Hyde v Hyde and Woodmansee.[4] The definition of marriage in Hyde remains the current legal meaning of “marriage” in Australia today.

The case of Re Kevin called into question not the definition of marriage per se, but rather the accepted definition of what is a “man” and what is a “woman” for the purposes of marriage. To date, any discussion in Australia of what is a “man” or “woman” for this purpose has looked to gender identity at birth.[5] In essence, this means that the definition has relied heavily on biological factors – chromosomes, gonads and genitalia.

Before discussing the details of Re Kevin, it is instructive to explore the facts and decision in the seminal case of Corbett, which Chisholm J in Re Kevin considered at length, but did not follow. Corbett concerned the validity of the marriage of April Ashley, a post-operative male-to-female transsexual registered at birth as a male and raised as a male. The husband was Arthur Corbett, a biological male who prior to the marriage knew the facts of his wife’s gender transition. The marriage took place in Gibraltar in 1963. The couple were together after marriage for only 14 days, although their relationship before marriage had lasted for some three years. It was accepted from the evidence that the marriage had not, in law, involved a marital sexual consummation. Her husband later petitioned in England for a decree of nullity of the marriage.

Ormrod J found that there are at least four criteria for establishing the sex of a person, namely chromosomal, gonadal (that is, the presence or absence of testes or ovaries), genital (including internal sex organs), and psychological.[6] His Honour then found from the facts that according to the first three of these criteria, the respondent was male.[7] He found the respondent, however, to be effectively female in relation to the psychological test.[8] In his Honour’s opinion, heterosexual intercourse was an essential element of the normal marriage relationship, and therefore the question of sexual identity for the purposes of the law of marriage should be determined by biological criteria alone.[9] Accordingly, Ormrod J concluded that the respondent, April Ashley, was not a woman, but a biological male since birth, and found the marriage to be void. The long-standing finding of Corbett was recently affirmed by the England and Wales Court of Appeal (Civil Division) in Bellinger v Bellinger.[10]

Bellinger has been appealed to the House of Lords. However, on 11 July 2002 the European Court of Human Rights in Christine Goodwin v the United Kingdom (application no 28957/95) held that the lack of recognition of the applicant’s post-operative sex (which included her inability to marry) violated Article 8 (right to respect for private and family life) and Article 12 (right to marry and to found a family) of the European Convention of Human Rights. Accordingly, the UK is now required to ensure that its laws adequately protect the interests of post-operative transsexuals.

Re Kevin concerned an application for a declaration of marriage between a woman and a female-to-male post-operative transsexual. Chisholm J was asked whether a person’s sex must be determined solely by reference to genitalia, chromosomes and gonads at the time of birth, or whether other matters may be taken into account. His Honour also had to decide whether Corbett represented Australian law.

The applicants, who went through a ceremony of marriage on 21 August 1999, applied for a declaration of the validity of that marriage. The issue was whether the husband, a post-operative female-to-male transsexual, was a man at the time of marriage. The applicants submitted that the husband was a man and that the Court should declare the marriage to be valid. The Attorney-General intervened, submitting that the husband was not a man for the purpose of the law of marriage, and that the application should therefore be dismissed.

The Facts
In Re Kevin, the husband was identified as a girl at birth. His genitalia and gonads were female, and he had and continues to have female (XX) chromosomes. Despite the evidence of having female reproductive organs, the husband considered himself to be male. Despite pressure to dress and behave as a girl, he wore boy’s clothes and behaved in a way that was seen as distinctly male. Adolescence was “a time of pain and dread”.[11] From 1994, he generally presented as a male, wearing trousers and shirts to work.

In mid-1995, Kevin was presented with information about sex reassignment treatment, and he learned how others like him had “discovered the medical means to express their true sex as men”.[12] In the same year, Kevin was placed on hormone treatment, leading to a masculine pattern of hair growth. Two years later, he had surgery to reduce his breasts to male size. In September 1998, he continued his goal towards manhood by having a total hysterectomy with bilateral oophorectomy. The surgery constituted “sexual reassignment surgery” within the meaning of s32A of the Births, Deaths and Marriages Act 1995 (NSW). As a result of his surgery, his body was no longer able to function as that of a female, particularly for the purposes of reproduction and sexual intercourse.

Kevin and Jennifer met in 1996. Jennifer accepted Kevin as a man, was aware of his background, and supported his strong wish “to bring his body into harmony with his mind”.[13] In February 1997, the parties set up house together and became engaged to marry. Some months later, Kevin changed his given name from Kimberley to Kevin. In September of that year, the couple were successfully treated under an in-vitro fertilisation (IVF) program and Jennifer became pregnant by an anonymous sperm donor. In August 1999, Jennifer and Kevin were married, and a marriage certificate was issued.

At the time of marriage, Kevin behaved as a male and had the appearance of a male. Socially and at work, there was an acceptance of him as a man, and as a husband and father. Psychiatric support for Kevin’s position as a man was strong and definite. There was no evidence of psychosis or delusional disorder. Evidence was given that Kevin “presented as an intelligent, emotionally warm man who would be accepted socially as completely masculine”;[14] that his “brain sex or mental sex” was male; and that he “is psychologically male and that this has been the situation all his life”.[15]

The Decision
In granting a declaration that the marriage between Kevin and Jennifer was valid, Chisholm J inter alia held that for the purpose of ascertaining the validity of a marriage under Australian law, the question whether a person is a man or a woman is to be determined as of the date of the marriage. In dismissing Corbett, his Honour disagreed with Ormrod J’s proposition that whether a person is a man or a woman depends solely on a person’s biological sexual constitution, and rejected the “essentialist” view of sexual identity that individuals “have some essential quality that makes them male or female”.[16]

In acknowledging the meaning of “man” in the context of criminal law and social security law, and the conformity between those definitions and the context in Re Kevin, Chisholm J examined whether there might be “special considerations” for taking a different view in the context of the rule that a marriage be between a man and a woman. Counsel for the Attorney-General, Henry Burmester QC, argued that whatever the findings in relation to transsexuals in other spheres of Australian law, marriage should be treated separately.[17]

The special considerations identified in the Attorney-General’s submission can be described as (1) that marriage is a social institution having its origins in ancient Christian law; and (2) that it is intrinsically connected with procreation. His Honour fully accepted marriage as a social institution, and also its origins in Christian law. He did, however, point out that a harking back to ancient Christian law was somewhat artificial and of little help in the world of today.

His Honour also dismissed the second point that there is an intrinsic connection between marriage and procreation. As to this argument, Chisholm J observed: “If it means that the validity of marriage depends on some physical capacity for procreation, it is wrong. Marriages are perfectly valid where one or both parties are infertile, but the couple bring up children born through some form of artificial insemination, or acquired by adoption.”[18]

An important issue that was raised in Re Kevin related to concerns that a finding giving validity to the marriage of a transsexual would generate uncertainty. It was argued on behalf of the Attorney-General that the three-point biological test established in Corbett provides a permanent and clear answer to the question of whether a transsexual is a man or a woman.

According to the Attorney-General, departing from the principle in Corbett would cause practical difficulties, as it would become extremely difficult to establish where the line is to be drawn as to when a person actually changes sex. Would the person have to undergo reassignment surgery first, or could a person’s sex simply be judged according to how they are perceived within their community and by society in general?

Another point raised by the Attorney-General was that a departure from Corbett would enable individuals to change their sex based on personal whim and seek permission to marry according to their feelings or beliefs at a particular time. While Chisholm J agreed that the Corbett decision prevents this from occurring, and does maintain certainty in the law, his Honour found favour with the minority judgment of Thorpe LJ in Bellinger. In his judgment, Thorpe LJ expressed the view that a departure from Corbett would not “produce enormous practical and legal difficulties”.[19]

Gaining conviction from this statement of Thorpe LJ, Chisholm J considered that the supposed uncertainty and practical difficulty caused by the strict test in Corbett could be avoided by determining that one’s sex should be judged at the time when an application for a declaration of validity of marriage is made;[20] and that “the irreversible surgery that completes the sex-reassignment process provides a convenient and workable line for the law to draw”.[21] Accordingly, while those transsexuals who have undergone irreversible surgery may validly marry according to their psychological sex, a transsexual yet to have such surgery would not be entitled to marry someone of their same biological sex. This aspect of Chisholm J’s judgment is sure to raise questions as to what constitutes “irreversible surgery”.

Conclusion
It would be difficult to find a case argued with such thoroughness as Re Kevin. Every aspect and issue of the recognition of the rights of a post-operative transsexual were determined with expertise. The measured judgment of Chisholm J is compelling for its eloquence, and examination of legal, medical and sociological issues in relation to transsexualism and marriage.

If his Honour’s judgment is upheld on appeal, it will resonate throughout the common law world. No doubt it will draw criticism from those attached to the “essentialist” view of what is male and what is female; and many will feel the certainty of Corbett to be diminished irreparably. Nevertheless, the decision in Re Kevin seeks to deal in the most humane way possible with those suffering from a discontinuity between their biological sex and their psychological sexual identity.

Notes
EITHNE MILLS is a lecturer, School of Law, Deakin University. JAMES MCCONVILL is an articled clerk with Allens Arthur Robinson practising in energy and resources.

1. [2001] FamCA 1074.
2. See note 1 above.
3. See Corbett v Corbett (otherwise Ashley) [1971] P. 83 (Corbett).
4. (1886) LR 1 P & D 130 at 133.
5. A case in point was C & D (Falsely called C) (1979) 5 FamLR 636, which dealt with the issue of what sex a “true hermaphrodite” was. Bell J in the Family Court of Australia held that the individual was in law neither a man nor a woman.
6. Corbett at 100.
7. Note 5 above at 104.
8. Note 5 above at 104.
9. Note 5 above at 105-106.
10. [2001] EWCA Civ 1140 (17 July 2001).
11. Re Kevin, para [26].
12. Note 10 above, para [27].
13. Note 10 above, para [31].
14.  Note 10 above, para [43].
15. Note 10 above, para [46], quoting evidence from Dr Greenway.
16. For a discussion of the “essentialist” view of sexual identity see Re Kevin, para [108].
17. Note 10 above, para [282].
18. Note 10 above, para [287].
19. Note 10 above, para [195].
20. Note 10 above, para [299].
21. Note 10 above, para [322].

©Law Institute Journal, Sept 2002: 76(8). All Rights Reserved