Sydney , Australia — As we sprint towards Saturday's election finishing line - Attorney-General Daryl Williams and his opposition counterpart Robert McClelland, give their visions for our justice system, spelling out what they see as the role (and limits) of the Attorney General, the judiciary and lawyers. Also, for the first time, the Family Court has just upheld the validity of a marriage between a female-to-male transexual and his wife. The man's solicitor, Rachel Wallbank, describes the case and her own story. Transcript Damien Carrick: Now to politics and law on a very different level. Last month the Family Court upheld the validity of a marriage between a post-operative female-to-male transexual and his wife <http://www.austlii.edu.au/au/cases/cth/family_ct/2001/1074.html>. Courts in Australia have previously legally recognised a sex change for the purposes of the criminal law and Social Security law. But this is the first time, under the 1961 Marriage Act which defines marriage as a lifelong union between a man and a woman, that a court has found that when you're determining whether someone is a man or a woman, you don't only look at their gender at birth. Sydney solicitor Rachel Wallbank <http://www.wallbanks.com/> acted for the couple, Kevin and Jennifer. Rachel Wallbank: When the clients originally approached the Commonwealth to seek some confirmation that they were able to become married, the reply was in the negative, relying on an English 1970 decision of Corbett, and on that basis the Commonwealth advised them that they simply weren't allowed to enter into a valid marriage. At that point in time, or shortly after that, they were referred to me. It was known that I had an interest in Family Law, and in particular an interest in that issue. I think it's probably important at the outset of this interview to disclose that while I've been practising for over 20 years, and of course practice on daily basis in the Family Court <http://www.familycourt.gov.au/>, I'm a woman of transexual background myself, and so obviously the issue of the validity of marriage, and in particular whether the English case of Corbett which sought to deny marriage to people who had experienced transexualism, was an issue with which I was familiar. Damien Carrick: Until this decision, what was the case law in this area about the right of post-operative transexuals to marry? You talked about the Corbett decision from the UK; what was that decision and what logic did the judge in that case use? Rachel Wallbank: The case there was dominated by a decision of Justice Ulmrod in 1970. In that case, involving April Ashley, His Honour established what came to be referred to as a biological test for determining a person's sex, and if you accepted Justice Ulmrod's reasoning, you would say that in respect of a transexual, then the person's sex was to be determined for the purpose of marriage, at the date of the person's birth and that sex could never be subsequently altered or varied. In the case of April Ashley, at the time of her marriage, she was what can be termed a post-operative transexual in that she had undergone the hormonal and surgical treatments that were available at the time, in order to bring her body into conformity with her own mental identification of her sex. What Justice Ulmrod said was in effect, that because at birth her chromosonal signature included a Y chromosome, because at birth she had male gonads and genitalia, then she was essentially a male person and could not in any other way, shape or form, alter her sex during her life or marry in any other sex other than male. Notwithstanding of course that the evidence before him at the time was that she'd expressed the opinion consistently throughout her life, that she believed herself to be female and a woman, that she appeared and lived her life and was taken to be a female and a woman in every aspect. Damien Carrick: What were the legal ramifications of the line of logic in Corbett, what does that mean on the ground for people who are transexual? Rachel Wallbank: Well the result of Corbett is essentially inhumane <http://en.wikipedia.org/wiki/Corbett_vs._Corbett>. It essentially treats people who've experienced variation in the formation of their sex as human beings, differently, and denies them the right to marry. In Texas in a case of Littleton that was decided in 1999, the court in the United States following Corbett, found that a woman whose husband had died due to an allegation of professional medical negligence was unable to sue the doctors because it was found she wasn't entitled to be the man's wife, notwithstanding ten years of marriage, simply because she was a post-operative transexual. Similarly in Australia, in a case called C & D, that extended the reasoning in Corbett to inter-sex individuals, a man's marriage was found to be invalid because he had been born a so-called hermaphrodite, had all the operative procedures necessary to bring his body into conformity with his view of himself as a man, but was ultimately declared to be unentitled to marry anybody because Corbett would have decreed that he lacked the congruity of chromosonal characteristics and gonadal characteristics and genital characteristics that at birth were required to satisfy that decision of Corbett. <http://en.wikipedia.org/wiki/Legal_aspects_of_transsexualism> Damien Carrick: I asked Rachel Wallbank why was it important for Kevin and Jennifer to have a legally recognised marriage. Rachel Wallbank: There's nothing to distinguish my clients who were in their mid-30s, they have one infant child and another child on the way, both children as a result of their being approved as a heterosexual couple by Sydney IVF, they're paying off a mortgage, they live in the Western Suburbs, there's nothing to distinguish them from the average Australian, except that the husband is a so-called post-operative female-to-male transexual. Damien Carrick: I understand that in this court case there was evidence presented by I think something like 39 witnesses, many witnesses came forward to talk about their view of your client's perception, self-perception, his perception in the community, his perception by his workmates and by his family. Rachel Wallbank: When you're running court proceedings, you're trying to tell a story at its most simplest, and here, using those lay affidavits if you like, the affidavits of family, friends and average Australians who came in contact with both Kevin and Jennifer, his wife, was to show how natural it was for their friends, family and work colleagues to perceive Kevin as a man and to perceive Kevin and Jennifer as a fairly normal Australian couple. And as His Honour Mr Justice Chisholm said in his judgement, there was a vividness and concreteness to that particular evidence. For example, Jennifer's mother, of how she accepted Kevin as her daughter's husband. The quote that His Honour makes in the judgement is of Sylvia saying: There is no other man anywhere who I would prefer to have as my daughter's husband. Damien Carrick: In addition to the 39 affidavits from friends, workmates and family, lawyer Rachel Wallbank also presented a great deal of medical and scientific evidence. Rachel Wallbank: Each of those doctors, and I won't go into all the details, but come from a number of disciplines, and the medical evidence and the scientific evidence in the case had to bridge those disciplines. Cumulatively, they provided the evidence sufficient for His Honour to make the important finding that a human being's sexual identity is biologically derived as a result of the sexual differentiation of the brain, which like the genitalia and gonads, irreversibly differentiates in the process of a person's formation as a human being. Damien Carrick: So you're saying that there was evidence to say that a person's gender can be their true nature, their true gender, their true identity can be determined by looking at their brain and the way they think, as opposed to just the external genitalia? Rachel Wallbank: Yes, and in fact it's more simple than that. It's when someone says they're a male, or someone asserts they're femaleness, in the absence of any mental illness or mental problem, you can take that as an expression of the biological differentiation of the human brain. So it's in that context that the procedure called sex assignment or sex re-assignment, can be seen to be a process of rehabilitation, Damien, rather than any magical process, it's simply a rehabilitation of the individual's body in order to help bring it into harmony with the mind. Damien Carrick: So, what does this decision mean for both Rachel Wallbank and her clients? Rachel Wallbank: The applicants were able to argue in this case, and in his very powerful decision, Justice Chisholm was able to find that in the Australian context, Kevin, a so-called post-operative female-to-male transexual, was a man within the ordinary everyday meaning of that word, and that in applying that meaning to the law of marriage in Australia, His Honour was merely bringing that law into conformity with other Australian decisions concerning transexuals. You see, in finding that a person's sex cannot be determined by an arbitrary test, he allows for the fact that all the person's characteristics, including brain sex, lived sex, cultural sex, are all to be taken into account by way of a subtle determination of the person's social and biological sex. What I'm trying to explain is that this decision is more than just an important declaration of the law. My father served with the AIF in New Guinea and Borneo during the Second World War, Damien; he died in 1999, I loved him dearly. He was the one I took my life to for approval, he was a man of traditional values and he found my transition of public sex and sex reassignment very hard to take, I'll tell you. Even though he'd known about my problem since I was little. He would have little to do with me for a very long time, and it broke my heart. He wouldn't even display a photograph of me as a woman in his home. My alienation from the father and the family caused me great pain. Then one day, suddenly and out of the blue, he telephoned me. He just said, Rachel, all the pictures are up, come over and see. They can all work it out for themselves from now on. What he meant was, he had all the pictures up on the wall of me depicted as a little boy to a grown woman, and he told me that day how proud he was of me as the daughter I'd become and how pleased he was to see me happy. In this way, my father gave me the incalculable gift of his acceptance and his love. I tell you Damien, the moment has illuminated my whole existence. In the same way Justice Chisholm's judgement in this case, represents the same powerful act of acceptance and understanding for people who have experienced the difference of transexualism. Guests on this program Daryl Williams Attorney General Robert McClelland Shadow Attorney General Rachel Wallbank Sydney solicitor, family law specialist Citation Radio National. (6 November 2001) Sprinting to the finish line. www.abc.net.au/rn/talks/8.30/lawrpt/stories/s409275.htm http://www.mtra.org.au/press/01/1106.html