Sydney,
Australia — WHEN
is a marriage not a valid marriage? A hearing in the
Family Court this week is seeking to answer that question
in relation to the marriage of transsexual Kevin and his
wife, Jennifer.
The appeal, brought by
the federal Attorney-General Daryl Williams, questions
the legality of a court decision by Justice Richard
Chisholm on October 12 last year. Justice Chisholm had
declared valid the 1999 celebrant marriage of Kevin, a
female-to-male post-operative transsexual, and Jennifer
<http://www.austlii.edu.au/au/cases/cth/family_ct/2001/1074.html>.
The application to the
Family Court <http://www.familycourt.gov.au/>
came about when the couple sought a declaration to
confirm their celebrant marriage on August 21, 1999, and
the Registrar of Births, Deaths and Marriages in NSW
raised a validity issue. The Attorney-General then
contested the matter and initiated court action to
overturn Chisholm's decision on the grounds that only a
husband born as a male should be recognised under the
Marriage Act.
The case has been hailed
as an important comparative test for the legality of
same-sex marriages and has torn open a Pandora's Box of
central issues and associated factors.
The hearing was held
before a Full Bench of the Family Court on Monday and
Tuesday of this week, and a decision has been
reserved.
In simple terms, a
transsexual is a person whose psychological sex does not
match his or her physiological/biological sex. Many
transsexuals undergo surgery to bring their anatomical
sexual situation into line with their psychological
stance. The stumbling block in this case is whether
Kevin, the husband, was a man at the date of the
marriage. The applicants submitted that the husband was a
man for the purpose of the marriage law and that the word
"man" should be given its ordinary, contemporary
meaning.
However, legal counsel
for the Attorney-General submitted that the word "man"
should be given its meaning as at the date of the
Marriage Act 1961, and as it was formulated in the
British case Corbett v Corbett (otherwise Ashley)
1971. It was submitted that the decision in Corbett v
Corbett was correct and represented Australian law
that the husband at birth had female chromosomes,
genitalia and gonads and, for the purposes of the law of
marriage, he must be treated as a woman. The foundation
for Corbett v Corbett relies heavily on the
importance of gonads and chromosomes in the definition of
"male", whereas Chisholm considered that Corbett v
Corbett did not consider fully enough the importance
of brain sex of the person, nor their cultural or lived
sex.
Chisholm found that brain
sex was as important, if not more so, than the nature of
genitals and karyotypes. Before arriving at his decision
last year, he heard from several expert medical
witnesses, both internationally and locally, including
the Professor of Reproductive Medicine at Newcastle's
John Hunter Hospital, Professor William
Walters.
Walters gave evidence
that transsexualism is a biological condition in which
the sexual differentiation processes that occurred in the
brain are incongruous with those processes in the
gonads/and or chromosomes, and that this intersexual
condition can be successfully treated in most cases
through hormone therapy and surgery.
When contacted this week,
Walters said he would prefer not to comment further until
a decision was handed down.
During last year's
hearing, the judge found that Kevin lives and identifies
solely as a male, and is accepted as a male by his wife,
their families and friends, his employer and fellow
employees. After his surgery Kevin was issued with a
corrected birth certificate. He and Jennifer have had a
son through IVF with an anonymous sperm donor. Jennifer
is reportedly expecting another child. Kevin is named as
the father on the first child's birth
certificate.
The facts as heard in
court this week were that Kevin was identified as a girl
at birth. His genitalia and gonads were female at birth,
and he had, and continues to have, female (XX)
chromosomes.
The court heard that, for
as long as he could remember, Kevin had perceived himself
to be male. Despite pressure to dress and behave as a
girl, he wore boy's clothes whenever possible, refused to
play with girl's toys and basically "saw himself as a
boy" while growing up. He suffered harassment at school
because of his male attitude and appearance and, during
his adolescence and early adult years, Kevin felt
extremely alienated.
In mid-1995, after
reading about gender reassignment treatment, Kevin
embarked on hormone treatment in October 1995, leading to
the growth of course hair on his face, chest, legs and
stomach, and a deeper voice.
In November 1997, Kevin
underwent surgery to reduce his breasts to male size and
in September 1998, had a total hysterectomy with a
bilateral oophorectomy that constituted "sexual
reassignment surgery" under section 32A of the Births,
Deaths and Marriages Registration Act 1995 (NSW).
Consequently, the court heard, Kevin's body was no longer
able to function as a female, particularly for
reproductive or sexual purposes.
The director of the
Sexual Health Centre in Sydney, Professor Basil Donovan,
said that when clients visited the centre to talk about
transgender issues and possible gender reassignment
surgery, he began by talking to them to assess how
seriously they were considering a change. "We see people
aged from 16 through to 60. They often present very late
[30s and 40s]. It is difficult because we are so
conditioned to our gender.
"We do a basic assessment
and if it does look like they are serious, most surgical
units require a formal psychiatric assessment so we refer
them on for that.
"Gender reassignment is
not common. I'd see maybe one a month, a dozen through
the year. The ones who go on to surgery are fully
committed, but we have many dozens who come just to talk.
In fact, often they are just a bit confused about their
sexuality, rather than their gender," Donovan said. "Some
men, for example, may confuse the fact they are are
homosexually inclined with it being a gender issue, but
when you talk to them they actually do see themselves as
men, they just happen to be gay. It's not often clear
when you are young."
Donovan said the ratio of
males wanting to change their gender to female was far
more common (about 5 to 1) than females wanting to be
male. There were sometimes medical conditions requiring
the surgery, but these were normally done at a young
age.
Canberra-based Eros
Foundation coordinator Robbie Swan said the appeal and
subsequent hearing was "retrospective legislation". If
the appeal was upheld, it would drive that sector of the
community "underground", as it had done with the sex
industry.
Retrospectivity was
regarded as a horror, "an absolute nightmare", in areas
such as planning legislation, and this was no different,
he said. "This is a planning decision about people's
lives and now the rug has just been pulled out from under
them. It is just abhorrent for Howard, a Coalition
Government to look at retrospectivity they've sold out
their liberal principles.
"In a way, what they are
pushing for is a ban on marriages for people in these
situations. It's a ban and we all know what happens when
there's a ban placed on adult products it goes
underground.
"It's funny this has come
up because people in the sex industry have been talking
about applying for a celebrant's licence because there is
such a demand because people still have such difficulty
with discrimination in the churches.
"It's one of those things
people will start to try and get around the
law."
A spokeswoman from the
Canberra Hospital Sexual Health Service said that often
all that was needed for people experiencing transgender
issues was a "willing ear". "We are a starting point. We
offer a forum that is sympathetic, non-judgmental and
supportive."
Help and support were
available, she said. For example, the Transgender
Outreach Support program 0407 264 155, formerly known
as Seahorse, helps couples, individuals, families or
anyone dealing with transgender issues. The Gender
Centre in Sydney, at 75 Morgan Street, Petersham (02)
9569 2366 <http://www.gendercentre.org.au/>,
offers counselling, support and contact with like-minded
people.
She said the Kevin case
certainly had wide-ranging implications. "It will further
marginalise those who already feel different. Life is
hard enough as it is. Let's be humane and, for heaven's
sake, who are they hurting anyway?"
Women's Electoral Lobby
<http://www.wel.org.au/>
national chairwoman Sandy Killick said, "This type of
action by the Government is suggesting that a marriage
involving a transsexual is a second-class marriage in the
same way that a family headed up by a single mother, or
by lesbian parents are second-class families."
For a government that
professed to support the sanctity of marriage, it was an
extremely hypocritical move, she said.
"I think they see it
[legalisation of Kevin and Jennifer's marriage]
as a threat to the institution of marriage.
"It is so ironic. Here
you have two people who want to be together and want to
have their relationship upheld and their marriage made
legal and a government, purporting to support the
institution of marriage, rejecting them."
The Attorney-General's
office had no comment, and a spokesperson for the office
of the shadow attorney-general Robert McLelland said Mr
McLelland was "reluctant to comment while the case was
still before the court".
Meanwhile, Karen Gurney,
for TransGender Victoria, pointed out another
irony. The British Government recently announced it would
legislate to provide full legal recognition to British
transsexuals, including corrected birth certificates
(with all former gender and name references removed) and
the right to marry in their core gender
identity.
Similar action in
Australia would save a lot of heartache, and a
substantial amount in taxpayer-funded court costs, Ms
Gurney said. "Transsexual people are not deviants, nor
poor, confused mental cases. We just happen to have been
born with an uncommon physiological variance that can be
treated successfully."
