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<http://www.austlii.edu.au/au/cases/cth/family_ct/2001/1074.html>.
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 <http://www.familycourt.gov.au/>
- Chief Justice Alastair Nicholson, Justice John Ellis
and Justice Sally Brown - rejected the challenge
<http://www.austlii.edu.au/au/cases/cth/family_ct/2003/94.html>.
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 <http://www.wallbanks.com/>,
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 <http://www.w-o-m-a-n.net/>,
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".
