Sydney,
Australia — Kevin and Jennifer consider
themselves a normal, married Australian couple. They have
two little boys, a mortgage, and a loving, extended
family. Kevin is a keen do-it-yourselfer who likes lots
of help from his boys: the elder of them copies Dad's
every move with his own plastic shovels, rake,
wheelbarrow, hammer, and drill.
This family likes to take
trips to the beach. They like playgrounds, barbecues and
riding bikes. The boys, aged three and one, love to hose
the family car almost as much as they love to hose each
other. They remain oblivious to the fact that the federal
Attorney-General, Daryl Williams, has twice tried to have
their parents' marriage ruled invalid.
Williams fears there is a
major principle at stake, for Kevin was born Kimberly.
Williams fears that if transsexuals are allowed to marry
as the sex they legally become through hormone treatment
and surgery, it places a big question mark over the idea
of marriage - what it means, and who is allowed to do
it.
But while Williams
believes Kevin was born a woman and can thus never
qualify as a husband, the Family Court has taken a
profoundly different view: that Kevin has always been a
man.
Kevin, 37, and Jennifer,
36, met in 1996, the year after Kevin had hormone
treatment and irreversible sex reassignment, including
breast reduction and a hysterectomy, allowing him to gain
a new birth certificate in 1997 declaring he was
male.
I
thought all my Christmases had come at once," says
Kevin of meeting Jennifer. "I was open and honest with
Jennifer about my predicament from the
beginning."
Jennifer says Kevin's
transsexual condition didn't make him seem "any less of a
man". On their wedding day in August 1999 before a civil
celebrant, she had been seven months pregnant with their
first child - both their children were conceived through
artificial insemination - and admits it was a stressful
day, considering the legal struggle they knew lay
ahead.
The couple, who live in
the western suburbs of Sydney and are uncomfortable with
the media attention (their names have been changed to
protect their identities), vow they will tell their boys
the truth about their father when the time is
right.
In the past,
transsexualism was seen as a psychological condition, and
transsexuals were considered to be making a choice to
change sex, in so far as electing to have sex
reassignment surgery. But the weight of recent medical
opinion is that transsexualism is biological, and a
natural, though uncommon, part of human sexual formation.
Transsexualism is thrust upon an individual, not
chosen.
In the journal
Nature in 1995, endocrinologists and sexologists
published a paper that established the new concept of
"brain sex" <http://www.symposion.com/ijt/ijtc0106.htm>.
Professors Gooren, Diamond, Walters and Walker argued
some people are born with a brain that recognises
themselves as a member of the sex opposite to that
indicated by their chromosomes, genitals, and gonads.
Given the brain sex theory is widely accepted in medical
circles - and now by the Family Court in a legal
precedent - those cries in the birthing suite of "it's a
boy" or "it's a girl" might not always be cut and
dried.
Kevin
was not born a woman," says Jennifer. "That is not the
language of our case, world-renowned experts, or any
of the judges. To talk about transsexualism from a
before/after angle is winding the clock back. A 'man
born a woman' belongs on Jerry Springer."
THE case of the
Commonwealth of Australia v Kevin and
Jennifer <http://www.austlii.edu.au/au/cases/cth/family_ct/2003/94.html>
began in 1998. The couple were making inquiries about
their plans to marry when they received an email from the
Attorney-General's Department.
I
am sorry we are unable to help you," read the email,
"but I am concerned that if you attempt to go ahead
with the course of action you suggest you are leaving
your partner open to criminal charges and the
possibility of jail and I hope you will take this into
consideration when making your decision ... Believe
me, as a married mother of four, marriage is not all
it is cracked up to be."
Jennifer says she found
the email "flippant, yet threatening; we were shocked
that an employee of the Government would casually reveal
her own bias, in writing". They also realised that they
were going to need a lawyer.
Kevin and Jennifer had
their first appointment with Rachael Wallbank
<http://www.wallbanks.com/>
on referral some weeks later. Her credentials as a
practitioner in family law impressed them. But Wallbank
also had every reason to empathise with their case: at
birth she had been declared male. Wallbank does not call
herself "a transsexual". She says that description
indicates a condition instead of a whole person. She
refers to herself as a "person who has experienced
transsexualism".
Wallbank accepted the
case on a pro-bono basis, and was later funded by the
Commonwealth when it became a test case. "I believed my
clients were legally married," she says.
It
was clear to me that the law of Australia had not yet
been declared on the subject of transsexualism and
marriage, that it was open to a court to do so. And if
Kevin could be recognised as male under criminal and
social security law, then why not under marriage law?"
Wallbank naturally had an
interest in the case "because of my own journey". Kevin's
plight was in some ways similar to her own. "There was
something very special about having experienced
transsexualism myself, which enabled me to present the
expert evidence about brain sex with certainty. I was
also able to express the effect of difference and
discrimination upon loved ones, having seen my own family
suffer."
When Wallbank changed
what she calls her "public sex" at 38, she had a lot to
consider. "I had my own legal practice, was considered a
white male, had three beautiful children, a nice house
and a relationship with my family that was important to
me.
Why
would I put everything I valued in the world at risk?
Well, the reason was I could not keep going, trying to
manufacture a male persona, when I've known since I
was five that I was female. It had become a
life-or-death decision."
In 1999, Wallbank applied
to the Family Court seeking a judgement validating Kevin
and Jennifer's marriage. In preparing the case, Wallbank
looked at similar cases overseas, but found that even the
most favourable judgements (notably those delivered in
New Zealand) had taken the line that transsexualism was a
"psychological malady". She wanted to argue
otherwise.
I
was certain someone's sex or knowledge of themselves
was determined between the ears, as per brain sex, and
not between the legs," she says. "The fact is there is
no other explanation for why people like Kevin and I
exist. There's no other explanation as to why someone
like me would undergo sex-affirmation
procedures."
Wallbank's argument that
transsexualism was an example of natural human diversity,
and nothing to do with mental illness, was accepted by
the court. In 2001, Kevin and Jennifer were legally
confirmed as husband and wife <http://www.austlii.edu.au/au/cases/cth/family_ct/2001/1074.html>.
The court ruled that because Kevin had an irreversible
sex re-assignment, he could marry as a man.
But that was not the end
of it. Because of the potentially far-reaching
consequences of the judgement, lawyers for the
Attorney-General appealed the decision to the Full Court
of the Family Court, and lost. Government lawyers in both
instances argued that a person's sex for the legal
purpose of marriage is determined at birth, and no amount
of reassignment surgery can alter that.
They also argued that a
person's brain sex cannot alter someone's legal status as
a man or a woman for the purpose of marriage.
It was, in part, a
technical argument that relied on an English court
decision of 33 years ago, a decision the court ruled was
not binding in Australia. Nor did the court accept the
argument that the Marriage Act of 1961 was intended as a
code to strictly define the terms "marriage", "man", and
"woman".
A spokeswoman for
Williams says the case raises serious issues about the
meaning of marriage, and the role of Parliament in
determining that meaning. The Government may appeal the
decision to the High Court. Its chances of success are
open to conjecture, although the High Court is seen as
being more conservative than the Family Court.
Whatever happens, there
will be a need now, says Wallbank, for the states and
territories to clarify their laws on births, deaths and
marriages, and on discrimination, so that in the case of
transsexualism, a person's legal sex, as delineated in
their original birth certificate, can be changed to
"correct mistakes". This, she argues, is a fundamental
human right.
If that happens, such
changes will need to untangle transsexualism from
transgenderism, which is described by Wallbank as "an act
of gender expression". The road ahead is unlikely to be
smooth or without confusion.
WHEN Kevin was a
very young child and still called Kimberly, his mother
would ensure he dressed as a girl on special occasions.
She made him stand next to his father naked, to see how
their anatomies differed. At school, children teased him
for wearing boys' jackets and pants, saying he was a
girl, so why would he dress like that?
He fought to defend
himself, and his three younger sisters. Family
photographs show Kimberly with pistols at age three - the
age Kevin says he knew himself to be male - and with a
soccer ball at age eight.
Family Court Justice
Richard Chisholm noted, in his 2001 judgement, a
photograph of the four children. The younger ones are
wearing pastel-coloured dresses and sandals, but the
eldest is wearing dark trousers and shoes, and what looks
like a boy's shirt.
"To my eye," said
Chisholm, "despite the shoulder-length hair, he looks as
much like a boy as a girl." There was never any confusion
for Kevin, though.
I
am a man, nothing more or less, just a man," he says.
"I am 'trans' nothing. Just a man who has the medical
condition, an example of human variation, known as
transsexualism.
"I
rehabilitated my physical characteristics and
corrected the mistake of public identity. There was no
transition for me personally. I have always been, and
always will be, male."
As for
Jennifer,
Kevin
is a husband, a father, the bloke next door. He's a
brother, an uncle, a much-loved son-in-law. He is an
admirable male role model. He is the kind of man I
hope my sons will become."
