About the reKevin decisions

There were two main outcomes of the reKevin decisions:

1. the ordinary legal meaning of the word ‘man’ applies in Australia, when determining the sex of a person. This includes postoperative female to male transsexual males and can be applied for the purpose of the law of marriage; and
2. Australian law recognises there are cases where someone at birth may have had female gonads, chromosomes and genitals, at birth, but nevertheless is a man at the date of his marriage thereby moving beyond a strictly surgical test and towards a test that takes account of social, cultural and a broader range of biological factors including ‘brain sex’.(1)

Australian law considers post-operative transsexuals to be members of their affirmed sex.(2)

Summary

1. Affirmed males in Australia (who have undergone irreversible sex affirmation treatment) have the same right to marry as any other Australian male.
2. Sex affirmation surgery does not have to occured, nor does it have to meet any predetermined standards of either appearance or function in order to be considered ‘successful’.(3)
3. Due to the reKevin decisions, Australian legislation considers men who have undergone irreversible sex affirmation treatment to be male.
4. ReKevin confirms the method of the determination of the sex of an individual, who has experienced the intersex condition of transsexualism, for the purpose of marriage under Australian common law.(4)
5. If you were already married prior to sex affirmation treatment, your marriage will remain valid unless ended by divorce.

References

1. David F & Blight J (2004). Understanding Australia’s Human Rights Obligations In Relation To Transsexuals: Privacy And Marriage In The Australian Context, Deakin Law Review, 22.
2. Attorney-General for the Commonwealth v “Kevin and Jennifer” and Human Rights and Equal Opportunity Commission [2003] FamCA 94 (‘Re Kevin-Full Court’), para 329.
3. Wallbank R (2004b).
4. Attorney-General for the Commonwealth v “Kevin and Jennifer” and Human Rights and Equal Opportunity Commission [2003] FamCA 94 (‘Re Kevin-Full Court’), para 329.

page updated 10 June 2011