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Case Note
James McConvill[*] and Eithne Mills[**]
What does it comfort any of us to insist that an individual shall be a man, when for the purposes of ordinary life that individual can only be, and be recognised, as a woman? What pride can there be for a law which vetoes the attitudes dictated by ordinary humanity?[1]
Those suffering from gender dysphoria have been described in the following simple language:
People with gender dysphoria or gender identity disorder live with a conviction that their physical anatomy is incompatible with their true gender role. They have an overwhelming desire to live and function in the opposite biological sex.[2]
The case of Re Kevin (Validity of Marriage of a Transsexual)[3] , a decision of the Family Court of Australia delivered on 12 October 2001, concerned the marriage of a post-operative female to male and a biological female. The Court was asked to grant a declaration of the validity of that marriage. The pivotal question to be determined was whether Kevin should be considered a man or a woman for the purposes of contracting a marriage under the Marriage Act 1961 (Cth). In granting a declaration of validity, Chisholm J refused to follow the seminal British case of Corbett v Corbett, 4 which determined that a person’s ‘true sex’ is fixed at birth and that a post-operative male to female transsexual remained a man for the purposes of the law regulating contract of marriage. In doing so, his Honour declined also to be persuaded by the recent United Kingdom case of Bellinger v Bellinger,[5] a decision of the Court of Appeal, which followed, albeit reluctantly, the principles underlying Corbett.
The Attorney-General of Australia appealed the decision of Chisholm J to the Full Court of the Family Court. The matter was heard in mid-February 2002. At the time of writing, judgment of the Full Court remains reserved. Given the extraordinary nature of the decision in terms of legal, sociological, political and human rights perspective, there is a strong possibility that the matter, ultimately, will be heard by Australia’s superior court- the High Court.
This article will discuss briefly the Australian legal context (other than marriage) in which sexual identity has been at issue; examine in detail the findings in Corbett, Bellinger, and Re Kevin, and conclude, in the opinion of the authors, that whatever the outcome of any present or higher appeal in the matter of Re Kevin, Chisholm J at first instance has delivered a judgment noteworthy for its humanity.
In accordance with s 51 (xxi) and (xxii) of the Australian Constitution,[6] the power to enact laws in relation to marriage and matrimonial causes lies with the Australian government. The meaning of marriage in 1901 was, and remains today, the union of a man and a woman to the exclusion of all others, voluntarily entered into for life. Therefore, marriage is defined as a formal, monogamous, heterosexual union, in accordance with the classic definition of marriage in the English case of Hyde v Hyde and Woodmansee.[7] The definition of marriage in Hyde remains the current legal meaning of ‘marriage’ in Australia today. This is evident from the statutory definition of this term in s 43(a) of the Family Law Act 1975 (Cth)[8] and in the Marriage Act 1961 (Cth) ss 46(1)[9] and 69(2).[10] The problem with restricting the term ‘marriage’ in s 51 (xxi) to the Hyde definition is that prima facie it prevents the Australian Parliament from regulating unions not falling into the narrow Hyde definition. It follows, therefore, that the Australian government has no power to legislate with respect to same-sex relationships.
To date, the High Court of Australia has not given any detailed consideration to the meaning of the term ‘marriage’ in s 51 (xxi) of the Australian Constitution. The few High Court cases that have considered the matter seem to have favoured the classic Hyde definition. For example, In Attorney-General (Vic) v Commonwealth, McTiernan J stated:
The term ‘marriage’ has its own limitations and Parliament cannot enlarge its meaning. In the context ...[of]... the Constitution ... the term ‘marriage’ should receive its full grammatical and ordinary sense: plainly in this context it means only monogamous marriage.[11]
In the more recent case of R v L (1991),[12] Brennan J appears to be of the view that society’s current appreciation of what constitutes marriage and the established legal definition of marriage are the same, for his Honour there referred to the general notion of marriage in traditional legal terms as the exclusive union of a man and a woman.
The effect, in a legal sense, of sexual reassignment has been adjudicated in the context of criminal law and social security law in Australia. The first criminal case is the New South Wales case of R v Harris and McGuiness,[13] and the second is the Victorian case of R v Cogley.[14] In R v Harris and McGuiness, the New South Wales Court of Criminal Appeal considered two separate appeals against conviction under s 81A of the Crimes Act 1900 (NSW) (now repealed) of being a male person procuring the commission of an act of indecency with another male person. In each case, the appellants were prostitutes. The significant difference between the two was that Harris had undergone surgical reassignment as a woman, whereas McGuinness had not. The majority of the Court held that Harris was not a ‘male person’ for the purposes of s 81A of the Crimes Act, although McGuiness was. It was said that, for the purposes of s 81A, sex is to be determined by a combination of psychological, sex identification and physical attributes and not by classification based merely on chromosomal features.
The Victorian case of R v Cogley concerned an appeal against conviction by a man found guilty of assault with intent to commit rape on a male-to-female transsexual, who had undergone sex reassignment surgery. In part, the appeal was against the finding of the trial judge that for the purpose of the offence charged, the victim was a woman. The trial judge stated:
I consider that the law should regard as a woman a male to female transsexual where core identity is established and where sexual reassignment surgery has taken place. I consider that both elements together are essential. I consider that core identity is a necessary but not sufficient condition in the findings of a male to female transsexual woman. [15]
The Full Court of the Supreme Court of Victoria dismissed the application. In relation to ‘core identity’, the Full Court understood the trial judge to mean the psychological personality or character of the person concerned. [16]
In Secretary, Department of Social Security v SRA,[17] the Full Court of the Federal Court of Australia followed the test in R v Harris and McGuiness for the purpose of determining who is a woman, and accordingly, who can be a wife for the purposes of the Social Security Act 1947 (Cth). The matter had come before the Court by way of appeal by the Department of Social Security from decision of the Administrative Appeals Tribunal who had found that the respondent was qualified under the Social Security Act to receive a wife’s pension as being a woman who is the wife of an invalid pensioner. The respondent was a male to female transsexual who had not undergone reconstructive surgery. The Full Court upheld the appeal, concluding that the respondent, not having undergone sexual reassignment surgery, could not be regarded as a woman for the purposes of the Social Security Act, and therefore could not be the recipient of a ‘wife's’ pension under that Act.
The case of Re Kevin called into question not the definition of marriage per se, but rather the classic definition of what is a ‘man’ and what is a ‘woman’. To date, any discussion in Australia of what is a ‘man’ or ‘woman’ for the purposes of contracting a marriage has looked to gender identity at birth.[18] In essence, this means that the definition has relied heavily on biological factors such as chromosomes, gonads and genitalia.
Before discussing the details of Re Kevin, it would be instructive to explore the facts and decision in the seminal case of Corbett, which Chisholm J in Re Kevin discussed at length but declined to follow, and the recent decision of Bellinger which applied the findings of Ormrod J in Corbett. The case of Corbett involved the validity of marriage of April Ashley, a post-operative male-to-female transsexual registered at birth as a male and raised as a male. As he grew up he had an overwhelming feeling that his correct gender was female. He underwent sex reassignment surgery in a clinic in Casablanca. The surgery was major. His testes and most of his scrotum were removed. An artificial vagina was fashioned from his penis. He developed breasts by the use of the female hormone oestrogen. In passing, it may be observed that April Ashley received the ultimate validation of her new physical image. She became a celebrated fashion model.
The husband was Arthur Corbett, a male who prior to the marriage knew the facts of his wife’s gender transition. The marriage took place in Gibraltar in 1963. The couple were together after marriage for only 14 days, although their relationship before marriage had lasted for some 3 years. It was accepted from the evidence that the marriage had not, in law, involved a marital sexual consummation. Her husband later petitioned in England for a decree of nullity on the ground that at the time of the marriage ceremony, April Ashley was a man.
Ormrod J found that there are at least four criteria for establishing the sex of a person, namely chromosomal, gonadal (that is, the presence or absence of testes or ovaries), genital (including internal sex organs), and psychological.[19] His Honour then found from the facts that according to the first three of these criteria, the respondent was male.[20] He found the respondent, however, to be effectively female in relation to the psychological test.[21] Ormrod J dwelt on the heterosexual nature of marriage, finding heterosexual intercourse to be an essential element of the normal marriage relationship, and therefore the question of sexual identity for the purposes of the law of marriage should be determined by biological criteria.[22] His Honour stated:
Having regard to the essentially heterosexual character of the relationship which is called marriage, the criteria must ... be biological, for even the most extreme degree of transsexualism in a male or the most severe hormonal imbalance which can exist in a person with male chromosomes, male gonads and male genitalia cannot reproduce a person who is naturally capable of performing the essential role of a woman in marriage.[23]
Justice Ormrod concluded that the respondent, April Ashley, was not a woman for the purposes of marriage, but a biological male since birth. Accordingly, his Honour found the marriage entered into on 10th of September 1963 to be void.
In the British case of Bellinger v Bellinger, the Court of Appeal was asked to decide whether the criteria for determining the sex of a post-operative male-to-female transsexual for the purposes of the law of marriage could still be applied. The case came on appeal from the High Court of Judicature (Family Division) where Johnson J had refused the petition by Elizabeth Ann Bellinger, a post-operative maleto-female transsexual, for a declaration under s 55 of the Family Law Act 1986 that her marriage to Michael Jeffrey Bellinger was valid at its inception and remained subsisting.
The history leading up to this case being tried is quite sad and warrants attention. The appellant, Mrs Bellinger, was born on 7 September 1946, and at the time of birth was correctly classified as being male. From an early age, however, the appellant had a deep inclination to be female, and as she grew up and developed, felt an increasing urge to live as a woman, and not as a man. Due to strong family pressure, at the age of 21 the appellant married a woman. Shortly thereafter, the marriage broke down and in 1971 the couple divorced. Following the divorce, the appellant assumed the dress and lifestyle of a woman. Eventually, she consulted Dr Randall, a consultant psychiatrist who assisted her through counselling and hormonal treatment. Finally, in February 1981 the appellant underwent gender reassignment surgery which involved the removal of her testicles and penis, and the creation of an artificial vagina. Although the surgery was considered to be complete, the appellant was still without a uterus or ovaries or any other biological characteristics of a woman. A report derived from a chromosomal test dated 8 April 1999 showed that the appellant had a Karyotype: 46, XY pattern- which is apparently a normal male Karyotype.
On 2 May 1981, only three months after the gender reassignment surgery was completed, the appellant went through a ceremony of marriage with Mr Bellinger, a widower. Mr Bellinger was fully aware of the appellant’s background and supported her in relation to this. Since the time of the ceremony of marriage, the appellant and Mr Bellinger had lived together as husband and wife.
The matter went before the Family Division of the Supreme Court of Judicature when the appellant petitioned a declaration that her marriage was valid. The British Attorney-General intervened under the provisions of s 59(2) of the Family Law Act, arguing that the appellant’s petition for declaration be refused on the basis that the words ‘male and female’ in s 11(c) of the Matrimonial Causes Act 1973 (which provides that a marriage is void on the grounds that the parties are not respectively male and female) are to be determined by reference to the strict biological criteria outlined in Corbett’s case.
In determining the validity of the petition, Johnson J considered the large amount of medical evidence that was presented by three experts in the field of gender identity disorder. The experts were largely in agreement that since the decision of Corbett in 1970, there had been a marked change in social attitude towards those suffering from gender dysphoria, and that there was the possibility that examining the brains of those experiencing gender dysphoria would reveal that the brain provides further indications of one’s gender. According to his Honour, however, this was not yet possible based on current medical science, and therefore the medical criteria applied in Corbett (chromosomal, gonadal and genitalia) remain valid today. His Honour determined that according to these criteria, the appellant was not a woman, and thus unable to contract a valid marriage. The petition of the appellant was, accordingly, dismissed on 2 November 2000. Johnson J appeared to feel constrained by precedent, and the current state of medical knowledge. In applying the Corbett biological test, His Honour, taking a legalistic, practical, approach stated:
There is now a distinct possibility that were it possible to do so, examination of the brain of a living individual would reveal further indications of gender. But that is not yet possible and the practical reality is that whatever may ultimately emerge from advances in medical science, the only criteria for determining the gender of an individual remain those identified in Corbett.[24]
The appellant subsequently applied to the Court of Appeal for reconsideration of the issue. The appeal was heard by Dame Elizabeth Butler-Sloss, P, Thorpe and Robert Walker LJJ. Butler-Sloss, P and Robert Walker LJ formed the majority in dismissing the appeal, while Thorpe LJ dissented. Despite the dismissal, sympathy for the position of the appellant was obvious. Butler-Sloss P and Walker LJ observed:
Behind these bare facts lies a human problem, which deeply affects a small minority of the population. In considering the
difficult medical and legal issues facing this Court, ...we are very much aware of the plight of those who, like the appellant, are locked into the medical condition of transsexualism, within the group described as gender dysphoria or gender identity disorder.[25]
According to the majority, the criteria established in Corbett could not be challenged. While the majority did not dismiss the fact that changes in social attitudes and advances in medical research has generated a growing momentum for recognition of transsexuals within the law, they were concerned about how these changes could be given proper recognition. It was the majority’s opinion that establishing a point at which a change in gender should be recognised would be extremely difficult and quite arbitrary. Accordingly, the majority held that the criteria established in Corbett must stand. The majority made it clear that Parliament, rather than the judiciary, must decide the point at which public policy should treat a person as being of the sex opposite to that which was assigned to them at birth[26] Thereafter, it would be for the courts to determine whether a person was male or female by assessing the facts of the individual case against a clear statutory framework. In their general conclusion, the majority stated:
As Lord Slynn said in Fitzpatrick, [27] when considering social issues in particular judges must not substitute their own views to fill gaps. In re F (In Utero) [1998] Fam 122, [1998] 2 FLR 307 the Court of Appeal (in a wholly different context), had to consider the legal position of the foetus in a wardship application designed to make the unborn child a ward of court. Balcombe LS said at page 144 or 325:
‘If the law is to extended in this manner, so as to impose control over the mother of an unborn child, where such control may be necessary for the benefit of the child, then under our system of parliamentary democracy it is for Parliament to decide whether such controls can be imposed and, if so, subject to what limitations or conditions.’
Those observations, we would respectfully suggest, are equally apposite to the present appeal.[28]
The majority noted, however, that little or nothing had been done to put into place the recommendations made by the Interdepartmental Working Group on Transsexual People. The Interdepartmental Working Group identified three options for the future: either to leave the current situation unchanged; issue birth certificates showing the new name and possibly, gender; or to grant full legal recognition of the new gender subject to certain criteria and procedures. It would appear from the majority judgment that the recommendations were not acted upon either by the Attorney-General, or any government department. Nor was there a consultation paper prepared for public discussion. In lamenting this state of affairs, the majority stated:
To our dismay, we were informed that no steps whatsoever have been, or to the knowledge of Mr Moylan, were intended to be, taken to carry this matter forward. It appears, therefore, that the commissioning and completion of the Report is the sum of the activity on the problems identified both by the Home Secretary in his terms of reference, and by the conclusions of the members of the Working Party. That would seem to us to be a failure to recognise the increasing concerns and changing attitudes across Western Europe which have been set out so clearly and strongly in judgments of Members of the European Court at Strasbourg, and which in our view need to be addressed by the United Kingdom.[29]
In his dissenting judgment, Thorpe LJ said that while Ormrod J's seminal judgment in Corbett's case was undoubtedly right when given in 1970, subsequent medical and social developments had ‘rendered it wrong in 2001’.[30] Thorpe LJ continued by stating the range of rights claimed by transsexuals fell across a number of divisions of the justice system, however the claim of the appellant evidently lay in the territory of the family justice system. According to his Lordship:
That system must always be sufficiently flexible to accommodate social change. It must also be humane and swift to recognise the right to human dignity and to freedom of choice in an individual's private life. One of the objectives of statute law reform in this field must be to ensure that the law reacted to and reflected social change. That must also be an objective of the judges in this field in the construction of existing statutory provisions. There were not sufficiently compelling reasons, having regard to the interests of others affected or, more relevantly, the interests of society as a whole, to deny this petitioner legal recognition of her marriage.[31]
The case of Re Kevin concerned an application for a declaration of marriage between a woman and a female-to-male post-operative transsexual. Justice Chisholm was asked whether a person’s sex must be determined solely by reference to genitalia, chromosomes, and gonads at the time of birth or whether other matters may be taken into account. His Honour also had to decide whether Corbett, which had just recently been upheld by the Court of Appeal in Bellinger, represented Australian law.
The applicants, who went through a ceremony of marriage on the 21st of August 1999, applied for a declaration of the validity of that marriage. The issue involved was whether the husband was a man at the date of the marriage. The question arose because he was a post-operative female-to-male transsexual. The applicants submitted that the husband was a man for the purpose of marriage law, and that the court should declare the marriage valid. The Attorney-General for Australia intervened, submitting that the husband was not a man for the purpose of contracting a marriage under the Marriage Act 1961 (Cth), and that the application should therefore be dismissed. The Attorney-General approved of the finding in Corbett, and maintained that Chisholm J should follow the reasoning in that case.
In Re Kevin, the husband was identified as a girl at birth. His genitalia and gonads were female and he had, and continues to have, female (xx) chromosomes. Despite the evidence of having female reproductive organs, the husband considered himself to be male. Notwithstanding pressure to dress and behave as a girl, he wore boy’s clothes and behaved in a way that was seen as distinctly male. Adolescence was ‘a time of pain and dread’.[32] The onset of puberty emphasised the internal feminisation of his body, and contrasted with his male attitude and appearance. Socially, he was isolated and unable to express his thoughts and true feelings. From 1994, he generally presented as a male, wearing trousers and shirts to work. In mid-1995, Kevin was presented with information about sex reassignment treatment, and he learned how others like him had ‘discovered the medical means to express their true sex as men.’[33] In the same year, Kevin was placed on hormone treatment, leading to a masculine pattern of hair growth. He developed coarse hair growth on his face and other parts of his body, and developed a deeper voice. Two years later, he had surgery to reduce his breasts to male size. In September 1998, he continued his goal towards manhood by having a total hysterectomy with bilateral oophorectomy. The surgery constituted ‘sexual reassignment surgery’ within the meaning of s 32A of the Birth, Deaths and Marriages Act 1995 (NSW). As a result, his body was no longer able to function as that of a female, particularly for the purposes of reproduction and sexual intercourse.
Kevin and Jennifer met in 1996. Jennifer accepted Kevin as a man, was aware of his background, and supported his strong wish ‘to bring his body into harmony with his mind’.[34] In February 1997, the parties set up house together and became engaged to marry. Some months later, Kevin changed his given name from Kimberley to Kevin. In September of that year, the couple were successfully treated under an in-vitro fertilisation (IVF) program and Jennifer became pregnant by an anonymous sperm donor. Soon after, Jennifer changed her surname to that of Kevin. In November 1999, Jennifer gave birth to a baby boy. Shortly before the birth, Kevin had obtained a new birth certificate in which his gender was shown as male. In August 1999, Jennifer and Kevin were married by a marriage celebrant aware of the relevant history of the parties. A marriage certificate was issued.
At the time of marriage, Kevin behaved as a male, had the appearance of a male and was eligible to receive an Australian passport showing his masculine name and stating his sex as male. Socially and at work, there was an acceptance of him as a man, and as a husband and father. Psychiatric support for Kevin’s position as a man was strong and definite. There was no evidence of psychosis or delusional disorder. Evidence was given that Kevin ‘presented as an intelligent, emotionally warm man who would be accepted socially as completely masculine’[35] ; that his ‘brain sex or mental sex’ was male; and that he ‘is psychologically male and that this has been the situation all his life’[36] .
In granting a declaration that the marriage between Kevin and Jennifer was valid, Chisholm J inter alia held that for the purpose of ascertaining the validity of a marriage under Australian law, the question whether a person is a man or a woman is to be determined as of the date of the marriage. In dismissing Corbett, his Honour disagreed with Ormrod J’s proposition that whether a person is a man or a woman depends solely on a person's biological sexual constitution, and rejected the ‘essentialist’ view of sexual identity that individuals ‘have some essential quality that makes them male or female.’[37] He was scathing of the fundamental conclusion apparent in Corbett that congruent biological factors exclusively determine whether a person is a man or a woman.
His Honour stated:
What is remarkable about this proposition is that nothing has been said to support it. No relevant policy or principle is advanced. No authorities are cited to show, for example, that it is consistent with other legal principles. This lack of any supporting argument has been obscured by a definitional sleight of hand, using the term ‘true sex’. The use of this language creates the false impression that social and psychological matters have been shown to be irrelevant. In truth, they have simply been assumed to be irrelevant. To this point in the judgment, therefore, the assertion that the legal criteria for determining whether a person is a man or a woman for the purpose of marriage is the person's ‘biological sexual constitution’ is quite unsupported.[38]
In dealing with the processes of sexual development and identification, his Honour stressed the emerging expert evidence that brain development is an important determinant of a person's sense of being a man or a woman. His Honour referred to the fledgling nature of the study of ‘brain sex’ as a manifestation of a person's self-image as ultimately the sole or true indicator of a person's true sex. His Honour placed some significance on ‘brain sex’ as being a determinant of one's sexual identity, but noted that it was not the key determinant.[39] In this respect, Chisholm J quoted from Professor Diamond, in which he writes that there is:
emerging evidence... that transsexualism is related to some known biological factors. However, at this stage science can not say so with certainty. It is likely that as science progresses, however, we will learn the nature of brain and sex determination in transsexuals, as we now know for many other human intersex conditions.[40]
Justice Chisholm was equally dismissive of Ormrod J's finding in Corbett as to the ‘essential role of a woman in marriage’[41] , asking ‘[W]hat is the ‘essential role of a woman in marriage? Does it require a capacity for sexual activities? If so, precisely which activities? Is a woman who is unable to have genital intercourse because of illness or disability unable to perform her ‘essential role’? Further, why should it be assumed that the ‘essential role of a woman’ in marriage is concerned merely with matters of sex and biological sexual constitution?’.[42] His Honour quoted Gordon Samuels,
There is no reason to suppose that she could not provide the companionship and support which one spouse ordinarily renders to the other. She could not conceive and bear children. But it is not the law that marriage is not consummated unless children are procreated or that procreation of children is the principal end of marriage. Hence the female spouse's ability or willingness to produce children is not a necessary incident of a valid marriage.[43]
In acknowledging the meaning of ‘man’ in the context of criminal law and social security, and the conformity between those definitions and the context with Re Kevin, Chisholm J explored whether there might be ‘special considerations’ which would justify taking a different view in the context of the rule that a marriage be between a man and a woman. Counsel for the Attorney-General, Mr Henry Burmester QC, argued that whatever the findings in relation to transsexuals in other spheres of Australian law, marriage should be treated separately. Mr Burmester QC submitted:
As the Australian courts have observed, the laws and society's acceptance of a person's sex in the context of marriage involves ‘special considerations’. These considerations are different to those relevant to determining a person's gender identity in other contexts such as social security and criminal law. Marriage in Australia is a social institution, having its origins in ancient Christian law and is intrinsically connected with procreation. These origins cannot be ignored in interpreting the Marriage Act. Given these origins, the genotype of the person, and the genital and gonadal features of the parties to a marriage are legal significant.[44]
The special considerations identified in the Attorney-General's submission can be described as (i) that marriage is a social institution having its origins in ancient Christian law, and that (ii) that it is intrinsically connected with procreation. His Honour fully accepted marriage as a social institution, and also its origins in Christian law. He did, however, point out that a harking back to ancient Christian law was somewhat artificial and of little help in the world of today.
In relation to the point (i), his Honour stated:
If, as I have held, the question is to find the current meaning of an ordinary word ‘man’, I do not see any reason why resort should be had to ancient law rather than contemporary understandings. ... I do not see how resort to ancient Christian law or beliefs can assist in determining the meaning of the word ‘man’ for the purpose of the law of marriage in the year 2001.[45]
His Honour also dismissed the second point that there is an intrinsic connection between marriage and procreation. As to this argument, Chisholm J observed:
If it means that the validity of marriage depends on some physical capacity for procreation, it is wrong. Marriages are perfectly valid where one or both parties are infertile, but the couple bring up children born through some form of artificial insemination, or acquired by adoption.[46]
In relation to issues specific to marriage, his Honour concluded by stating:
While the idea that marriage might involve ‘special considerations’ has been referred to, I have not found any discussion that identifies any considerations that might compel the result that marriage law should resist the humane and practical trend to accept the reality of gender reassignment. ... I cannot see, therefore, that there is any substance in the argument that there are special considerations applicable to marriage that would mean that the word ‘man’ should be given a special definition for the purpose of marriage law. On the contrary, I agree with the applicants’ submission to give the word ‘man’ its ordinary meaning, and thus to uphold the validity of this marriage, would be entirely in accord with the provisions of section 43 of the Family Law Act 1975 (Cth).[47]
One important issue that was raised in Re Kevin related to concerns that a finding giving validity to the marriage of a transsexual would result in a great deal of uncertainty. It was argued on behalf of the Attorney-General that the three-point biological test established in Corbett provides a permanent and clear answer to the question of whether a transsexual is a man or a woman. According to the Attorney-General, departing from the principle in Corbett that sex is determined at the time of birth would cause practical difficulties, as it would become extremely difficult to establish where the line ought to be drawn as to when a person changes sex. Would the person have to undergo reassignment surgery first, or could a person’s sex simply be judged according to how they’re perceived within their community and society in general?
Another point raised by the Attorney-General was that a departure from Corbett would enable individuals to change their sex according to personal whim and seek permission to marry according to their feelings or beliefs at a particular time. While Chisholm J agreed that the Corbett decision prevents this from occurring, and does maintain certainty in the law, his Honour found favour with the minority judgment of Thorpe LJ in his dissenting judgment in Bellinger. In his judgment, Thorpe LJ expressed the view that a departure from Corbett would not ‘produce enormous practical and legal difficulties’[48] , and in dealing with the argument of practical difficulties that might present themselves if Corbett is dismissed, said:
In assessing how formidable are the difficulties ..., we can sure take some comfort from the knowledge that within wider Europe many states have recognised the transsexual’s right to marry in the acquired gender. Although different jurisdictions have adopted a widely differing range of responses ... there seems to be no evidence that they have encountered undue difficulty ...49
Gaining conviction from the observations of Thorpe LJ, Justice Chisholm considered that the supposed uncertainty and practical difficulty of departing from the strict test in Corbett could be avoided by use of a test wherein one’s sex should be determined at the time when an application for a declaration of validity of marriage is made,[50] and that ‘the irreversible surgery that completes the sex-reassignment process provides a convenient and workable line for the law to draw.’[51] Accordingly, while those transsexuals who have undergone irreversible surgery may validly marry based on their desired sex, a transsexual yet to have such surgery would not be entitled to marry someone of their same biological sex. This aspect of Chisholm J’s judgment is sure to raise the question of what constitutes ‘irreversible surgery’ for the purposes of Australian marital law. An interesting aspect of the case to consider is that, while the surgery that Kevin had undertaken meant that his body was no longer able to function as a female, Kevin had elected not to have further surgery involving the construction of a penis or testes, due to the complexity, expense and risk of complication involved.[52] Justice Chisholm still, however, decided that Kevin had made the transition from ‘woman’ to ‘man’ for the purposes of the law of marriage in Australia. It appears, therefore, that irreversible surgery means that the process of sex reassignment must be at a stage in which it is no longer possible for one’s body to function in their original biological sex, rather than having the result that one’s body has the ability to function as their psychological sex. There must, accordingly, be a ‘match’ between a person’s psychological sex and physical aesthetics.
It would be difficult to find a case argued with such thoroughness as Re Kevin. Every aspect and issue raised by the recognition of the rights of those with gender dysphoria was considered with care and thought. The measured judgment of Justice Chisholm is compelling for its eloquence, and dedicated examination of the legal, medical and sociological issues raised by the facts of Re Kevin. If his Honour’s judgment is upheld on appeal, it will resonate throughout the common law world. No doubt it will draw criticism from those attached to the ‘essentialist’ view of what is male and what is female; and many may feel that the certainty of the Corbett decision has been diminished irreparably. Nevertheless, the decision in Re Kevin seeks to deal in the most compassionate way possible with those suffering from a discontinuity between their biological sex and their psychological sexual identity. This decision will stand as a monument to modern thought of what it is to be human.
[*] Allens Arthur Robinson Lawyers, Melbourne.
[**] Lecturer, Deakin University School of Law.
[1] R Green, ‘Transsexualism and Marriage’ (1970) 120 New LJ 210, quoted in Re Kevin (Validity of Marriage of Transsexual) [2001] FamCA 1074 (12 October 2001) (‘Re Kevin’), para [157]. The Re Kevin judgment is available on-line at: <http://www.familycourt.gov.au/judge/2001/html/rekevin_text.html>
[2] Report of the Interdepartmental Working Group on Transsexual People, April 2000, United Kingdom Home Office (‘Interdepartmental Working Group’).
[3] [2001] FamCA 1074 (Re Kevin).
[5] Bellinger v Michael Jeffrey Bellinger [2001] EWCA Civ 1140 (17th July 2001) (‘Bellinger’). The Bellinger judgment is available on-line at: <http://www.bailii.org/ew/cases/EWCA/Civ/2001/1140.html>
[6] Constitution of the Commonwealth of Australia Act 1900 (Imp).
[7] (1886) LR 1 P &D 130 at 133. See E Mills, Butterworths Tutorial Series: Family Law (2001) at 38.
[8] Section 43(a) of the Family Law Act 1975 (Cth) provides:
The Family Court shall, in the exercise of its jurisdiction under this Act, and any other court exercising jurisdiction under this Act shall, in the exercise of that jurisdiction, have regard to:
(a) the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life;
[9] Section 46(1) of the Marriage Act 1961 (Cth) provides:
Subject to subsection (2), before a marriage is solemnized by or in the presence of an authorized celebrant, not being a minister of religion of a recognized denomination, the authorized celebrant shall say to the parties, in the presence of the witnesses, the words:
‘I am duly authorized by law to solemnize marriages according to law. Before you are joined in marriage in my presence and in the presence of these witnesses, I am to remind you of the solemn and binding nature of the relationship into which you are now about to enter. Marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life; or words to that effect.’
[10] Section 69(2) of the Marriage Act 1961 (Cth) provides:
The marriage officer shall, before the marriage is solemnized, say to the parties, in the presence of the witnesses, the words:
‘I am authorised by the Marriage Act 1961 of Australia to solemnize marriage outside Australia. Before you are joined in marriage in my presence and in the presence of these witnesses, I am to remind you of the solemn and binding nature of the relationship into which you are now about to enter. Marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life’; or words to that effect.’
[11] [1962] HCA 37; (1962) 107 CLR 529 at 549 (the Marriage Act case)
[12] [1991] HCA 48; 15 FamLR 122 at 127
[14] [1989] VicRp 70; [1989] VR 799.
[15] Quoted in R v Cogley [1989] VicRp 69; [1989] VR 789 at 803.
[16] Ibid.
[17] [1993] FCA 573; (1993) 118 ALR 467.
[18] A case in point was C &D (Falsely called C) (1979) 5 FamLR 636, which dealt with the issue of what sex a ‘true hermaphrodite’ was for the purposes of Australian marital law. Justice Bell in the Family Court of Australia held that the individual was in law neither a man nor a woman.
[19] Corbett v Corbett (otherwise Ashley) [1971] P. 83 at 100.
[20] Ibid, at 104.
[21] Ibid.
[22] Ibid, at 105-106.
[23] Ibid, at 106. See A Dickey, Family Law (4th edition, LBC, 2002) at 147-148.
[24] See Bellinger, para [8].
[25] Bellinger, para [2].
[26] Bellinger, para [105].
[27] Fitzpatrick v Sterling Housing Association Limited [2001] 1 AC 27.
[28] Bellinger, para [106].
[29] Bellinger, para [96].
[30] Bellinger, para [155].
[31] Bellinger, para [160].
[32] Re Kevin, para [26].
[33] Ibid, para [27].
[34] Ibid, para [31].
[35] Ibid, para [43].
[36] Ibid, para [46], quoting evidence from Dr Greenway.
[37] For a discussion of the ‘essentialist’ view of sexual identity see Re Kevin, para [108].
[38] Ibid, para [85].
[39] Ibid, para [249]
[40] Ibid, para [243].
[41] See Corbett v Corbett (otherwise Ashley) [1971] P.83 at 106.
[42] Re Kevin, para [93].
[43] See Gordon Samuels, ‘Transsexualism’ (1983) Australian Journal of Forensic Sciences 57 at 58.
[44] Re Kevin, para [282].
[45] Re Kevin, para [285].
[46] Ibid, para [287].
[47] Ibid, para [290].
[48] Bellinger, para [195].
[49] Re Kevin, para [301].
[50] Ibid, para [299].
[51] Ibid, para [322].
[52] Ibid, para [31].
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