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TranssexualsRe Kevin and the Validity of Marriage of a Transsexual
Ian Ireland
Law and Bills Digest Group
12 February 2002
Introduction
It is a requirement of a valid ceremony of marriage under the Marriage
Act 1961 (Cwlth) that the parties be a male and a female at the date
of their marriage. On 12 October 2001 Justice Chisholm of the Family Court
of Australia handed down his decision in Re Kevin (validity of marriage
of transsexual) [2001] FamCA 1074 which found that a post-operative
female to male transsexual had validly married.
Facts
The husband (Kevin) between October 1995 and September 1998 had undergone
complete sexual reassignment surgery. He met his current partner (Jennifer)
in 1996. She perceived him as a man and they started living together in
February 1997. She was aware of his transsexual situation. In September
1997 the couple applied successfully to an IVF program and Jennifer became
pregnant by an anonymous sperm donor. In March 1998 Jennifer changed her
family name to Kevin's. In October 1998 Kevin obtained a new birth certificate
on which his sex was shown as male.
Kevin was eligible for a passport showing his changed name and stating
his sex as male. Kevin had been treated as a man for a variety of legal
and social purposes, including by his employer, Medicare, the Tax Office,
banks and clubs. Kevin's family, friends and work colleagues accepted
him as a man, husband and a father.
Psychiatric examination of Kevin revealed no evidence of psychosis or
delusional disorder.
In mid 1999 Kevin and Jennifer took formal steps to get married. They
gave the necessary notice to an authorised marriage celebrant, and each
made a statutory declaration under the Marriage Act 1961 (Cwlth)
stating that they believed that there was no legal impediment to the proposed
marriage. On 21 August 1999, the celebrant issued a Certificate of Marriage.
Kevin and Jennifer applied for a declaration as to the validity of their
marriage and the Commonwealth opposed that application. At issue was the
question of whether the husband was a man at the date of the marriage.
DecisionKey Findings
- The words 'man' and 'woman' when used in legislation have their ordinary
contemporary meaning according to Australian usage and that meaning
includes post-operative transsexuals as men or women in accordance with
their sexual reassignment.
- Corbett v. Corbett (otherwise Ashley) [1971] P 83 does
not represent Australian law to the extent that there may be circumstances
in which a male who at birth had female gonads, chromosomes and genitals
may nevertheless be a man at the date of his marriage.
- On the facts of the case, the husband at birth had female chromosomes,
gonads and genitals, but was a man for the purpose of marriage law at
the time of marriage having regard to all the circumstances and in particular:
- he had always perceived himself to be a male; he was perceived by
those who knew him to have had male characteristics since he was a young
child;
- at the time of marriage he was perceived as a man, and accepted as
a man by family, friends and work colleagues;
- he was accepted as a man for a variety of social and legal purposes;
and
- his marriage as a man was accepted in full knowledge of his circumstances
by family, friends and work colleagues.
Corbett
The leading English case on the question of who is a man and who is a
woman for the purpose of the law of marriage first arose in the Corbett
v Corbett (otherwise Ashley) [1971] P 83. Ormrod J in that case found
that the question of sexual identity for the purposes of the law of marriage
should be determined by biological criteria, that is, by solely reference
to chromosomal, gonadal and genitals. Thus in that case, the fact that
April Ashley had subsequently undergone sexual reassignment surgery was
irrelevant. That test was referred to with approval by Bell J in the leading
Australian case of In the Marriage of C and D (falsely called C)
(1979) 35 FLR 340.
Justice Chisholm in Re Kevin held that Corbett does not
represent Australian law to the extent that congruent biological factors
exclusively determine whether a person is a man or woman.(1)
He held that:
- the existing test is not supported by any relevant principle, policy
or authority.(2)
What is a 'man'?
The Commonwealth argued in Re Kevin that the meaning of the word
'man' in the Marriage Act 1961 (Cwlth) should be taken to be the
meaning that would have been given to the word when the legislation was
passed in 1961 and that that was the meaning stated in Corbett.(3)
Justice Chisholm was of the opinion that:
- available legal authorities do not show that there is any general
rule of construction that ordinary words should be given the meaning
they had at the time the legislation was made;
- there was no convincing reason to conclude that the legislature in
1961 would have had in mind, or should be deemed to have had in mind,
a definition of 'man' that incorporated the Corbett approach;
- it was extremely unlikely that the legislature in 1961 would have
envisaged transsexuals and it would be highly artificial to proceed
on the basis that they did think about it and wished to incorporate
a specific definition invented ten years after the legislation became
law; and
- there was no suggestion in the legal authorities that the right approach
to determining the meaning of 'man' and 'woman' is to ignore medical
knowledge and base the decision on what the legislature might have thought
the words meant at the time of the relevant legislation.(4)
International legal developments
Justice Chisholm in Re Kevin reviewed legal developments in other
countries regarding the legal recognition of a transsexual's reassignment,
including recognition for marriage purposes. Justice Chisholm found that
in Europe, while there is no common approach and preconditions vary, there
is a growing tendency to recognise a transsexual's acquired gender.
Justice Chisholm pointed to the fact that Austria, Denmark, Belgium,
Finland, France, Germany, Italy, the Netherlands, Portugal and Sweden
allow a transsexual to marry in the reassigned sex.(5) In contrast
England, South Africa and Canada continue to follow Corbett.
In New Zealand it has been held that Corbett does not represent
the law and a transsexual's change of sex is recognised for the purpose
of the validity of a marriage.(6)
Comment
The decision of Justice Chisholm in Re Kevin has been referred
to in the media as a landmark judgment.(7)
Why? Firstly, it can be said to have overturned the thirty year old orthodoxy
of Corbett in favour of an 'all relevant matters' test.(8)
Secondly, it brings the law of marriage into line with the general law
as regards post-operative transsexuals.
Thirdly, it brings Australia law into line with a growing tendency internationally
to recognise a transsexual's acquired gender.
Fourthly, the case arguably provides a liberal interpretation of rules
regarding statutory interpretation.
In many other respects, however, the case can be said to be not such
a great departure from existing Australian law. Criminal, social security
and anti-discrimination laws already treat post-operative transsexuals
as members of their reassigned sex. Also, the decision can be said to
apply only to post operative transsexuals and does not change the century
old orthodoxy that a marriage has to be between a male and a female, that
is, members of the opposite sex.
The Government has decided to appeal the decision of Chisolm J in Re
Kevin. It is reported in The Australian of 10 January 2002
that the grounds of appeal include that genitalia and chromosomal make-up
should be foremost in deciding future cases.
- Re Kevin, para 330.
- ibid., at paras 84, 104, 120 and 330.
- ibid., at paras 122124 and 128132.
- ibid., at paras 127 and 130132.
- ibid., at paras 189 and 190.
- See M v M [1991] NZFLR 337.
- See, The Australian, 19 October 2001.
- Re Kevin, op. cit., at para 329.
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