Family
Court of Australia Judgment on the Validity of a Transsexual Marriage
On 12
October 2001, in the Family Court of Australia at Sydney, The Honourable Justice
Chisholm found that a marriage between Kevin, a man of transsexual background,
and his wife Jennifer, was legal for the purposes of the Marriage Act (File No: SY8136 of 1999 refers).
The validity of the marriage had been challenged by the office of
the Federal Attorney General on behalf of the Commonwealth
of Australia. The
judgment recognised Kevin’s identity in society as a man and that he should
be legally considered male for the purpose of marriage as a reflection of that
identity. The
judgment has generated much interest, however, some have mis-interpreted
comments made by Chisholm J. as a ruling that transsexualism is a form of
intersex when in fact the judgement draws clear distinctions between the
conditions.
Chisholm
J at 160 ruled that a previous case involving an intersexed individual held no
relevance in the case of a transsexual, and at 224 to 228 Chisholm J further
discussed those with recognised medical conditions stating "cases include
chromosomal variations from the norm, ambiguities in the gonads or genitalia,
and variations in the production of hormones. There
can be incongruities among the various factors, or within them. In
short, people falling into these categories have incongruent features in terms
of their genitals, chromosomes and gonads: not all of their characteristics are
uniformly male, or uniformly female. Resulting
conditions include the Klinefelter Syndrome, hermaphrodism, and androgen
insensitivity syndrome". Chisholm
continues "the problems involved are readily characterised as biological. The
individuals involved are usually called "inter-sex". Their
biological characteristics are not unambiguously either male or female. Transsexuals,
however, do not have any of the incongruities or ambiguities of these
kinds". Chisholm
J. makes clear that this judgement was made
based on Kevin’s recognition as a man by society, his family and peers, and
the fact that he underwent surgical reinforcement of his self-identified gender,
not any perceived relationship between transsexualism and intersex conditions.
Justice Chisholm's full
conclusions in this case are listed as follows:-
1. 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.
2. There is no rule or
presumption that the question whether a person is a man or a woman for the
purpose of marriage law is to be determined by reference to circumstances at the
time of birth. Anything to the contrary in Corbett
does not represent Australian law.
3. In the context of
the rule that the parties to a valid marriage must be a man and a woman, the
word "man" has its ordinary current meaning according to Australian
usage.
4. There may be
circumstances in which a person who at birth had female gonads, chromosomes and
genitals, may nevertheless be a man at the date of his marriage. Anything to the
contrary in Corbett does not represent
Australian law.
5. In the present
case, the husband at birth had female chromosomes, gonads and genitals, but was
a man for the purpose of the law of marriage at the time of his marriage, having
regard to all the circumstances, and in particular the following:-
(a) He had always
perceived himself to be a male;
(b) He was perceived
by those who knew him to have had male characteristics since he was a young
child;
(c) Prior to the
marriage he went through a full process of transsexual re-assignment, involving
hormone treatment and irreversible surgery, conducted by appropriately qualified
medical practitioners;
(d) At the time of the
marriage, in appearance, characteristics and behaviour he was perceived as a
man, and accepted as a man, by his family, friends and work colleagues;
(e) He was accepted as
a man for a variety of social and legal purposes, including name, and admission
to an artificial insemination program, and in relation to such events occurring
after the marriage, there was evidence that his characteristics at the relevant
times were no different from his characteristics at the time of the marriage;
(f) His marriage as a
man was accepted, in full knowledge of his circumstances, by his family, friends
and work colleagues.
6. For these reasons,
the application succeeds, and there will be a declaration of the validity of the
applicants' marriage.
A
complete transcript of the
judgment is available at http://www.familycourt.gov.au/judge/2001/html/rekevin_text.html
.
The
AIS Support Group Australia reaffirms its support for the transgender community,
and sincerely wishes Kevin, Jennifer and their family well with the appeal.
For
further information on intersex conditions and the issues faced by those living
with them, please visit our website at http://www.vicnet.net.au/~aissg
.
Tony Briffa
President
AIS Support Group Australia
Support for people and families with intersex conditions.
email: aissg@iprimus.com.au
http://www.vicnet.net.au/~aissg
1st January 2002
with
questions or comments about this web site.