In a follow-up to the September 2002 LIJ article The case of Kevin and Jennifer: transsexual marriage in Australia”, the authors look at the Full Court of the Family Court decision which upheld the legal validity of the marriage of Kevin and Jennifer. By Eithne Mills and James McConvill
"In those societies which do permit it, it seems to me to be difficult to justify a refusal to recognise that successful gender reassignment treatment has had any legal consequences for the patient’s sexual identity, although the context in which, and conditions under which, a change of sexual identity should be recognised is a complex question. But for the law to ignore transsexualism, either on the basis that it is an aberration which should be disregarded, or on the basis that sex roles should be regarded as legally irrelevant, is not an option. The law needs to respond to society as it is. Transsexuals exist in our society, and that society is divided on the basis of sex. If a society accepts that transsexualism is a serious and distressing medical problem, and allows those who suffer from it to undergo drastic treatment in order to adopt a new gender and thereby improve their quality of life, then reason and common humanity alike suggest that it should allow such persons to function as fully as possible in their new gender." [1] Lord Reed
On 21 February 2003, a decision was brought down by the Full Court of the Family Court (Sydney Registry) in the matter of Attorney-General for the Commonwealth and Kevin and Jennifer and the Human Rights and Equal Opportunity Commission as intervener) (Re Kevin) [2]. In a judgment by Nicholson CJ, Ellis and Brown JJ, an appeal by the Attorney-General for the Commonwealth in a case known as Re Kevin and Jennifer (Validity of Marriage of Transsexual) was rejected [3]. In that case, Chisholm J held that the question of whether a person is a man or a woman should be determined at the date of the marriage, and given that Kevin was a man at the time of his marriage, the marriage was valid (see Mills and McConvill, "The case of Kevin and Jennifer: transsexual marriage in Australia", September 2002 LIJ, page 69). In an analysis of the judgment of Chisholm J, the present authors stated:
"If his Honour’s judgment is upheld on appeal, it will resonate throughout the common law world." [4]
It proved to be so, even before the Full Court decision was handed down. Even a brief examination of jurisdictions faced with like questions as those raised in Re Kevin shows the respect paid to the reasoning and finding by Chisholm J. Indeed, in a 807-page judgment in a Florida Circuit Court[5] delivered only days after the Full Court’s decision in Re Kevin, in which Judge Gerard O’Brien devoted 35 pages to a discussion of the judgment of Chisholm J, Re Kevin is referred to as "one of the most important cases on transsexualism to come on the scene of foreign jurisprudence".
In the Florida judgment, one of the questions canvassed was whether a post-operative female-to-male transsexual person born with a female form could be a male for the purposes of marriage under the marriage laws of the State of Florida [6]. In bringing down a judgment which in effect mirrors the finding of Chisholm J and the Full Court of the Family Court in Re Kevin, O’Brien J stated:
"The marriage law of Florida clearly provides that marriage shall take place between one man and one woman. It does not provide when such status of being a man or woman shall be determined."
In a judgment which took over a year to produce, O’Brien J ruled that Michael Kantaras, who underwent what is commonly referred to as a "sex change operation" 17 years ago, was legally a man at the date of his marriage and therefore as a father could be granted the custody of Linda Kantaras’ two children, one of whom he adopted and the other conceived through donor insemination during the marriage.
Further, on 11 July 2002, the European Court of Human Rights, quoting the decision of Chisholm J in Re Kevin with approval, in the matters of Goodwin v The United Kingdom (application no 28957/95) and I v The United Kingdom (application no 25680/94), held that the United Kingdom had violated, inter alia, Articles 8 (right to respect for private life) and 12 (right to marry) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, with regard to the legal status of transsexual people in the UK, particularly in the areas of marriage, social security, employment and pensions. Following these decisions, in December 2002 the British Lord Chancellor’s Department announced that it was intending to introduce legislation that would allow transsexual persons to marry a person of the opposite sex to their assigned sex, and to change their birth certificates to reflect their assigned sex. At the time of writing, a draft Bill had yet to be released.
Importantly, on 24 February 2003, the government of the Republic of Ireland announced a thorough examination of the country’s marriage laws, including a consideration of the legal status of transsexual people. The Irish government formed an inter-departmental committee to receive submissions from interested parties until 31 March 2003, and is expected to publish later this year discussion papers on 14 specific topics, including the marriage of transsexual persons [7].
These developments show that rather than being a mere aberration, Chisholm J’s judgment, now confirmed by the Full Court of the Family Court, has contributed towards a greater recognition of the rights of transsexual persons across the world. The two judgments in the Re Kevin case not only bring the law more into line with social reality but, of even greater significance, play an enormous part in narrowing the divide between the operation of the law and principles of humanity.
Background
On 18 October 1999, the respondents filed an application seeking a declaration of the validity of the marriage under the provisions of s113 of the Family Law Act 1975 (Cth). The commonwealth Attorney-General intervened in those proceedings which came for hearing before Chisholm J. At the hearing, both the respondents (Kevin and Jennifer) and the Attorney-General accepted that a valid marriage, for the purpose of the Marriage Act1961 (Cth), must be between a man and a woman. The respondents submitted that at the relevant time (the date of the marriage) Kevin was a man for the purposes of the Marriage Act and that the Court should thus declare the marriage was valid. The Attorney-General submitted that Kevin was not a man for the purpose of the Marriage Act and that accordingly the respondents’ application for a declaration should be dismissed [8].
Decision of the Full Court
The matter before the Full Court concerned an appeal by the commonwealth Attorney-General against the decision at first instance by Chisholm J who held that for the purpose of ascertaining the validity of a marriage under Australian law, the question of whether a person is a man or a woman is to be determined as at the date of the marriage. Chisholm J further held that in the context of the rule that the parties to a valid marriage must be a man or a woman, the word "man"has its ordinary current meaning according to Australian usage.
In rejecting the appeal by the Attorney-General, the Full Court emphasised the important place of marriage in our society. The Full Court stated that:
" … we think it plain that the social and legal institution of marriage as it pertains to Australia has undergone transformations that are referable to the environment and period in which the particular changes occurred. The concept of marriage therefore cannot, in our view, be correctly said to be one that is or ever was frozen in time. The relevance of this conclusion for the purposes of these reasons for judgment is that on the sources we have had to identify for ourselves, there is no historical justification to support Mr Burmester’s [counsel for the Attorney-General] contention that the meaning of marriage should be understood by reference to a particular point in time in the past, such as 1961 [when the Marriage Act was enacted by the commonwealth Parliament]. To the contrary, it lends support to the arguments of the respondents and the Human Rights and Equal Opportunity Commission (HREOC) as to statutory interpretation and the decision of the trial judge that the meaning of the term should be given its ordinary contemporary meaning in the context of the Marriage Act." [9]
In reaching its conclusion, the Full Court expressly agreed with the test proposed by Chisholm J as being:
"Unless the context requires a different interpretation, the words man and woman when used in legislation have their ordinary contemporary meaning according to Australian usage. That meaning includes post-operative transsexuals as men and/or women in accordance with their sexual reassignment, R v Harris & McGuiness [1988] 17 NSWLR 158; Secretary, Department of Social Security v SRA [1993] 118 ALR 467 followed". [10]
The Full Court agreed with the trial judge that 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. Therefore, anything to the contrary in Corbett v Corbett (otherwise known as Ashley)[11] does not represent Australian law. The decision in Corbett stands for the proposition that a person’s "true sex" is fixed at birth and that a post-operative male to female transsexual person remains a man for the purposes of the law regulating marriage.
In rejecting the Corbett test, the Full Court cited the views expressed in the minority judgment of Thorpe LJ in the UK Court of Appeal decision of Bellinger v Bellinger[12] where his Honour said:
"To make the chromosomal factor conclusive, or even dominant, seems to me particularly questionable in the context of marriage. For it is an invisible feature of an individual, incapable of perception or registration other than by scientific test. It makes no contribution to the physiological or psychological self. Indeed, in the context of the institution of marriage as it is today it seems to me right as a matter of principle and logic to give predominance to psychological factors just as it seems right to carry out the essential assessment of gender at or shortly before the time of marriage rather than at the time of birth". [13]
In stating that Corbett does not represent the law in Australia, the Full Court agreed with Chisholm J that the characteristics of Kevin, both at the time of birth and the intervening years before marriage, should be given considerable emphasis. In the case of Re Kevin, Chisholm J paid particular attention to Kevin’s lifelong perception of himself as a male, and the acceptance of his circumstances by his family, friends and work colleagues. In addition, his Honour observed with seriousness the hormonal and surgical intervention in relation to Kevin.
The Full Court went on to reject, as did Chisholm J, the Attorney-General’s proposition that marriage is intrinsically connected with procreation. The Full Court stated:
"Like the trial Judge, we reject the argument that one of the principal purposes of marriage is procreation. Many people procreate outside marriage and many people who are married neither procreate, nor contemplate doing so. A significant number of married persons cannot procreate either at the time of the marriage or subsequently – an obvious example being a post-menopausal woman. Similarly, it is inappropriate and incorrect to suggest that consummation is in any way a requirement to the creation of a valid marriage. Subsequent to the passage of the Marriage Act, inability to consummate a marriage ceased to be a ground for making a declaration of nullity: see s51 of the Family Law Act and ss23, 23A, and 23B of the Marriage Act". [14]
In its decision, the Full Court was mindful, as was Chisholm J, of social and medical issues to do with the human rights of transsexual people. Of particular importance was the scientific and psychological evidence of the particular circumstances surrounding Kevin and his self-identification. In recognising that the question of whether Kevin was a male at the date of his marriage, the trial judge and the Full Court showed an appreciation for the breadth of scientific and social change since the decision in Corbett.
The Full Court also referred to the practical and logical questions that may arise in the future as to the legal position of pre-operative transsexual persons (meaning a transsexual person yet to undergo hormonal and surgical intervention) [15]. Pointing out that the facts in Re Kevin did not require a determination as to a pre-operative transsexual person, the Full Court intimated that federal Parliament should show an interest in determining their status, commenting however that federal Parliament has to date shown no interest in such questions.
It is important to note that while Chisholm J and the Full Court were mindful of the rights of pre-operative transsexual persons, neither judgment made definitive findings as to the status of pre-operative transsexual persons for the purpose of contracting a valid marriage. The Full Court did recognise, however, that with the rejection of the Corbett test in Australia, the door may possibly be open to future confirmation that pre-operative transsexual persons also can validly marry. On this point, the oral submission of the HREOC to the Court is particularly important in highlighting the surgical difficulties attendant on female-to-male physical transition. Counsel for the HREOC, Mr Basten, submitted:
" ... in the circumstances of this case, it is worth accepting that surgical intervention in relation to the removal of gonads may be relatively straight-forward, surgical intervention for a male to female transsexual person in relation to the construction of a vagina may be common place, surgical intervention which requires the construction of a penis is much more problematic and even where it takes place may or may not give rise to something which would be readily accepted as a penis of a sexual kind which has a particular sexual function". [16]
We await with interest a future case involving a pre-operative transsexual person seeking to be recognised in law according to their "brain sex", for some judicial guidance on this issue.
Conclusion
In affirming the decision of Chisholm J in Re Kevin that determination of a person’s physical attributes at birth is not, and should not, be immutable, the Full Court was echoing medical, scientific, psychological and sociological evidence raised by transsexual persons trying to deal with a conflict between social reality and the law. In doing so, the Full Court referred to modern-day international legal developments, and the widespread legislative recognition of transsexual persons as "man" or "woman" for the purposes of diverse areas of law.
In reaching its decision, the Full Court made it plain that it was not " ... seeking to engage in judicial legislation". [17] The Full Court continued: "One of the functions of the judiciary is to interpret the meaning of legislation and we see ourselves as doing no more or no less than this ... ". [18]
In a final conclusion, the Full Court again stressed its interpretative function but added a human note by stating:
"Our decision, like that of Chisholm J in this case, is in our view the correct interpretation of the law. We would add, however, that we believe that the recognition of the position of post-operative transsexual persons is at least the last step in the direction of the recognition of the plight of such persons and hopefully a step that will enable them to lead a more normal and fulfilling life". [19]
Following the decision, there was a real possibility the commonwealth Attorney-General and, by implication, the Australian government would seek leave to appeal the decision of the High Court of Australia. The allotted time in which to seek leave to appeal has passed. It could be argued that Australia’s participation in the war against Iraq curtailed the time of the Attorney-General to deal with domestic matters, therefore constituting grounds for allowing an application for special leave. This move appears remote.
(Law Institute Journal Volume 77 No. 7, July 2003 page 58
Email: lawinst@liv.asn.au
Web: www.liv.asn.au/)
EITHNE MILLS is a lecturer at Deakin University’s School of Law and has recently commenced a PhD in law at Deakin University.
JAMES McCONVILL is a lawyer in the corporate and commercial department of Allens Arthur Robinson, Melbourne. He has written this article independently of Allens Arthur Robinson, and the views expressed in the article do not necessarily represent those of the firm.
[1] From [2003] FamCA 94 (21 February 2003), para 296; a quote from Lord Reed’s paper, Splitting the difference: transsexuals and human rights law” presented to the Anglo-German Family Law Judicial Conference in Edinburgh in September 2000, p50.
[2] [2003] FamCA 94 (21 February 2003, Nicholson CJ, Ellis and Brown JJ).
[3] [2001] FamCA 1074 (12 October 2001). For a comprehensive discussion of this decision, see James McConvill and Eithne Mills, Re Kevin: gender dysphoria and the right to marry” (2002) 6 University of Western Sydney Law Review 223; Margaret Otlowski, What is the harm in it anyway? Re Kevin and the recognition of transsexual marriage” (2002) 16 Australian Journal of Family Law 146.
[4] Eithne Mills and James McConvill, The case of Kevin and Jennifer: transsexual marriage in Australia” (2002) (76)8 LIJ 69 at 72.
[5] In Re Marriage and Michael J Kantaras v Linda Kantaras (case no 98-5375CA511998DR005375xxxxWS) in the Circuit Court of the Sixth Judicial Circuit in and for Pasco County, Florida.
[6] Chapter 741.212(3) of the Florida Statutes provides that for the purposes of interpreting any state statute or rule, the term ‘marriage’ means only a legal union between one man and one woman as husband and wife”; ch 741.212(1) outlaws marriages between persons of the same sex, and also prohibits relationships between persons of the same sex which are treated as marriages.
[7] See uk.gay.com/headlines/3827.
[8] Note 2 above, para 3.
[9] Note 2 above, para 87.
[10] Note 2 above, para 374.
[11] [1971] P83 (Corbett).
[12] [2001] 2 FLR 1048.
[13] Note 12 above, para 155. The authors note that on 10 April 2003, the House of Lords upheld the Court of Appeal decision that for the purposes of s11(c) of the British Matrimonial Causes Act 1973 (which provides that a marriage is void unless the parties are respectively male and female”), a person born physically as one sex may not later become, or become regarded as, a person of the opposite sex: see Bellinger v Bellinger [2003] UKHL 21 (10 April 2003). Available online at: http://www.parliament.the-stationery-office.co.uk/pa/ld200203/ldjudgmt/jd030410/bellin-1.htm.
[14] Note 2 above, para 153.
[15] Note 2 above, para 382.
[16] Appeal transcript, 19 February 2002, p26; cited in note 2 above, para 386.
[17] Note 2 above, para 373.
[18] Note 17 above.
[19] Note 2 above, para 388.
