Transsexual Marriage in Australia

On 20 May 2003, Rachel Wallbank from Wallbank's Legal delivered an inspirational address to UNSWCCL. Ms Wallbank, a graduate of the UNSW Law School, is the solicitor and counsel for the married couple in the recent Full Family Court appeal that confirmed the validity of the marriage of Kevin and Jennifer. That decision has since been followed around the world, in Florida and the European Court of Human Rights.

Contents

Kevin and Jennifer
    Facts
    The state of the law
    Preparing the case
    The scientific evidence
    The court case
    The appeal
    Conclusion

More Information

Facts

In 1998 Kevin & Jennifer received an inconclusive response to a letter they had written to the Attorney-General asking whether their proposed marriage would be legal. Kevin is a transsexual and was born a woman. Kevin & Jennifer found a marriage celebrant willing to perform the ceremony and were subsequently married in August 1999. In October 1999 Kevin & Jennifer sought a declaration of validity for their marriage from the Family Court of Australia. The Commonwealth Attorney-General intervened to oppose the application.

This set the scene for a herculean battle for the rights of transsexuals to marry in Australia.

The state of the law

The law in Australia on transsexual marriage was undeclared. There were two main common law decisions that might decide the case in Australia: one case from the UK; another from New Zealand. The case of Corbett v Corbett (otherwise Ashley) [1971] P83 was decided in the UK in the early 1970s. Ormrod J had found that gender is determined at birth by examining three biological factors: chromosomes; gonads; and genitals. His Honour’s decision was influential throughout the common law world for many years to come.

In Australia there was also a line of authority that rejected the Corbett view: R v Harris and McGuiness (1988) 17 NSWLR 158;Secretary, Department of Social Security v SRA (1993) 118 ALR 467. These decisions recognised that a post-operative transsexual person could be treated as a member of his or her adopted sex for the purposes of criminal law and social security law. There was no decision on whether the same could be said for marriage law.

In 1995 a New Zealand court chose not to follow Corbett. In the case of Attorney-General v Otahuhu Family Court [1995] 1 NZLR 603 Ellis J found, as a matter of social justice and public policy, that if a transsexual has willing undergone therapy and surgery to change his or her genitalia, then the law should accept the gender re-assignment.

All of these decisions were decisions at first instance, i.e. decisions of only one judge. Other cases in the US and the UK had unsuccessfully tried to overturn Corbett.

Preparing for Kevin & Jennifer’s case

It would appear that the obvious and safest choice for Ms Wallbank, representing Kevin and Jennifer, was to argue for the Australian authority to be extended to marriage law. This was, however, not an option for Kevin. The surgical procedure to construct male genitalia can be life-threatening. While Kevin had undergone hormone therapy and some surgery, because of his commitment to his young family, Kevin had decided not to proceed with this surgery. This meant that the Australian and New Zealand cases, which had all involved male-to-female post-operative transsexuals with fully-reconstructed genitalia, might not necessarily cover Kevin.

The bold decision was taken not to argue the Australian and New Zealand cases in the Family Court, but rather to attack Corbett head-on. When fighting a human rights test case, Ms Wallbank says, it is important not to settle for half-measures, but rather to be courageous and to fight for full recognition and for human dignity.

While preparing the case Ms Wallbank soon discovered that a whole new vocabulary had to be created to explain the issues to the Court. Terms such as “brain sex” and “a female of transgender background”. It was also important to distinguish the differences between transgender and transsexual people.

Ms Wallbank successfully applied to Chisholm J of the Family Court for test-case status. The granting of such status meant that Commonwealth funding became available to Kevin and Jennifer to defend their case.

The scientific evidence

Ms Wallbank assembled and co-ordinated an international team of scientific experts, including Professor Milton Diamond, Professor of Anatomy and Reproductive Biology at the School of Medicine, University of Hawaii, Professors of psychiatry Nathaniel McConaghy and Cornelius Greenway, and Professor Gooren from the Netherlands. The team included distinguished Australian experts such as Dr. Jan Walker from Sydney.

The evidence presented to the Court included accounts of how, during pregnancy, the foetus is exposed to ‘hormonal baths’ that act as switches, determining such things as the physical gender and the gender of the brain. The idea of ‘brain sex’, or the gender of the brain, was to prove important in the Family Court. Other evidence demonstrated that the brain mass of transsexuals more closely resembles that of their self-identified gender than that of their physical gender.

The court case

The case was heard by Chisholm J of the Family Court of Australia. The Commonwealth Attorney-General, opposing the declaration of the validity of Kevin and Jennifer’s marriage, argued purely on the law and did not adduce any evidence contradicting the scientific evidence presented by Ms Wallbank to the Court.

On 12 October 2001 Chisholm J handed down his decision. He concluded 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 at the date of the marriage, not as at birth;
• the decision of Corbett does not represent Australian law;
• in Australian law, the terms ‘man’ and ‘woman’ include transsexuals in accordance with their sexual reassignment;
• having regard to all the circumstances, Kevin is a man. Factors supporting that conclusion include:
• 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;
• 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;
• 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;
• he was accepted as a man for a variety of social and legal purposes, including name, and admission to an IVF 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;
• his marriage as a man was accepted, in full knowledge of his circumstances, by his family, friends and work colleagues.

While Chisholm J did not find exclusively on the scientific evidence before him, he did state that the ‘brain sex’ theory was not the definitive legal test for ascertaining a person’s gender. Instead he concluded that “post-operative transsexuals will normally be members of their reassigned sex” (at [330]). He offered a list of relevant matters to be considered when determining the gender of a person at the time of marriage. The list includes (at [330]):

• the person’s biological and physical characteristics at birth (including gonads, genitals and chromosomes);
• the person’s life experiences, including the sex in which he or she is brought up and the person’s attitude to it;
• the person’s self-perception as a man or woman;
• the extent to which the person has functioned in society as a man or a woman;
• any hormonal, surgical or other medical sex reassignment treatments the person has undergone, and the consequences of such treatment; and,
• the person’s biological, psychological and physical characteristics at the time of the marriage, including (if they can be identified) any biological features of the person’s brain that are associated with a particular sex.

The appeal

The Federal Attorney-General appealed Chisholm J’s decision to the Full Bench of the Family Court. The appeal was heard in February 2002. Ms Wallbank again conducted the case as both solicitor and counsel. She knew that all the decisions concerning transsexuals and marriage to date, throughout the common law world, had been decisions at first instance. This was to be the first appellate decision in any jurisdiction.

One year later, on 21 February 2003, the Full Court upheld Chisholm J’s decision. In a unanimous decision, the Full Bench (which included the Chief Justice) concluded 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. (at [87])

The same day, only hours after the Full Court decision, Judge Gerard O’Brien of the Sixth Circuit Court of Florida, having waited for the decision in Australia to be handed down, declared valid the marriage of a male of transsexual background. Re Kevin has also been followed by the European Court of Human Rights in overturning decisions of UK and Irish courts.

The Federal Government, to date, has not chosen to challenge the decision in the High Court of Australia. Given the lapse of time, it is now highly unlikely that it will happen.

Conclusion

The Corbett decision has finally been laid to rest. The gender on a birth certificate, which is based purely on an examination of external genitalia at birth, is now only prima facie evidence of gender – but it can no longer be considered conclusive. As Ms Wallbank says, what is between the ears is more determinative than what is between the legs.

The courage of Kevin and Jennifer and their legal counsel, Ms Rachel Wallbank, stands as inspiration for all those who struggle for human dignity and the right of all individuals to pursue their own ideal of happiness.

Michael Walton, 2003

More Information

For pleadings, essays and other resources, see Wallbank's Legal

For the decision of Chisholm J in the Family Court, see In Re Kevin (Validity of Marriage of Transsexual) [2001] FamCA 1074 (12 October 2001)

For the decision of the Full Bench of the Family Court, see Attorney-General (Cth) v Kevin and Jennifer [2003] FamCA 94 (21 February 2003)

For the Florida decision following Re Kevin, see Kantaras v Kantaras (21 February 2003) case# 98-5375CA

For European decisions following Re Kevin, see I v United Kingdom [2002] ECHR 25680/94 and Goodwin v United Kingdom [2002] ECHR 28957/95