In Re Kevin (Validity of marriage of transsexual), Family Court of Australia (12 October 2001)
The applicants, a woman and a transgender man named Kevin, applied for a declaration of validity of their marriage. The Attorney General intervened in their application, arguing against the couple. The case was heard by the Family Court.
Whether Kevin’s marriage to a woman was valid.
Kevin was born and raised as a female. In 1995 he began the female-to-male transition process by undergoing hormone therapy. In 1997 he underwent plastic surgery to remove his breasts. In 1998 a doctor performed a total hysterectomy on the applicant, who did not elect to have genital construction surgery due to the procedure’s complexity, expense, and risk of failure. (Nonetheless, the Attorney General did not argue that the applicant’s sex reassignment was incomplete or unsuccessful in any way.) In 1998 the applicant was issued a new birth certificate that reflected his sex reassignment. The applicants began the formal marriage process in 1999 and were soon thereafter awarded a Certificate of Marriage. The Attorney General disputed the validity of the Certificate.
Anti Discrimination Act 1977 (State of New South Wales law amended in 1996 to protect against discrimination based on gender reassignment).
Sexual Reassignment Act 1988 (State of South Australia law allowing transgender individuals to register under their new sex).
Secretary of Department of Social Security v. SRA, Federal Court of Australia, 1993.
R v. Harris and McGuinness, New South Wales Court of Criminal Appeal, Australia, 1988.
Bellinger v. Bellinger, England and Wales Court of Appeal, Civil Division, 2001 (determining sex based on biological factors).
Corbett v. Corbett (Otherwise Ashley), Probate, Divorce and Admiralty Division, United Kingdom, 1970 (holding that sex was biologically fixed at birth and could not be changed by medical or surgical means)
Hyde v. Hyde and Woodmansee, Courts of Probate and Divorce, United Kingdom, 1866 (defining common law marriage as the voluntary union for life of one man and one woman, to the exclusion of all others).
Reasoning of the Court
This Court accepted as valid the common law definition of marriage as the union for life of one man and one woman, to the exclusion of all others. The Court’s decision, therefore, hinged upon its definition of “man” for the purposes of marriage.
The Court began its opinion by citing evidence that described Kevin medically and socially as a man. This included a lengthy description of Kevin’s life before and after the transition process. The Court also reviewed the findings of social workers and doctors at a fertility clinic. This group concluded that Kevin was a man in a heterosexual relationship with his female partner. They noted that Kevin’s transsexual history should not prevent him and his partner from receiving treatment at the clinic. The clinic identified the couple as a heterosexual couple seeking treatment for infertility consequent to absent sperm production. Kevin’s partner conceived a child, and the applicants raised the child together as mother and father.
The Court also recited the findings of two psychiatrists, both of whom without hesitation identified the applicant as psychologically male. Testimony from thirty-nine of the applicants’ friends and family corroborated the psychiatrists’ and clinic’s determination that the applicants were a heterosexual couple. The Court stated:
These witnesses’ evidence is consistent, impressive, and unchallenged. They notice different things, and express themselves in different ways. A list of the things they noticed might suggest a stereotypical view of being a man. Perhaps it is, for example, a heterosexual model. Not all men might fit that stereotype. There are no doubt different ways of being a man. But these witnesses are not constructing models or trying to formulate criteria. They are describing what they see in Kevin. And what they see is a man.
Having established that the applicant was medically and socially accepted as a man, the Court next reviewed the legal definition of “man” and whether or not the Kevin’s transsexual history was incompatible with that definition. Transgender-related common law in Australia was guided by a line of cases stemming from the British decision in Corbett v. Corbett. However, the Court noted, “since at least 1982 the common law of Australia had developed to the stage where English decisions were no more than a guide to the common law in Australia, and thus the decision in Corbett is useful only to the degree of the persuasiveness of its reasoning”. The Court rejected the reasoning in Corbett, but nonetheless explained the case in detail, because the respondents relied on it heavily.
Corbett developed a three-pronged test to determine a person’s gender for the purposes of marriage: chromosomal sex, gonadal sex, and genital sex. These three factors alone were considered to determine a person’s biological sex and, in turn, to determine a person’s “true sex” for the purposes of marriage. The Court rejected this conflation of “biological sex” and “true sex”, holding that it lacked any scientific or legal justification. The Court also rejected the term “true sex” as used in Corbett.
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 … [Corbett] treats a person’s (biological) sex as equivalent to the person’s status as a man or woman, without any reasons having yet been advanced for disregarding psychological and social factors.
Corbett justified its three-prong inquiry by arguing that a person’s sex, for the purposes of marriage, should be determined biologically because a spouse must be “naturally capable of performing the essential role of a [man or] woman in marriage.” The Kevin Court disagreed with Corbett’s justification and found persuasive critics of the opinion who argued that it limited women to the role of physical objects. The Court also found vague the terms “naturally” and “essential role”.
Having dismissed Corbett, the Court also dismissed the respondents’ argument that, for the purposes of marriage, “man” should be understood as it was understood when the Marriage Act was passed in 1961. The respondents argued that the 1961 definition included the common law definition of marriage established in Hyde in 1866, as well as the biological sex approach in Corbett. The Court concluded that this approach was anachronistic. It held that the biological principles that guided the Corbett decision were unknown in 1866. Furthermore, the Court expressed doubt that the creators of the Marriage Act had in mind the three factors enumerated in Corbett ten years later. The Court, therefore, defined a person’s sex for the purposes of marriage from a more modern and less restrictive perspective.
In support of this functionalist approach, the Court provided examples from recent Australian legislation, Australian case law, various domestic courts, and international courts. The cited Australian legislation included the Anti Discrimination Act 1977 (NSW) (State anti-discrimination law amended in 1996 to protect transgender individuals); the Sexual Reassignment Act of 1988 (law allowing transgender individuals to register under their new sex); and passport reforms that allowed transgender individuals to travel under their reassigned gender.
Although Australian courts had not overturned Corbett, they had been critical of its analysis. In R v. Harris and McGuinness, the New South Wales Criminal Court of Appeal heard a case of two male-to-female transsexuals charged under a sodomy law prohibiting indecency between two males. The Harris court found that because one of the defendants was post-operative, she could not be considered a male and, therefore, neither defendant could be prosecuted. The Kevin Court also cited Secretary of Department of Social Security v. SRA to demonstrate that “under Australian law unless the context indicates reasons for a different approach, words like ‘man’ and ‘woman’ in legislation will be treated as ordinary words” and would normally be understood to include MtF and FtM individuals following sexual reassignment surgery. The Court adopted this approach, finding no evidence that the terms of the Marriage Act had been decided by Corbett.
In the United Kingdom case Bellinger, the court did not overturn Corbett, which had been good law in the United Kingdom, but did recognise that the point at which the State should recognise a person’s transition from one gender to another is arbitrary. The Bellinger court deferred to the legislature to clarify the issue. The Kevin Court found that Bellinger, despite its refusal to overturn Corbett, reflected changing attitudes towards transgender persons, and cited numerous jurisdictions that legally recognised a person’s reassigned sex, including Austria, Denmark, Belgium, Finland, France, Germany, Italy, the Netherlands, Portugal, and Sweden. The Court considered that these jurisdictions showed: “a general tendency to accept that for legal purposes, including marriage, post-operative transsexuals should be treated as members of the sex to which they have been assigned. When seen against this international context, the approach in Corbett is increasingly out of step with developments in other countries.”
In addition to these positive trends, the Court relied on expert testimony from various doctors and scientists unfamiliar with the applicants’ case. These experts supported the recognition of a transgender person’s reassigned sex for the purpose of marriage. The Court concluded that both global and domestic trends and scientific evidence compelled it to legally recognise a person’s capacity to change gender. Further, and more importantly, marriage was not to be excluded from transgender recognition. Not only did the Court fail to find a compelling reason to define “man” and ”woman” differently for marriage, but the Court also found:
good reasons specific to marriage for recognizing the re-assignment. Doing so would be likely to promote the interests of others, in particular the spouses and children involved. Failing to do so would lead to the odd result that a person who appears to be a man, who functions in society as a man, and whose body can never function as a woman’s body and has most of the characteristics of a man, would be entitled to marry a man.
Finally, the Court held that recognising sex-reassignment for the purposes of marriage would bring Australian marriage law into conformity with other areas of law – for example, Australian passport laws and anti discrimination laws. The Court noted that, although it was possible for different areas of law to be incongruous, it was highly undesirable.
The Court held that for the purposes of marriage, a person’s sex should be determined by considering a number of factors, which included, but were not limited to: “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 Court noted that the inquiry into these factors should involve the person’s state at the time the marriage was performed.
The decision was affirmed on appeal by the Full Court of the Family Court Attorney General (Cth) v.“Kevin and Jennifer”, Family Court of Australia (Full Court), 2003.
In Re Kevin (Validity of marriage of transsexual), Family Court of Australia (full text of judgment, PDF)
In Re Kevin (Validity of marriage of transsexual), Full Court of Family Court of Australia (full text of judgment in Full Court, PDF)