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Re Kevin - validity of marriage of transsexual ([2001] FamCA? 1074, [online copy]) is a groundbreaking recent judgement of the [Family Court of Australia]?, concerning the right of transsexuals to marry. Kevin (not his real name), a post-operative male-to-female transsexual, married Jennifer (not her real name). Kevin had his sex changed on his birth certificate and other legal documentation; the question faced by the court was whether the change of sex on his birth certificate should apply for the purposes of family law. English law had decided, in the case of [Corbett v. Corbett]? (1971), that sex reassignment would not be recognized for purposes of marriage. But Justice Richard Chisholm (the judge in this case) found that the decision of the English court did not bind Australian law, and upon considering the merits of the English decision found its logic to be faulty. Therefore Justice Chisholm concluded that, despite the English decision, post-operative transexuals are to be considered to have their reassigned sex for the purposes of marriage law, and that the applicant's marriage was valid. |
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Corbett v. Corbett concerned a postoperative male-to-female transsexual, April Ashley. Ormord J found that since Ashley had male gonads, genitalia and chromosomes at birth, her "true sex" was male at the time of her birth, and that her "true sex" could not be changed. Chisholm attacked Ormord J's argument as simply defining one's "true sex" as ones biological sex at birth, ignoring the social and psychological aspects of sexual identity, without producing any convincing reason as to why these should be ignored. Ormord J mostly presumes it to be "obvious", although he does produce some arguments. He argues that a post-operative transsexual cannot "naturally" perform the "essential role" of a man or woman in a marriage. Chisholm rejects this argument, on the grounds that, whatever exactly the "essential role" in marriage is, be it reproduction or intercourse, many born men or women are incapable of doing so, and yet they are still considered men or women for the purposes of the law of marriage. |
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Justice Chisholm attacks Ormord J's decision for assuming that their is some essential characteristic that makes people male or female. He argues that sex is a compound of many elements, chromosomal, genital, gonadal, psychological and social, and that while in most people these criteria are congruent, in others they are not. He denies there is any 'true sex' of an individual, beyond these various criteria that make up one's sex, and he denies that any one of these criteria can be taken as totally determinative, in the abscence of the other criteria. Justic Chisholm also notes that while the English, South African and Canadian courts have accepted Ormord J's decision, New Zealand has rejected it. The question had not been considered before by Australian courts. Justice Chisholm also considers the situation raised by Ormord J, where a married person seeks to changes their sex in the marriage, thereby giving the appearance of a homosexual marriage. Ormord J sees this as an argument against permitting legal recognition of transexuality for the purposes of marriage law. Justice Chisholm points out that refusal of such legal recognitiion could equally give the appearance of homosexual marriage, since then someone who appears to be a man and lives socially as a man , but is legally considered to be a woman, could legally marry a man. Justice Chisholm finds that the person's sex at the time of the marriage determines whether they can legally marry, and that a person who had a sex reassignment during their marriage would continue to be married until either party sought a divorce, even though their marriage would now be homosexual. Interesting! But the title of this article is appalling! I agree, how about merging the entire contents of this article into Legal aspects of transsexualism? Yeah, I suppose we could do that. But I was thinking that the legal aspects article could give a broad overview, and that articles like this could discuss specific decisions in more detail. I suppose it ultimately depends on how detailed information people bother to add on this topic. -- SJK |
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