Australian Court Validates Transsexual Marriage
In a landmark ruling on February 21, 2003, the Family Court of Australia validated the marriage of a transsexual man, Kevin, and his wife, Jennifer, setting a significant legal precedent for transsexual rights in Australia and beyond. The court rejected an appeal by the Australian attorney-general, who argued that Kevin's marriage should be considered invalid under the Marriage Act of 1961, since he had not undergone genital surgery. Instead, the court determined that legal recognition of gender at the time of marriage, rather than at birth, is essential for validating marriage.
This decision is particularly noteworthy as it allows transsexual individuals to marry without the necessity of surgical intervention, thus removing a barrier that disproportionately affects those who may not have access to such procedures. The ruling underscores that the definition of marriage is not strictly tied to procreation, allowing couples—regardless of gender identity—greater freedom to define their familial structures. While the ruling was celebrated by many as a progressive step, some critics raised concerns about its implications for traditional notions of marriage and family. The decision also opened pathways for transsexual couples to adopt children, previously restricted under Australian law, thus expanding the rights and recognition of diverse family dynamics.
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Australian Court Validates Transsexual Marriage
The Full Bench of the Family Court of Australia validated a transsexual marriage after it was challenged on appeal by the federal government of Australia. The court decision effectively legalized transsexual marriage.
Date February 21, 2003
Locale Sydney, Australia
Key Figures
Daryl Williams Australian federal attorney-general“Kevin,” female-to-male transsexual whose 1999 marriage was challenged by the Australian governmentGina Mather president of the Australian Transsexual Support AssociationDarren Tudehope spokesperson for the Australian Family AssociationRachel Wallbank transsexual lawyer who represented “Kevin”
Summary of Event
On February 21, 2003, the federal government of Australia lost its bid to invalidate the marriage of a Sydney transsexual and his wife when the Full Bench of the Family Court threw out an appeal of a 2001 decision declaring the marriage legal. The appeal was brought by Australian attorney-general Daryl Williams, who argued that the marriage was invalid because a transsexual could not be a “man” under the Marriage Act of 1961. The Full Bench disagreed, upholding the ruling by Justice Richard Chisholm in 2001 that validated the marriage.
The case involved “Kevin” and “Jennifer,” from Sydney, who had married on August 21, 1999, after Kevin had gender reassignment surgery to become a man. Kevin’s birth certificate and passport both state that he is male, and he had begun hormone therapy in 1995. Although he had chest surgery in 1997 and a hysterectomy in 1998, Kevin opted not to undergo genital surgery to construct a penis. Kevin and Jennifer’s case, with their attorney Rachel Wallbank, was therefore the first in the world in which a transsexual marriage was deemed valid without the transsexual person having had genital-reconstructive surgery.
The Full Bench of the Family Court held that on the question of marriage, the determination of a person’s legal sex/gender depends on whether the person is a man or woman at the time of marriage rather than of birth. In addition, the court judgment said, “we reject the argument that one of the principal purposes of marriage is procreation…similarly it is inappropriate and incorrect to suggest that consummation is in any way a requirement to the creation of a valid marriage.”
In opposition, Australian Family Association spokesperson Darren Tudehope told the Australian Associated Press that “if he (Kevin) has had a sex change that means he no longer wants to be in a relationship that has the purpose of producing children.” At the time of the hearing, Kevin and Jennifer had two children, conceived using donor sperm through in-vitro fertilization. According to Gina Mather, president of the Australian Transsexual Support Association, the court decision on marriage will enable other couples with one or more transsexual partners to legally adopt children, which had been prohibited under Australian law before the Kevin and Jennifer case.
Significance
The Australian court’s decision to affirm transsexual marriage was groundbreaking for transsexual rights around the world, particularly because the decision defines “legal” sex/gender to be based on the date of marriage rather than the assigned sex/gender at birth, and because it carries no requirement of genital surgery, which is often a barrier to low-income transsexuals, female-to-male transsexuals, and those not wanting the surgery.
This case had an immediate impact on an estimated fifteen hundred transsexual Australians, who could legally marry in their new gender if they so desired. While most transsexual advocates interpreted the decision as progressive, some cautioned that in the absence of a surgery requirement, the court may rely on the judgment of family members and peers to determine “legal” gender at time of a proposed marriage. If a transsexual does not pass well as their “chosen” gender or is estranged from his or her family, the individual may have difficulty gaining legal recognition of his or her gender.
Opponents of the decision cite the ruling as a blow to traditional marriage and the family, a view that relies heavily on the notion that marriage is an institution defined as procreative and that marriage ensures procreation. However, married heterosexual couples often choose not to have children. Furthermore, married transsexuals are redefining “family” in new ways, and many have or want children. Significantly, the Australian court finding that marriage is not just for ensuring procreation enables transsexuals and all married people to make a conscious choice about whether or not to have children and under what circumstances they might wish to do so.
Bibliography
“Attorney-General for the Commonwealth and ’Kevin and Jennifer’ and Human Rights and Equal Opportunity Commission” (February 21, 2003). Decision of the Family Law Court of Australia. http://www.austlii.edu.au/au/cases/cth/family ‗ct/2003/94.html.
Council for Civil Liberties, University of New South Wales. “Transsexual Marriage in Australia.” http://www.nswccl.org.au/unswccl/issues/transexual.php.
Griffith, Chris. “Family Court Ruling Changes Meaning, Intent of Marriage.” Queensland Courier Mail, February 22, 2003, p. 11.
Knowles, Lorna. “Transsexual Marriage Valid.” Daily Telegraph, February 22, 2003, p. 15.
Sharpe, Andrew N. Transgender Jurisprudence: Dysphoric Bodies of Law. London: Cavendish, 2002.
Webber, Graeme. “Transsexual Case Will Help Drive Equality Reforms.” Australian Associated Press, February 21, 2003.
Webber, Graeme, Sheree Went, and Kylie Williams. “Transsexual Marriage Stands, but Commonwealth May Appeal.” Australian Associated Press, February 21, 2003.
Williams, Kylie. “Family Court Transsexual Decision a World First.” Australian Associated Press, February 21, 2003.