Australian Court Validates Transsexual Marriage Summary

  • Last updated on November 11, 2022

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.

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. [kw]Australian Court Validates Transsexual Marriage (Feb. 21, 2003) [kw]Court Validates Transsexual Marriage, Australian (Feb. 21, 2003) [kw]Transsexual Marriage, Australian Court Validates (Feb. 21, 2003) [kw]Marriage, Australian Court Validates Transsexual (Feb. 21, 2003) Transsexuals;and marriage rights[marriage rights] Marriage;transsexuals Australia, and transsexual marriage rights [c]Transgender/transsexuality;Feb. 21, 2003: Australian Court Validates Transsexual Marriage[2660] [c]Government and politics;Feb. 21, 2003: Australian Court Validates Transsexual Marriage[2660] [c]Laws, acts, and legal history;Feb. 21, 2003: Australian Court Validates Transsexual Marriage[2660] Williams, Daryl "Kevin" Mather, Gina Tudehope, Darren Wallbank, Rachel

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. Transsexuals;and marriage rights[marriage rights] Marriage;transsexuals Australia, and transsexual marriage rights

Further Reading
  • citation-type="booksimple"

    xlink:type="simple">“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.
  • citation-type="booksimple"

    xlink:type="simple">Council for Civil Liberties, University of New South Wales. “Transsexual Marriage in Australia.” http://www.nswccl.org.au/unswccl/issues/transexual.php.
  • citation-type="booksimple"

    xlink:type="simple">Griffith, Chris. “Family Court Ruling Changes Meaning, Intent of Marriage.” Queensland Courier Mail, February 22, 2003, p. 11.
  • citation-type="booksimple"

    xlink:type="simple">Knowles, Lorna. “Transsexual Marriage Valid.” Daily Telegraph, February 22, 2003, p. 15.
  • citation-type="booksimple"

    xlink:type="simple">Sharpe, Andrew N. Transgender Jurisprudence: Dysphoric Bodies of Law. London: Cavendish, 2002.
  • citation-type="booksimple"

    xlink:type="simple">Webber, Graeme. “Transsexual Case Will Help Drive Equality Reforms.” Australian Associated Press, February 21, 2003.
  • citation-type="booksimple"

    xlink:type="simple">Webber, Graeme, Sheree Went, and Kylie Williams. “Transsexual Marriage Stands, but Commonwealth May Appeal.” Australian Associated Press, February 21, 2003.
  • citation-type="booksimple"

    xlink:type="simple">Williams, Kylie. “Family Court Transsexual Decision a World First.” Australian Associated Press, February 21, 2003.

1981: Gay and Lesbian Palimony Suits Emerge

1992: Transgender Nation Holds Its First Protest

June, 1992: Feinberg Publishes Transgender Liberation

1993-1996: Hawaii Opens Door to Same-Gender Marriages

August 6, 1994: Japanese American Citizens League Supports Same-Gender Marriage

September 21, 1996: U.S. President Clinton Signs Defense of Marriage Act

October 27, 1999: Littleton v. Prange Withholds Survivor Rights from Transsexual Spouses

December 20, 1999: Baker v. Vermont Leads to Recognition of Same-Gender Civil Unions

April, 2003: Buenos Aires Recognizes Same-Gender Civil Unions

June 17, 2003, and July 19, 2005: Canada Legalizes Same-Gender Marriage

November 18, 2003: Massachusetts Court Rules for Same-Gender Marriage

November 18, 2004: United Kingdom Legalizes Same-Gender Civil Partnerships

April 4, 2005: United Kingdom’s Gender Recognition Act Legalizes Transsexual Marriage

June 30, 2005: Spain Legalizes Same-Gender Marriage

Categories: History Content