Kevin and the validity of marriage
1. These proceedings are now cited as Re Kevin : Validity of Marriage of Transsexual (2001) FamCA 1074 and (2001) FLC 93-087 ("Re Kevin"). Justice Chisholm's original decision, granting a Declaration of Validity of Marriage in respect of the marriage, in which the husband was a man of transsexual background, was delivered on 12thOctober 2001. The appeal before the Full Court of the Family Court of Australia was heard on 18th and 19thFebruary 2002. The Full Court consisted of their Honours Chief Justice Nicholson and Justices Ellis and Brown. The Full Court of the Family Court of Australia delivered its decision on 21st February 2003. In its judgment the Full Court dismissed the appeal, thoroughly reviewed the applicable evidence and legal issues and strongly affirmed the original decision of His Honour Justice Chisholm. In these proceedings the husband and wife successfully contended that, notwithstanding the husband’s transsexual background, the husband was entitled to be married as a man because he was a man within the meaning of that expression in section 46(1) of the Marriage Act and section 43 of the Family Law Act at the time of his marriage;
2. The human rights and legal impact of Re Kevin have had effect beyond Australia. On 11th July 2002, in the landmark decisions of I –v- The United Kingdom and Christine Goodwin –v- The United Kingdom, the European Court of Human Rights, quoting Justice Chisholm’s decision in Re Kevin at length and with approval, determined that there had been violations of articles 8, 12, 13 and 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms in respect of the legal status of people who had experienced transsexualism in the United Kingdom and, in particular, such people’s treatment in the spheres of employment, social security, pensions and marriage. As a result of these decisions the United Kingdom is now preparing to introduce a program of legal reform, including the introduction of the right of people who experience transsexualism to have their legal sex reassigned, in order to remove such violations of human rights. Regrettably, the actual legislative proposal for reform in the United Kingdom as now evident utterly fails the task of achieving equal human rights for people who experience transsexualism; including requiring an applicant for the assignment of legal sex to concede that the applicant has the psychological predicament called "Gender Dysphoria" and compelling the applicant to end any existing marriage.
3. On 22nd February 2003, only hours after the delivery of the decision of the Full Court of the Family Court of Australia in Re Kevin, Justice Gerard J. O'Brien in the Circuit Court of the Sixth Judicial Circuit In And For Pasco County, Florida in the United States of America in The Marriage of Kantaras case number 98-5375CA 511998DR00537WS, the marriage of Michael Kantaras, a man of transsexual background like Kevin, was declared valid for the first time in a court of the United States of America and Michael Kantaras was awarded the custody of his children who had been born to Mr Kantaras and his wife, Linda. Justice O'Brien approved of, relied upon and quoted extensively from, Justice Chisholm's decision in Re Kevin. At page 673 of his decision Justice O'Brien says: "it is essential that Kevin not be given a mere "citation" but studied for what it represents in the law. It is one of the most important cases on transsexualism to come on the scene of foreign jurisprudence."
4. The judgements of Chisholm J and the Full Court in the case Re Kevin declare the law of Australia to the effect that the question of whether a person is a man or a woman for the purpose of the marriage law of Australia is to be determined as at the date of the marriage and that there is no rule or presumption of Australian law that the question of whether a person is a man or a woman is to be determined by reference (only) to circumstances at the time of the person’s birth. Anything to the contrary in the English decision of Corbett –v- Corbett (orse Ashley)  P83 ("Corbett") does not represent Australian law. It was the Commonwealth's contention in these proceedings that the question of whether a person is a man or a woman for the purposes of the marriage law of Australia should be determined pursuant to the reasoning and the test of the congruence of an individual's gonads, genitalia and chromosomal features (alone) as assessed at birth (only) as espoused by the judgment of His Honour Mr Justice Ormrod in Corbett;
5. Of significance to both the judgments of Justice Chisholm and of the Full Court was the Courts’ acceptance that, for a person who experiences the condition of transsexualism, sex affirmation treatment is personally rehabilitative rather than imitative in purpose. Both Family Court decisions also found that an individual's sex was not to be solely determined by any one or only some of a person's sexually differentiated features such as gonadal, genital or chromosomal characteristics to the exclusion of a person's brain sex or psych and a person's lived or cultural sex. Of further significance is Justice Chisholm's finding, now strongly affirmed by the Full Court, that "... in my view the evidence demonstrates (at least on the balance of probabilities) that the characteristics of transsexuals are as much "biological" as those of people thought of as inter-sex". At the same time Justice Chisholm found and the Full Court has affirmed, that like marriage, a person’s sex is not a private matter alone to be subject only to individual assertion and that there is a cultural element to the legal assessment or determination of an individual’s sex.
6. Those commentators who have proclaimed the radical nature of the decision of Justice Chisholm in Re Kevin, with comments as to how ‘brave’ his Honour was, seem to me to betray either a contrary opinion on the fundamental issue of the nature of transsexualism more comfortable with that espoused by traditional cultural prejudice or their own previously published opinion or have not really read or understood his Honour’s judgement and have been drawn to speak or write about the case without real consideration simply because of its notoriety. The fundamental conclusions his Honourhe reaches in his judgement in Re Kevin, rather than being radical, naturally follow from the established Australian Common law and the evidence both before him and as presented in all the reviewed cases.
7. Reference is made to the following passages in Justice Chisholm's judgement all of which have been specifically affirmed by the judgment of the Full Court of the Family Court of Australia:
7.1 At paragraph 247: "In my view the expert evidence in this case affirms that brain development is (at least) an important determinant of a person’s sense of being a man or a woman. No contrary opinion is expressed. All the experts are very well qualified. None was required for cross-examination, nor was any contrary evidence called".
7.2 At paragraph 248: "In my view the evidence is, in essence, that the experts believe that the brain development view is likely to be true, and they explain the basis for their beliefs. In the circumstances, I see no reason why I should not accept the proposition, on the balance of probabilities, for the purpose of this case."
7.3 At paragraph 252: "The traditional analysis that they are "psychologically" transsexual does not explain how this state came about. For example, there seems to be no suggestion in the evidence that their psychological state can be explained by reference to circumstances of their upbringing. In that sense, the brain sex theory does not seem to be competing with other explanations, but rather is providing a possible explanation of what is otherwise inexplicable".
7.4 At paragraph 253: "In other words (as I understand it) the brain of an individual may in some sense be male, for example, though the rest of the person’s body is female".
7.5 At paragraph 265: "In my view the argument in favour of the "brain sex" view is also based on evidence about the development and experience of transsexuals and others with atypical sex-related characteristics. There is a vast literature on this, some of which is in evidence, and I can do no more than mention briefly some of the main points".
7.6 At paragraph 268: "It seems quite wrong to think of these people as merely wishing or preferring to be of the opposite sex, or having the opinion that they are".
7.7 At paragraph 270: "But I am satisfied that the evidence now is inconsistent with the distinction formerly drawn between biological factors, meaning genitals, chromosomes and gonads, and merely "psychological factors", and on this basis distinguishing between cases of inter-sex (incongruities among biological factors) and transsexualism (incongruities between biology and psychology) ".
7.8 At paragraph 272: "in my view the evidence demonstrates (at least on the balance of probabilities) that the characteristics of transsexuals are as much "biological" as those of people thought of as inter-sex".
7.9 At paragraph 136: "I agree with Ms Wallbank that in the present context the word "man" should be given its ordinary contemporary meaning. In determining that meaning, it is relevant to have regard to many things that were the subject of evidence and submissions. They include the context of the legislation, the body of case law on the meaning of "man" and similar words, the purpose of the legislation, and the current legal, social and medical environment. These matters are considered in the course of the judgment. I believe that this approach is in accordance with common sense, principles of statutory interpretation, and with all or virtually all of the authorities in which the issue of sexual identity has arisen. As Professor Gooren and a colleague put it:- "There should be no escape for medical and legal authorities that these definitions ought to be corrected and updated when new information becomes available, particularly when our outdated definitions bring suffering to some of our fellow human beings. "