In Re Kevin (Validity of Marriage of Transsexual)

[2001] FamCA 1074

FAMILY LAW ACT 1975

FAMILY COURT OF AUSTRALIA
AT SYDNEY FILE NO: SY8136 OF 1999

BETWEEN	KEVIN AND JENNIFER (Applicants)
AND	ATTORNEY GENERAL FOR THE COMMONWEALTH (Respondent)

Date of Hearing:	30^th April, 1^st & 2^nd May 2001
Date of Judgment:	12^th October 2001

JUDGMENT OF THE HONOURABLE JUSTICE CHISHOLM

APPEARANCES:	Ms Rachael Wallbank of Wallbanks Solicitors [1 Marion St, Strathfield Sydney NSW 2135, PO Box S423, Homebush South NSW, 2140] appeared on behalf of the applicants.
Mr Henry Burmester QC and Ms Kate Eastman of counsel [instructed by Ms Sonja Marsic, Principal Solicitor, 133 Castlereagh St, Sydney, DX 444 Sydney], appeared on behalf of the Attorney-General for the Commonwealth.

IN RE KEVIN (VALIDITY OF MARRIAGE OF TRANSSEXUAL)

HEADNOTE

File Number: Sy 8136 of 1999

Date of Judgment: 12 October 2001

Coram: Chisholm J

MARRIAGE - Validity - Application for declaration of validity of marriage between a woman and a female to male post operative transsexual - Whether the person's sex must be determined solely by reference to genitals, chromosomes, and gonads at time of birth - Whether other matters may be taken into account - Whether Corbett v Corbett (otherwise Ashley) [1971] P. 83 represented Australian law.

The applicants, who went through a ceremony of marriage on 21 August 1999 applied for a declaration of the validity of that marriage. The issue involved was whether the husband was a man at the date of the marriage. The question arose because he was a post-operative female to male transsexual.

The applicants submitted that the husband was a man for the purpose of the marriage law, and that Court should declare that the marriage is valid. The Attorney-General intervened and submitted that the husband was not a man for the purpose of the law of marriage, and that the application should therefore be dismissed. He relied on Corbett v Corbett (otherwise Ashley) [1971] P. 83.

Facts

The husband was identified as a girl at birth and named Kimberley (not the real name). His genitalia and gonads were female, and he had and continues to have female (XX) chromosomes. However for as long as he could remember, he perceived himself to be male. Despite pressure to dress and behave as a girl, he wore boys’ clothes whenever he could, refused to play with girls’ toys, had many attributes of a boy, and saw himself as a boy, while growing up. He described his adolescence, and the feminisation of his body, as a “time of pain and dread”. He was harassed at times at school because of his male attitude and appearance. During his adolescence and early adult years he kept most of his thoughts to himself and felt extremely alienated from people.

From 1994 he generally presented as a male, wearing trousers and shirts to work. In mid 1995 he saw an article about sex reassignment treatment, and he had feelings of relief and excitement upon learning of other people like him, and of how they had "discovered the medical means to express their true sex as men.” He embarked on hormone treatment in October 1995. This led to coarse hair growth on his face, chest, legs and stomach, and a deeper voice. In November 1997 he had surgery to reduce his breasts to male size. In September 1998 he had further surgery: a total hysterectomy with bilateral oophorectomy. The surgery constituted "sexual reassignment surgery” within the meaning of Section 32A of the Birth Deaths and Marriages Registration Act 1995 (NSW). As a result, his body was no longer able to function as that of a female, particularly for the purposes of reproduction and sexual intercourse.

The parties met in 1996, and Kevin told Jennifer of his transsexual predicament. She perceived him as a man, and supported his desire “to bring his body into harmony with his mind”. They started living together in February 1997 and agreed to marry. In May 1997, Kevin changed his given name from Kimberley to Kevin. In September 1997 the couple applied successfully to an IVF program and Jennifer became pregnant by an anonymous sperm donor. The expert team concluded that Kevin "should be considered male biologically and culturally" and that the parties should "be considered a heterosexual couple with infertility consequent to absent sperm production".

In March 1998 Jennifer changed her family name to Kevin’s. In October 1998 Kevin obtained a new Birth Certificate on which his sex was shown as male. Jennifer gave birth to a male child in November 1999. In August, having disclosed the relevant medical history to the marriage celebrant, they were married and a marriage certificate was issued.

At the date of the marriage Kevin's male secondary sexual characteristics were such that he would have been subject to ridicule if he had attempted to appear in public dressed as a woman; he could not have entered a women’s toilet; and he was eligible to receive an Australian passport showing his changed name and stating his sex as male. He has been treated as a man for a variety of legal and social purposes, including his employer, Medicare, the Tax Office and other public authorities, banks, and clubs. Evidence from numerous family, friends and work colleagues testified to his acceptance as a man and to the acceptance of him as a husband and father.

Psychiatric examination of Kevin revealed, in summary, that there was no evidence of psychosis or delusional disorder; that Kevin “presented as an intelligent, emotionally warm man who would be accepted socially as completely masculine”; that his “brain sex or mental sex" was male; and that he "is psychologically male and that this has been the situation all his life".

Issues and arguments

The applicants tendered expert medical evidence from a number of specialists about the nature of transsexualism and related matters. They submitted that this evidence indicated that "brain sex" was an important or even defining aspect of a person's sexual identity. The Attorney-General submitted that the evidence did not permit such conclusions to be drawn.

For the applicants, it was submitted that the word "man" should be given its ordinary contemporary meaning. For the Attorney-General, it was submitted that the word "man" should be given its meaning as at the date of the Marriage Act 1961, and that meaning was as formulated in Corbett v Corbett (otherwise Ashley) [1971] P. 83.

For the Attorney-General, it was submitted that the decision in Corbett v Corbett was correct and represented Australian law. Accordingly, since the husband at birth had female chromosomes, genitalia and gonads, for the purpose of the law of marriage he must be treated as a woman, notwithstanding any facts relating to his psychology or role in society, and notwithstanding that he had undergone sex reassignment measures, including hormone treatment and surgery.

For the applicants, it was submitted that Corbett does not represent Australian law. Regard could properly be had to other matters than those indicated in Corbett, including psychological aspects or "brain sex", the person's role in society, and the consequences of medical reassignment. Having regard to those matters, and to the ordinary contemporary meaning of "man", Kevin should be held to have been a man at the date of the marriage.

The Court welcomed the Attorney-General's intervention and acknowledged the assistance it received from the thoughtful and helpful submissions by Mr Burmester QC on his behalf, and from the Attorney-General's assistance to the applicants in the presentation of their case. In the result, the Court had the advantage of extremely detailed and scholarly presentations on each side, as well as evidence from some of the most distinguished medical experts in the world in this field.

The judgment discusses medical evidence relating to transsexualism and related matters, and considers legal developments in a number of countries.

Held, granting a declaration that the marriage was valid:-

For the purpose of ascertaining the validity of a marriage under Australian law, the question whether a person is a man or a woman is to be determined as of the date of the marriage.
There is no rule or presumption that the question whether a person is a man or a woman for the purpose of marriage law is to be determined by reference to circumstances at the time of birth. Anything to the contrary in Corbett v Corbett (otherwise Ashley) [1971] P. 83 does not represent Australian law.
Unless the context requires a different interpretation, the words “man” and "woman" when used in legislation have their ordinary contemporary meaning according to Australian usage. That meaning includes post-operative transsexuals as men or women in accordance with their sexual reassignment.

R v Harris and McGuiness (1988) 17 NSWLR 158; Secretary, Department of Social Security v SRA (1993) 118 ALR 467, followed.

The context of marriage law, and in particular the rule that the parties to a valid marriage must be a man and a woman, does not require any departure from ordinary current meaning according to Australian usage of the word “man”.
There may be circumstances in which a person who at birth had female gonads, chromosomes and genitals, may nevertheless be a man at the date of his marriage. In this respect, the decision in Corbett v Corbett (otherwise Ashley) [1971] P. 83 does not represent Australian law.
In the present case, the husband at birth had female chromosomes, gonads and genitals, but was a man for the purpose of the law of marriage at the time of his marriage, having regard to all the circumstances, and in particular the following:-

(a)He had always perceived himself to be a male;
(b)He was perceived by those who knew him to have had male characteristics since he was a young child;
(c)Prior to the marriage he went through a full process of transsexual re-assignment, involving hormone treatment and irreversible surgery, conducted by appropriately qualified medical practitioners;
(d)At the time of the marriage, in appearance, characteristics and behaviour he was perceived as a man, and accepted as a man, by his family, friends and work colleagues;
(e)He was accepted as a man for a variety of social and legal purposes, including name, and admission to an IVF program, and in relation to such events occurring after the marriage, there was evidence that his characteristics at the relevant times were no different from his characteristics at the time of the marriage;
(f)His marriage as a man was accepted, in full knowledge of his circumstances, by his family, friends and work colleagues.

For these reasons, the application succeeds, and there will be a declaration of the validity of the applicants’ marriage.
PART ONE: INTRODUCTION
The applicants went through a ceremony of marriage on 21 August 1999. They now apply for a declaration of the validity of that marriage. The issue involved is whether the husband was a man at the date of the marriage. The question arises because he is, to use the phrase in the Attorney-General’s submissions, a “post-operative female to male transsexual”. The applicants say that the husband is a man for the purpose of the marriage law, and that Court should declare that the marriage is valid. The Attorney-General submits that the husband is not a man for the purpose of the law of marriage, and that the application should therefore be dismissed.
Australian law has not yet determined the basis for ascertaining whether a person is a man or a woman for the purpose of marriage law. That is the issue I need to determine. Although it is a matter of first impression in Australian law, the problem is a familiar one. It has been addressed by courts in many countries, and given different answers. It will be necessary to consider those decisions, and also medical evidence relating to transsexualism and related matters, before reaching a conclusion.
The Attorney-General has intervened in the application and has made submissions contrary to it. I welcome his intervention. The thoughtful and helpful submissions by Mr Burmester QC on his behalf have been of enormous assistance to the Court in marshalling the relevant material and understanding the issues. As I understand it, the Attorney-General has also provided some funding to assist the applicants in the presentation of their case. In the result, the Court has had the advantage of extremely detailed and scholarly presentations on each side, as well as evidence from some of the most distinguished medical experts in the world in this field. I am very grateful.
The Attorney-General relies on submissions of law, founded to a considerable extent on the 1971 English decision in Corbett, which will need close consideration. He tendered no evidence, and elected not to cross-examine the applicants or their witnesses. Apart from some issues of admissiblity that I will consider in due course, the applicants’ evidence is therefore unchallenged.
I will refer to the husband as “he”. By doing so, I extend to him the same courtesy that has normally been extended to litigants in similar cases, and which has been extended to him in argument in this case. Use of this language does not indicate that I have pre-judged the issue. To preserve the anonymity of individuals, I have used fictional names for the applicants and the witnesses.

The legal framework

Both parties accept that a valid marriage for the purpose of the Marriage Act 1961 (Cth) must be between a man and woman.[1] The origins of the definition of marriage are traditionally traced to the following statement by Lord Penzance in Hyde v Hyde (1866):[2]
I conceive that marriage, as understood in Christendom, may … be defined as the voluntary union for life of one man and one woman, to the exclusion of all others’.
While marriage is not expressly defined, both the Marriage Act and the Family Law Act 1975 contain sections that confirm the above proposition. Section 43(a) of the Family Law Act refers to the need to preserve and protect "the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life". And under the Marriage Act, the words to be said by a celebrant when solemnising a marriage include the same language.[3] That definition has been adopted for the purpose of Australian law in many cases.[4]
The present application is for a declaration as to the validity of the marriage. The Act provides for such declarations. The Court has jurisdiction over matrimonial causes. “Matrimonial cause” includes proceedings for a declaration of the validity of a marriage.[5] Section 113 provides that in such proceedings, the Court may make such declaration as is justified. There is a clear constitutional basis for these provisions: the Parliament has power to make laws in relation to marriage.[6]
This case does not involve any application for a decree of nullity, and thus does not raise the technical issue whether such a decree could be granted on the ground that the parties are not respectively a man and a woman.
Finally, there is no suggestion that the issue in this case depends on the exercise of any discretion. If the applicants are correct and Kevin was a man at the time of the marriage, they will have their declaration. If the Attorney-General is correct, their application will be dismissed.

Some basic matters

In this section I deal with some matters that are significant in understanding this judgment.
Kevin is a person of a kind often referred to in the literature as a transsexual. It is useful to distinguish this term from other concepts with which it is sometimes confused. In this judgment I will generally use “transsexual” to mean a person who has some or all of the physical or biological characteristics of one sex, but who experiences himself or herself as being of the opposite sex, and has undergone hormonal and surgical treatments to change some of the physical characteristics in order to conform more closely to the opposite sex.
The word poses some problems. The word “transsexual” may suggest a sexual transition,[7] a passing from one sex to the other. While that may reflect the physical changes associated with surgery or hormone treatment, it does not convey the fact that transsexuals say that they have always experienced themselves as belonging to the other sex, before as well as after the hormone or surgical procedures. The word suggests a particular answer to some of the issues that I need to address in this case, and I mention this mainly to explain that I do not intend to pre-judge any of the issues by the use of this term.
Further, I am conscious that using the word "transsexual" as a noun may tend to have a dehumanising effect. In recent years we attempt to remove such effects by a more careful use of language, for example by referring to "people with handicaps" rather than "the handicapped". Such usages are sometimes mocked as "political correctness", but I think they represent an honourable and civilised attempt to use language that reflects the essential humanity of the people being described. However no suitable alternative is evident, and the word is used in the applicants' submissions, so I will adopt it, although I will attempt to minimise its use.
A transsexual is not the same as a homosexual.[8] A homosexual is one who is attracted sexually to members of the same sex. Similarly a transsexual is not the same as a transvestite. A transvestite is someone who dresses in the clothes of the other sex. A transsexual might or might not be a homosexual.[9]
Next, I should say something about the use of the terms “sex” and “gender”. The words are used in various ways. Their usage depends in part of what the speaker understands to be the nature of sexual identification. Thus, as will be seen, Ormrod J in Corbett drew a sharp distinction between the two. However this distinction presupposed that there was a fundamental difference between a person’s sense of self, which he treated as a matter of psychology, and the person’s “true sex” which he treated as equivalent to three biological characteristics, namely chromosomes, genitals and gonads (where they are concordant). As will be seen, today medical experts think it likely that a transsexual’s sense of self derives from a (biological) characteristic of the brain. In this judgment I will use “sex” as a way of referring to a person as a man or a woman: a man’s sex is male and a woman’s is female. I will also treat the adjectives “male” and “female” in the same way,[10] although of course these adjectives can refer to children (a boy is a male child, though not a man) and to other animals (a dog may be male, but not a man).[11] In the present context, “gender” is often used to refer to such matters as the person’s self image and role in society. For the purpose of this judgment, I would prefer not to use such terms in a highly defined way, since doing so can lead to the begging of questions. For simplicity, I will generally avoid the word “gender”, and will consider in due course the extent to which non-biological matters might be taken into account in determining whether a person is a man or a woman for the purpose of the law of marriage in Australia.
I should say something about issues that do not arise in this case. In the common law tradition, courts decide the issues that arise from the evidence and argument. In this case, the issue is whether Kevin, a post-operative female to male transsexual person, is a man. Each party made submissions on the basis that Kevin is either a man or a woman. Some writers point out that in some ways at least, this dichotomy is socially constructed, and can be regarded as part of the problem. Thus one writer refers to “the inadequacy of our society’s two-sex, two-gender system of organising and regulating sexual identity”.[12] From this point of view, it could be argued that the problem of assigning one sex or other to transsexuals is caused in part by social arrangements that require them to be assigned to one category or the other.[13] Thus one writer proposes that we "make one of the fundamental human rights not the answer to the question “Am I a man or a woman”, but the right not to have the question asked at all”.[14] Others would argue that a departure from the two-sex approach is unlikely. As Douglas Smith put it in a seminal article:-[15]
The cultural, religious and moral assumptions that man can be divided into two clearly identifiable and distinct sexes quite naturally became embedded in the law despite its inaccuracy… The modern approach considers human sex to be a continuum ranging from the nonexistent "pure" female to "pure" male…
It is probably impractical for the law to abandon the two-sex assumption. The law must deal with social practicalities, not medical niceties, and most people are clearly male or clearly female…

I mention this only to indicate that these issues were not raised in argument and, as will be seen, I do not need to deal with them to resolve this case. There was no submission that any intermediate position is open to me in these proceedings.[16] In these proceedings, I must determine that Kevin is either a man or a woman for the purpose of the marriage law.
Next, I do not need to consider the situation of a pre-operative transsexual in the context of marriage, and I do not intend to make any ruling on such cases. I will refer later to Australian authorities in areas other than marriage, recognising post-operative but not pre-operative transsexualism, but I do not intend to engage in the discussion of whether it is appropriate to draw the line in this way, in the context of marriage or any other area of law.
Next, the case does not raise any issue about homosexual relationships and marriage.[17] As I have said, transsexualism is different from sexual orientation. It happens that Kevin is heterosexual,[18] but this has nothing to do with this case: the validity of a marriage between a man and a woman is not affected by either party’s sexual orientation or preferences.
Finally, the case requires me to make a decision about one individual. Much of the discussion in the cases and the literature is about transsexuals in general terms, and it is necessary to speak in this way in this judgment. There was no evidence or argument about whether there are degrees of transsexualism, or whether people whose characteristics are different from Kevin’s should be categorised as men for the purpose of marriage law. For this reason, I will make specific findings about the evidence relating to Kevin. As is inevitable in the common law system, questions relating to people who have different characteristics will have to be determined if and when they arise. It would not be appropriate for me to attempt to formulate the decision in a form that would be appropriate for the legislature, although I will try to identify the relevant legal principles to the extent that is necessary to resolve this case.

PART TWO: THE FACTS

Introduction

In this Part I deal with the facts of this case, including the medical evidence relating to Kevin. After stating the basic story, I will deal in more detail with certain evidence, namely evidence from friends, colleagues and relatives and what I might call the "specific" medical evidence. That evidence deals with the process of Kevin's sex-reassignments procedures, with the artificial insemination treatment, and with examinations by psychiatrists of Kevin's mental state. I deal much later with what I might call the "general" medical evidence, relating to the nature of transsexualism and other matters. Of course, there is a degree of overlap between the specific and the general medical evidence.
Kevin was born in 1965 and given the name Kimberley. His birth certificate recorded his sex as "female". No doubt he looked like a girl baby when he was born. There is no direct evidence about the state of his body after birth, but on the available evidence I find that at birth his genitalia and gonads were female, and he had and continues to have female (XX) chromosomes.[19]
But for as long as he could remember, Kevin has perceived himself to be male. When he was a very young child his mother tried to persuade him that he was a girl and that he should behave as a girl. She forced him to dress as a girl on special occasions. She had Kevin and his father stand naked in front of each other to demonstrate that they had different anatomies. None of this worked: he continued to believe he was a boy. He wore boys’ clothes whenever he could. He refused to play with girls’ toys.
Kevin was the oldest of four children: he had three sisters. He saw his relationship with them as being that of an older brother. He would physically defend them, at school and elsewhere, after his father had left the family home. He did some of the physical tasks his father had done, such as mowing the lawns and doing household repairs. His mother gave him “boys’ presents” such as footballs and cars, and made boy's clothing for him. Some family photographs are striking: at age 3, with pistols; at age 8, with a soccer ball and trophy. Most remarkable is a photgraph of Kevin aged about 15 or 16, with his sisters. They are wearing pastel coloured dresses and sandals. He is wearing dark trousers and shoes, and what looks like a boy’s shirt. To my eye, despite the shoulder length hair, he looks as much like a boy as a girl.
Kevin describes his adolescence, and the feminisation of his body, as a “time of pain and dread”. He was harassed at times at school because of his male attitude and appearance. He wore a jacket of the type worn by boys, and students mocked him, saying he was a girl, and asking why he dressed like that. Arguments would sometimes develop into fighting, at which he was adept. He says that during his adolescence and early adult years he kept most of his thoughts to himself and felt extremely alienated from people.
In late 1994 he commenced work with his present employer. Throughout his employment there he generally presented as a male, wearing trousers and shirts to work. In mid 1995 someone showed him an article about sex reassignment treatment, and he can still recall his “feelings of relief and excitement upon learning of other people like me and of how they had discovered the medical means to express their true sex as men.”
Kevin embarked on hormone treatment in October 1995. This led to coarse hair growth on his face, chest, legs and stomach, and a deeper voice. His body was already muscular from sport and lifting weights, but it became more so. He later saw Dr. Anne Conway, an andrologist at the Concord Repatriation General Hospital. Dr. Conway reports that it is likely that he has had a testosterone level in the adult male range since 1995 and certainly since 1997 when he started treatment at her Department.
In November 1997 Dr. Laurence Ho, a plastic surgeon, carried out breast surgery as part of Kevin’s gender reassignment program, reducing them to “suitable male size” by liposuction. Dr. Ho says that Kevin was “very pleased with the result”. In September 1998 he had further surgery: Dr Anne Pike, whose report is also in evidence, performed a total hysterectomy with bilateral oophorectomy.
As a result, Kevin’s body was no longer able to function as that of a female, particularly for the purposes of reproduction and sexual intercourse. Dr Haertsch, a plastic surgeon, has provided evidence that the surgery Kevin has undergone “is sexual reassignment surgery” within the meaning of Section 32A of the Birth Deaths and Marriages Registration Act 1995 (NSW). He has elected not to have further surgery involving the construction of a penis or testes. Such surgery is complex and expensive, and has risks of complications and failure.[20] The Attorney-General has not sought to argue that the sex-reassignment surgery was in any way incomplete or unsuccessful.
Kevin met his wife Jennifer in October 1996. He told her of his transsexual predicament. Jennifer considered that he looked, sounded and acted like a man. She perceived him as a man, although he told her he had been born with a female body. Jennifer interacted with Kevin as a man and observed that others did the same. She supported him in his desire “to bring his body into harmony with his mind”. It was “obvious” to her that he was a man. They started living together in February 1997 and agreed to marry.
In May 1997, Kevin changed his given name from Kimberley to Kevin. In September 1997 the couple made a written request to Sydney IVF Pty Limited for the semen of an anonymous donor to be used in order to enable Jennifer to become pregnant. The request was approved, and the treatment was successful. I will refer to some evidence about this matter later. Jennifer duly became pregnant, and gave birth to a male child in November 1999. The child's birth certificate shows the applicant husband as the father of the child and the applicant wife as the mother. They have since made a second successful application to Sydney IVF Pty Limited.
The couple understood from their initial inquiries that they could not legally marry. They became a de facto couple, and held a “Commitment Ceremony" in December 1997. In March 1998 Jennifer changed her family name to Kevin’s.
Kevin applied to the Registrar of the New South Wales Registry of Births Deaths and Marriages for a new birth certificate showing him to be a male, supplying statutory declarations by two appropriately qualified medical practitioners to the effect that he had undergone the surgery. In October 1998 the Registrar issued Kevin a new Birth Certificate on which his sex is shown as male.[21]
In mid 1999 the couple took the formal steps to get married. They gave the necessary notice to an authorised marriage celebrant, and each made a statutory declaration under the Marriage Act 1961 stating that they believed that there was no legal impediment to the proposed marriage. On 21 August 1999, the celebrant issued a Certificate of Marriage stating, among other things, that she had on that day duly solemnized marriage in accordance with the provisions of the Marriage Act 1961 between the applicant husband and the applicant wife. The validity of this Certificate is disputed by the Attorney-General.
Kevin says, and I accept, that as of the date of the marriage his male secondary sexual characteristics were such that he would have been subject to ridicule if he had attempted to appear in public dressed as a woman, that he could not have entered a women’s toilet, and that he was eligible to receive an Australian passport showing his changed name and stating his sex as male. He was in fact issued with such a passport on 15 March 2000. Since 21 August 1999, Medicare has issued a family card showing the names of the applicant husband, the applicant wife and the child Quentin.
There is a great deal of evidence from family, friends and work colleagues about Kevin’s acceptance as a man, and it is summarised later. In addition, he has tendered evidence that he is referred to and treated as a man by a number of people and organisations. They include his employer, Medicare, the Tax Office and other public authorities, banks, and clubs. He has also shown that various bodies treat him and Jennifer as husband and wife.
Kevin regards his relationship with Jennifer as that of a man and a woman; and since the marriage, as husband and wife. He regards himself as the father of their son. So far as Kevin is concerned, the three of them "are a ‘family’ in every sense of the word”.

Evidence relating to the in-vitro fertilisation procedures in 1998

There is evidence relating to the successful artificial insemination procedures in 1998. Kerry McGowan is the senior social worker at the Dept. of Reproductive Endocrinology and Infertility at the Royal Prince Alfred Hospital, and is highly qualified. She first met Kevin when the parties approached the unit in September 1997 requesting treatment for Jennifer with anonymously donated sperm so that she could become pregnant and give birth to a child that the parties would raise together as the child’s parents. She interviewed the parties for the purpose of assessing their application and taking consent. She formed the opinion that they were a committed and loving couple who had “a supportive circle of relative and friends.” She noticed that their respective families were fully aware of Kevin’s transsexual history and that Kevin at some future time intended to discuss his transsexual history with his child.
Ms McGowan says that the application was considered at a meeting of the Fertility and Andrology team on the 6 April 1998. This team meeting was attended by medical, nursing, counselling and scientific clinicians. It was headed by Professor Robert Jansen, who was then responsible for the decisions of the team as Head of the Department at the hospital. After considering the issue of Kevin’s transsexual history, the team’s decision was that they were a heterosexual couple and that Jennifer be approved for treatment in that context using donor semen. Ms. McGowan says that in her opinion, Kevin’s transsexual history “should not prevent him being considered a man for the purpose of marriage or disentitle [the parties] from being legally married as man and wife.”
Professor Jansen is the Head of the Department of Reproductive Endocrinology and Infertility at the Royal Prince Alfred and King George the V hospitals in Sydney. He is a clinical professor at the University of Sydney, and the Medical and Managing Director of Sydney IVF Pty. Ltd. He has many publications and has a distinguished career in the field. Professor Jansen confirms the matters stated by Ms McGowan. He comments that the Fertility and Andrology Team then consisted of a number of specialist gynecologists and physicians as well as specialist nursing staff and specialist biologists. He says that for the purpose of determining the application, the team considered a report from the gynecologist who had interviewed the couple and who had recommended that they be regarded as a couple for infertility treatment employing donated semen. The team also considered the report of Ms McGown. Professor Jansen continues:
in taking into account the biology of sexual differentiation and gender determination, the Fertility and Andrology Team formed the opinion, with which I concurred completely, that Kevin should be considered male biologically and culturally and that, accordingly, it was decided that Kevin and Jennifer be considered a heterosexual couple with infertility consequent to absent sperm production.
He goes on to say that in his opinion Kevin’s transsexual history should not prevent him being considered a man for the purpose of marriage or disentitle the couple from being legally married as man and wife.

Examination and reports by psychiatrists

The next area of specific medical evidence consists of psychiatric reports on Kevin. Professor McConaghy is a highly qualified psychiatrist whose publications include a book on sexual behaviour, problems and management. He interviewed Kevin on 16 May 2000. He said that Kevin “presented as an intelligent, emotionally warm man who would be accepted socially as completely masculine.” In the interview, Kevin “presented as an intelligent and honest person, and his story was so typical as to convince me of his honesty”.
Professor McConaghy answered a number of specific questions. He said that he believed that Kevin’s “psychological sex is male” and was so on 21^st August 1999 (the date of the marriage). He said that he relates to the significant people in his life and society generally as a male and did so on the 21^st August 1999. He said that he experienced the significant people in his life and society generally as treating him as a man now, as they did on 21^st August 1999.
Professor McConaghy wrote that he believed Kevin’s “brain sex or mental sex is male”. He then refers to Professor Milton Diamond, and writes “I agree with his opinion that further research will confirm the present evidence that brain sex or mental sex is a reality which would explain the persistence of a gender identity in the face of or contrary to external influences”.
Kevin was also examined by Dr. Cornelis Greenway, who is a consultant psychiatrist of considerable experience and a Fellow of the Royal Australian and New Zealand College of Psychiatrists since 1981. He has had a good deal of experience of patients with gender identity difficulties and this interest and involvement has been present through much of his clinical work. He saw Kevin on the 9^th May 2000. Dr. Greenway said that on examination, “there was no evidence of psychosis or any evidence of organic deficit". He noted that Kevin presented his history “in a very matter-of-fact way and does not come across as histrionic”. Under the heading “Opinion”, Dr. Greenway wrote:-
After considering the history as given by Kevin, and Kevin’s presentation on interview there is no doubt in my mind that Kevin is psychologically male and that this has been the situation all his life. There is also no doubt that as far as Kevin is concerned he is a male and has always been a male. From the history provided by him, there is little doubt that people that know him consider him as a male and relate to him as a male. This certainly appears to have been the case on the 21^st August 1999 when he got married.
I do not believe that Kevin’s perception of himself, as a male is a result of a psychosis, nor of a delusional disorder. I do not believe that he is suffering from a body dysmorphic syndrome.

The non-medical evidence

In this section I deal with the evidence of 39 witnesses, 23 who are family and friends of the husband and 16 others who are work colleagues or acquaintances. It is not necessary to quote them all, but I wish to provide enough detail to convey the vividness and concreteness of the evidence.
Some witnesses are from Kevin’s family of origin. Cliff is an uncle who has known Kevin all his life. It was no surprise when Kevin decided to “change his gender publicly to that of a male”. He had “always known” that Kevin was not really a female:
From the time he was little Kevin had always, walked, talked, dressed, behaved and had the attitude of a male. Kevin always enjoyed playing sports such as soccer and played male childhood games. I cannot recall ever seeing Kevin playing girls games or behave as a girl
Selena, who is a cousin aged 23, has known Kevin all her life. She is married and a mother of three children. She says:
I cannot recall Kevin showing any interest in the type of games or the toys that girls preferred. Kevin always seemed to play with my brother…. rather than to play girls’ games with me. As we grew older it became clear to me that Kevin was uncomfortable whenever he was asked to behave or dress as a female. At formal functions Kevin would wear pants and a shirt even when these occasions were “black tie”.
Selena goes on to say that over the last three years she has spent a lot of time with Kevin, and in her opinion “he is and always has been a male rather than a female”. She speaks of his courage in successfully dealing with his predicament. Selena speaks highly of the parties as parents and says “they are just another married couple living their lives with their son.” She writes:-
Now if you didn’t know Kevin’s history you would take him to be a man, just like any other man and would never be aware of his background.
Darcy, aged 29, is another cousin of Kevin. He has stayed in touch with him since childhood. He wrote:-
When I was young Kevin and I used to play footy, soccer and cricket and ride BMX bikes on family outings. Kevin never played with the girls. Instead, he would join with me in teasing them. Kevin has always behaved like a male as long as I have known him. I was pleased for Kevin when he realised his public male identity and married Jen and as far as I am concerned he is a fine husband and father to Quentin.
Regina, an aunt by marriage to Kevin who has known him since he was born and has had regular contact with him through family visits and outings, writes:
As a very small child Kevin showed masculine behaviour. His basic instincts and actions were male. He preferred to play with boys’ toys and preferred to dress as a boy. Over the years Kevin’s discomfort when being obliged to appear as a female became more and more obvious as did his naturalness in expressing his maleness.
Regina goes on to express her admiration for Kevin’s courage. She writes that the applicants appear to her and, she thinks, to the general community, “to be your average mum and dad with a much loved little boy.”

Another group of witnesses met Kevin in 1990 or thereabouts. At that stage Kevin was known as Kimberley.
Deirdre is a friend who met the parties in 1990 and saw them regularly as neighbours and friends. She describes Kevin as always being “very masculine in his behaviour and outlook”. Similar evidence is given by Phillip, married to a cousin of Kevin. Phillip says that he and Kevin have played various sports together, including rugby league, soccer and cricket as well as going on fishing trips together. He says as far as he is concerned “Kevin is one of the boys and always has been since I have first met him.”
Mary met Kevin in 1990. Mary says that they played golf, baseball and went out socially. Since 1994 she has been a fellow employee with Kevin. Mary says that prior to Kevin’s transition of public genders in 1997, his personality and his actions were very masculine; including his dancing and the way he played sport as well as the way he conducted himself socially. She wrote that he is a well-liked and respected member of her team at work. She says that Kevin “is happier now that he can more fully express the man he has always been”.
Charles is another close family friend, having met Kevin in 1990. Kevin told Charles and his wife that he intended to live exclusively as a man and go through the medical procedures of sex reassignment. Charles says that he was not shocked when he had heard the news as he had "always had an inkling of the sort”. He says Kevin had always taken the male role and had always done the traditional male type of things (“typically male work around his house”) and had always behaved that way. If he had not known of Kevin’s past, he would have
absolutely no reason to believe he was not born with a male body. Kevin’s appearance, physique, mannerisms, speech, attitude and interests all demonstrate his maleness.
Similar evidence is given by Anthea, a close friend since 1990. When Kevin told her about his plans in 1997 she was not shocked; she thought she was going to have that conversation with him one day; it was “only a matter of time”. She says Kevin had never been a “girlfriend” and Anthea never took him as being feminine at all. She always knew he was very different from her even before he publicly identified himself as being male. Consequently, it was easy for her to accept him as a man:
He hadn’t changed. He was now only fully being the male person he’d always been.
Another group of witnesses are members of Jennifer’s family and circle of friends. The wife’s mother, Kevin’s mother-in-law Sylvia, is a retired schoolteacher in her sixties. She met Kevin at Christmas 1996 when her daughter introduced him. She says that Kevin has always been clearly male in his behaviour and as has always dressed, spoken and moved like a man. She says his interests and activities have always been those of a man:
I recall when I first started visiting his home my impression was that although he had expertly landscaped the garden and the surrounds of his home, the inside of his home revealed a bachelor-like Spartan appearance.
Sylvia readily accepted her daughter’s advice that Kevin was undergoing sex re-assignment. Her friends and acquaintances all freely accepted Kevin as a man and as her son-in-law, knowing of his transsexual background. Sylvia wrote of her pride in Kevin and Jennifer “as a man and wife”, and as father and mother to her grandson. Kevin helped her in practical ways, and did most of the repairs for her around her home.[22] She wrote, movingly, “There is no other man anywhere who I would prefer to have as my daughter’s husband”.
Matthew is Kevin’s father-in-law. He first met him in 1997. He states:
Since meeting him my singular impression of him has been that he is definitely masculine in his thinking and manner. This opinion was formed particularly by my observations of Kevin in his interaction with Jennifer, his interests, his aptitude in respect of home maintenance and building work and the manner in which he has fulfilled his role as husband and father in his family life.
Other friends and relatives on Jennifer’s side of the family give similar evidence. They use phrases such as “a fine young man and a fine citizen who I am happy to support”, “just another man like me”, and “the typical Aussie bloke”. They speak of their support for the couple and for Kevin “as a man, as a husband to Jennifer and as a father to his son." One friend notes that she has never observed people treating Kevin as anything other than a man.
Other witnesses represent friends and work colleagues who have met Kevin in recent years. The evidence given by these 16 work colleagues and acquaintances has a consistent theme. The witnesses have had no difficulty accepting Kevin as a man at work and socially, and they support his application to have his marriage as a man recognised as valid. Another theme is that people who knew Kevin and Jennifer saw their relationship as one between a man and a woman. I will mention some particular examples.
Some of these witnesses knew Kevin at the time of the re-assignment surgery. An example is Hassan, who says that Kevin spoke to his work mates in 1997 announcing his intention to undergo sex re-assignment procedures. This came as no surprise to Hassan, as Kevin’s “male behaviours and traits” were noticeable and quite obvious.
Others met Kevin after the surgery. For example, Edward first met Kevin in early 1998, unaware of his transsexual history. He says that he considers him to be “nothing other than a man”, and that had he not been informed of Kevin’s transsexual history he would “never had had cause to question Kevin’s manhood at all”. The same point is made several other witnesses, including a bank loans consultant, and the secretary working at the bakery where Kevin is employed. A nurse who interviewed the couple as part of the ante-natal program described them as “a normal happy young family” and learned of Kevin’s sexual history only when preparing her affidavit.
Finally, there is the evidence of the bakery manager himself. He had met Kevin in October 1997, and they worked in the same office since that time. He had heard a rumour that one of the staff who worked at the bakery had undergone a sex change operation. But he was surprised to be told, six months later, that it was Kevin. This is a striking example: the manager, having heard that a member of his staff had been through a sex change operation, for six months did not suspect that it was Kevin, a man working with him in the same office.

Summary and conclusions

All of these witnesses conclude their affidavits with a statement to the effect that they support the parties’ application to be recognised as a legally married man and wife. Mr. Burmester raised the admissibility of such statements. In my view the statements are admissible for a limited purpose, namely to show that these witnesses perceive the parties as man and wife. They see no inconsistency in the law recognising the validity of the marriage. This is by no means decisive. But it is a part of the picture.
The cumulative impact of the evidence of these 39 witnesses is striking. It shows the husband as perceived by those involved with him in his family, at work, and in the community. It shows him as a person: not an object of anatomical curiosity but a human being living a life, as we do, among others, as a part of society. It shows him living a life that those around him perceive as a man's life. They see him and think of him as a man, doing what men do. They do not see him as a woman pretending to be a man. They do not pretend that he is a man, while believing he is not.
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.

PART THREE: THE CORBETT DECISION

According to the decision in Corbett, whether Kevin is a man depends on whether he was a male at the time of birth, this being determined by a three-point biological test, involving his gonads, genitals and chromosomes. On this test, Kevin would be legally a woman for the purpose of marriage law, having been born with female gonads, genitals and chromosomes. Nothing that happened since his birth would be taken into account, and thus all the evidence just set out would be completely irrelevant. If Corbett represents the present law in Australia, the Attorney-General is right and the application must fail.
The decision of Ormrod J in Corbett has been treated as the starting point for analysis in many later decisions. However 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.[23]
I have come to the conclusion that its reasoning is not persuasive. Because of the complexity of the reasoning and because the decision is the lynch-pin of the respondent's case, I will need to explain my conclusions with some care. I have benefited greatly from the voluminous literature on the case. The commentators are commonly critical about the consequences of the decision.[24] There has also been “sustained criticism” of certain passages, especially one referring to the “essential role” of a woman in marriage.[25] A more recent theme is that the decision, even if correct or defensible at the time, needs reconsideration in the light of medical knowledge, and legal and social changes, since 1970.[26] These are important matters, and will be considered. However I will mainly focus on the reasoning itself, which I consider to be flawed.
It will be necessary to identify whether particular propositions in the reasoning are statements of fact or of law. I take it to be a question of law what criteria should be applied in determining whether a person is a man or a woman for the purpose of the law of marriage, and a question of fact whether the criteria exist in a particular case.[27]
April Ashley was a male to female post-operative transsexual. She married a man, and thus the question was whether she was a woman, as she contended, and therefore her marriage was valid. There were also issues relating to a separate ground for nullity, namely incapacity to consummate the marriage. No such issue arises in this case, since there is no equivalent provision in Australian law. So I will omit those parts of the judgment.
Ormrod J reviewed the evidence in detail. He concluded[28] that the respondent had XY chromosomes and was therefore “of male chromosomal sex”. She had had testicles prior to the operation and was therefore shown to be “of male gonadal sex”. She had male external genitalia without any evidence of internal or external female sex organs and was therefore “of male genital sex”. Psychologically, she was “a transsexual”.
Socially, Ormrod J said, by which he meant the manner in which she was living in the community, “she is living as, and passing as a woman, more or less successfully”. However on closer examination, he said, the feminine appearance became less convincing. Ormrod J then continued:
It is common ground between all the medical witnesses that the biological sexual constitution of an individual is fixed at birth (at the latest), and cannot be changed, either by the natural development of organs of the opposite sex, or by medical or surgical means. The respondent’s operation, therefore, cannot affect her true sex.
In my view this is a key passage. Earlier, Ormrod J had stated that the validity of the marriage depended on the “true sex” of the respondent.[29] Taking the passage in context, I believe the argument is as follows:-
1.   The biological sexual constitution of all individuals is fixed at birth and cannot be changed (major premise)
2.   Ms Ashley's biological sexual constitution at birth was male (minor premise).
3.   Therefore Ms Ashley's biological sexual constitution remains male (conclusion).
4.   Therefore, Ms Ashley's true sex is male.
5.   The validity of the marriage depends on Ms Ashley's “true sex”.
6.   Therefore, the other party being a man, the marriage is invalid.
As suggested by the words in brackets, the first three statements have an impeccable classical logic. But the only basis for Step 4 appears to be that Ms Ashley's "biological sexual constitution" is treated as equivalent to her “true sex”. This apparently subtle shift in terminology is significant. The key issue was whether social and psychological matters were relevant in determining whether April Ashley was a man or a woman. To treat biological sexual constitution as equivalent to true sex excludes these matters, but does so by way of definition: no reason is given for excluding them.
Step 5, apparently a statement of law, involves a similar problem. Elsewhere in the judgment, Ormrod J said, correctly, that the most accurate statement of the question was whether Ms Ashley was a woman.[30] The asserted legal proposition, that “true sex” is the test for the validity of marriage, is true only if "true sex" is the sole criterion of determining whether a person is a man or a woman. The judgment thus again exploits a subtle shift in terminology which gives the impression that an argument has been made, when in fact the proposition to be established is merely assumed.
The reasoning becomes more transparent if the term “true sex” is omitted and the legal principle is stated more accurately in terms of whether a person is a man or a woman. Thus clarified, the argument to this point in the judgment is this:-
1.   The biological sexual constitution of all individuals is fixed at birth and cannot be changed (major premise)
2.   Ms Ashley's biological sexual constitution at birth was male (minor premise).
3.   Therefore Ms Ashley's biological sexual constitution remained male (conclusion).
4.   Whether a person is a man or a woman depends solely on the person's biological sexual constitution.
5.   Since Ms Ashley's biological sexual constitution was male, she was a man.
6.   Therefore, the other party being a man, the marriage is invalid.
It is now possible to distinguish statements of fact from statements of law. Step 1 is a statement of fact, based on Ormord J’s understanding of the evidence.[31] Such statements are general rather than specific, but I do not think such statements can properly be treated as equivalent to propositions of law. It may be appropriate for judges in later cases to assume they are true in the absence of any specific reason to dissent from them. However where evidence is given on the general factual issue, in my view the court must consider the evidence and determine the issue as one of fact.[32]
Step 2 is of course a finding of fact about the individual April Ashley on the evidence in Corbett, and has no wider significance. Step 3 is the logical conclusion of Step 1 and Step 2, as steps 5 and 6 are a logical application of the definition of marriage to the conclusions reached in steps 1-4.
It is now clear that Step 4, which I have highlighted, is the critical step. It is the kernel of the judgment, the fundamental conclusion that congruent biological factors exclusively determine whether a person is a man or a woman. What kind of proposition is it? It purports to be a statement of law, setting out the criteria to be applied in determining whether a person is a man or a woman.
What is remarkable about this proposition is that nothing has been said to support it. No relevant principle or policy is advanced. No authorities are cited to show, for example, that it is consistent with other legal principles. This lack of any supporting argument has been obscured by a definitional sleight of hand, using the term "true sex". 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. To this point in the judgment, therefore, the assertion that the legal criteria for determining whether a person is a man or a woman for the purpose of marriage is the person's "biological sexual constitution" is quite unsupported.
Ormrod J then referred to counsel’s submissions, and commented on reasons why this case might have been the first occasion in which a court in England was called upon to decide “the sex of an individual”. He said that the question must be treated as one of principle.
Ormrod J then set out an elegant and powerful analysis of the relevance of sex in the law. In this well-known passage he said that for the purposes of the case legal relations can be classified into three categories: those in which the sex of individuals is respectively irrelevant, relevant, and the essential determinant. It is irrelevant, he said, in much of the law. It is relevant in some contractual relationships such as life assurance schemes, in which it is relevant in determining the rate of premium or contributions. It is also relevant in laws regulating, for example, national insurance:[33]
It is not an essential determinant of the relationship in these cases because there is nothing to prevent the parties to a contract of insurance or a pension scheme from agreeing that the person concerned should be treated as a man or as a woman, as the case may be. Similarly, the authorities, if they think fit, can agree with the individual that he shall be treated as a woman for national insurance purposes, as in this case.
On the other hand, Ormord J said,
sex is clearly an essential determinant in the relationship called marriage because it is and always has been recognised as the union of man and woman.
There are two propositions here. The first is that marriage is the union of man and woman. This is so. The second is that sex is an essential determinant in that relationship. This is true, however, only if "sex" refers simply to a person's identity as a man or a woman. Ormrod J, however, uses it to mean biological sex. Here again, in my view, the judgment treats a person’s (biological) sex as equivalent to the person’s status as a man or a woman, without any reasons having yet been advanced for disregarding psychological and social factors.
To this point in the reasoning, then, “true sex”, “sex”, and “biological sexual constitution” are treated by Ormrod J as equivalent to each other; and each is treated as the sole criterion for being a man or a woman. The key issue was whether matters other than biology should be taken into account in determining if a person is a man or a woman. Ormrod J says no. But he does so not by providing reasons, but by defining the issues in terms that exclude matters other than biology. The issue has been side-stepped.[34]
The judgment does at last address the issue, however, in a passage on p 106. The passage begins:
Having regard to the essentially hetero-sexual character of the relationship which is called marriage, the criteria must, in my judgment be biological…
Pausing there, it is not clear whether the phrase “hetero-sexual character” means more than the requirement that one party must be a man and the other a woman. If it includes a reference to capacity or inclination for heterosexual sexual activities, it begs the question. The passage continues with this key sentence:
…the criteria must, in my judgment, be biological, for even the most extreme degree of transsexualism in a male or the most severe hormonal imbalance which can exist in a person with male chromosomes, male gonads and male genitalia cannot reproduce a person who is naturally capable of performing the essential role of a woman in marriage.

The last few words are critical to Ormrod J’s conclusion. They constitute the only reason yet given for excluding non-biological matters.[35] However the words are problematical. Firstly, in this as in many other contexts, the word “natural” is open to many interpretations. Is a man who can achieve an erection only with Viagra “naturally” capable of performing sexual acts? Is a person with a constructed vagina “naturally” capable of intercourse?[36] Is it relevant whether the person experiences pleasure, or an orgasm? There is no clear answer to these and other such questions. Further, a law that required these matters to be put under the microscope to determine the validity of a marriage would neither be sensible nor respectful of people's dignity.
Secondly, what is “the essential role of a woman in marriage”? Does it require a capacity for sexual activities? If so, precisely which activities? Is a woman who is unable to have genital intercourse because of illness or disability unable to perform her “essential role”? Further, why should it be assumed that the “essential role of a woman” in marriage is concerned merely with matters of sex and biological sexual constitution? As Gordon Samuels succinctly wrote:-[37]
There is no reason to suppose that she could not provide the companionship and support which one spouse ordinarily renders to the other. She could not conceive and bear children. But it is not the law that marriage is not consummated unless children are procreated or that procreation of children is the principal end of marriage. Hence the female spouse’s ability or willingness to produce children is not a necessary incident of a valid marriage.
The case exhibits a remarkable focus on the mechanics of genital sexual activity. Perhaps the tone was set by the way the case was presented. Counsel for the petitioner argued in the following terms:-[38]
The petitioner’s case is that the respondent was and is a castrated male who has a passage in the form of an artificial vagina constructed for him but who has not and never has had ovaries or a uterus. It is not a case of a woman with a rudimentary vagina where the passage can be enlarged so as to permit full penetration as envisaged in SY v SY (orse. W) [1963] P 37, because the vagina of the respondent in the present case is not even in the natural position and it is arguable whether it resembles a natural vagina…
Given that marriage is a social and legal institution which includes people who are infertile or by reason of illness or otherwise are unable to engage in genital penetrative intercourse, it seems to me odd, rather than self-evident, to treat capacity for genital intercourse as "the essential" role of a woman (or a man) in marriage.[39] Academic commentary has been severely critical of this passage, described by Margaret Otlowski as "fraught with difficulty".[40] Professor Henry Finlay, for example, wrote that the decision “results in a narrowly restricted view which limits women to the role of physical objects and ignores other aspects of female personality”.[41]
No doubt aware of these criticisms, Mr Burmester sought to distance himself from these statements. The difficulty with this, however, is that as I have attempted to demonstrate, these statements provide the only basis yet advanced in the judgment for the central proposition in Corbett, that a person's biological sexual constitution is the sole criterion for determining whether the person is a man or a woman.
Ormrod J then discussed the situation he referred to as “inter-sex”, where the three biological indicators are not congruent, a matter which need not be considered at this point. He then dealt with some submissions of counsel in the following terms:
If the law were to recognise the “assignment” of the respondent to the female sex, the question would have to be answered is, what was the respondent’s sex immediately before the operation? If the answer is that it depends on “assignment” then if the decision at that time was female, the respondent would be a female with male sex organs and no female ones. If the “assignment” to the female sex is made after the operation, then the operation has changed the sex. From this it would follow that if a 50 year old male transsexual, married and the father of children, underwent the operation, he would then have to be regarded in law as a female and capable of “marrying” a man. The results would be nothing if not bizarre…”
Here, the argument is that to recognise the gender reassignment would produce “bizarre” results in a particular situation. Again, the judgment relies on skilful rhetoric. The position that the results would be bizarre depends on adopting exclusively the point of view of others. From the point of view of the individual involved, failing to recognise the reassignment would probably seem bizarre. Yet Ormrod J gives no reason why the law should be indifferent to the feelings of the person involved. As we will see, other approaches to the problem seek to have regard to the feelings and perceptions of the individual concerned as well as those of other people.
Further, Ormrod J appears to assume that his reaction is universal. However his perception appears to derive from his view that having male or female organs is determinative, and it is clear that some people, for example Mathews J, do not react in the same way.[42] The evidence of all the relevant lay and medical witnesses in the present case suggests that they would not share Ormrod J's reaction. I will consider the issues arising from Ormrod J's hypothetical example later in the judgment.
The judgment continues:-
I have dealt, by implication, with the submission that because the respondent is treated by society for many purposes as a woman, it is illogical to refuse to treat her as a woman for the purposes of marriage. The illogicality would only arise if marriage were substantially similar in character to national insurance and other social situations (sic), but the differences are obviously fundamental. These submissions, in effect, confuse sex with gender. Marriage is a relationship which depends on sex and not on gender.
Ormrod J is clearly correct is saying, in effect, that even if the respondent were a woman for some legal purposes, he might nevertheless be a man for the purpose of the law of marriage. It is obvious that a term can mean different things in different contexts, and this may apply to the words “man” and “woman”. (Whether it is desirable for such words to have different meanings in different legal contexts is another matter, to which I will return.)
However Ormrod J appears to be advancing a more precise point, that biological sex is necessarily the sole test in those areas of law in which whether a person is a man or woman is an essential determinant, as distinct from those areas in which it is merely relevant. It is not clear, however, why biological sex should be the sole determinant in all those parts of the law forming the first area. It may be, for example, that the law should have one definition of whether a person is a woman for the purpose of the criminal law of sexual offences and another for the purpose of marriage. Yet being a woman might be an essential determinant of the law in each case. As it happens, the Attorney-General seeks to make precisely this argument in the present case.
Thus, while the definition can in theory vary from one context to another, there is no evident reason to assume that sex should be the sole criterion in areas where being a man or a woman is an essential determinant. It would be necessary to examine the specific legal context before arriving at a definition. It is accurate to say that Ormrod J determined that sex, rather than gender, was the test for being a man or a woman for the purpose of the law of marriage. But I see no basis for saying that the respondent's submission, which Ormrod J rejected, confused sex with gender.
In the end, therefore, in my view Corbett does not provide persuasive reasons for accepting that the question whether a person is a man or a woman for the purpose of marriage involves only the person’s “biological sexual constitution”. Nor does it provide any persuasive reasons for holding that for the purpose of determining the validity of a marriage the court should assume that if a person is a male (or female) at birth, the person must be a male (or female) at the date of the marriage.[43]

An underlying assumption in Corbett

It is surprising that on a close analysis the judgment in Corbett has so little in the way of substantive argument for its conclusion,[44] and yet on the other hand the judge seemed so sure of the necessity of the result. To some extent, perhaps, practical matters may have influenced the decision. Making the sex of a transsexual depend on the basis of congruent "biological" features at birth might have been seen as giving the law certainty and avoiding legal difficulties, and avoiding situations that Ormrod J thought bizarre.
It is possible, however, that Corbett and cases that follow it depend to some extent on what I can only call, adopting Kennedy's term,[45] an "essentialist" view of sexual identity. Although no argument was addressed to me in such terms, in my view this possibility may help to explain some aspects of the way the law has developed.
By the "essentialist" view of sexual identity I refer to the view or assumption that individuals have some basic essential quality that makes them male or female. If such a view does underlie Corbett, in the case of transsexuals this view would be that congruent gonads, genitals and chromosomes at birth reveal the existence of this basic quality.
I do not think that the evidence supports such an assumption. In the majority of newborns, there is congruence between all relevant matters, and the baby is unproblematically male or female. It does not follow that there is some further entity beyond or underlying these matters that is the person's underlying sex. In a minority of people, various incongruities arise: sometimes within the chromosomes, gonads or genitals, sometimes among them; sometimes between the self-image and some or more of these factors. Where there are incongruities, by definition the person has some characteristics normally associated with each sex.
The situation presents a question to the individual, and to various social systems, as well as to the law, namely how that person's identity should be defined and managed. In other words, the task of the law is not to search for some mysterious entity, the person's "true sex", but to give an answer to a practical human problem; as one of the witnesses in Corbett put it, "to determine the sex in which it is best for the individual to live".[46]
There are a number of reasons for thinking that the essentialist view underlies Corbett. Firstly, it fits neatly with the idea that a person's sex is determined at birth. Apart from the essentialist view, this seems a remarkably unattractive proposition.[47] It would mean, in the present case, that in deciding whether Kevin was a man at the time of his marriage, the law would completely disregard everything about him - all the evidence set out above - and consider only his genitals, chromosomes and gonads at the moment of birth. Secondly, it could explain the lack of reasons of principle or policy. Such reasons would be necessary if the law was to explain a decision about how to manage an individual's sexual identity, but would be inappropriate if the task were seen as the identification of an entity, the "true sex". Thirdly, the essentialist view is consistent with Ormrod J's use of such language as "true sex", and "biological sexual constitution",[48] and with the absolute nature of the conclusions, which are presented as the only possible outcome.[49]

Other "starting points"

A theme of Mr Burmester's submissions was (to use my own words) that Corbett represents a starting point and that the court should depart from it only cautiously, and that such a departure would be in danger of constituting impermissible law reform. I have not been able to accept this. As I have said, I do not find the reasoning persuasive, and indeed the decision may depend on what I have suggested is a mistaken assumption, that in some ultimate sense each person has a "true sex" which it is the law's task to identify.
To illustrate and clarify this, it is convenient to consider some examples of approaches to the problem that do not exhibit the essentialist fallacy. Firstly, I take a decision of a Swiss cantonal court, In Re Leber, decided a quarter of a century before Corbett. It illustrates that there is nothing self-evident about the approach taken in Corbett, and that a very different starting point might have been taken.[50] The applicant was a male to female post operative transsexual. Her application was, in substance, to change her sex as recorded on the birth register from male to female. The Court apparently had no power to deal with issues of marriage,[51] but the general approach of the case is instructive. Some of the language is outdated, although on some matters it is remarkably modern.[52]
In a decision of conspicuous humanity, the Court granted the application. It wrote:-
This inclines us to attribute to the psychic element, in the determination of sex, an importance at least equal to that of the physical element… It is not only the body which determines the sex of the individual, it is also the mind. When there is a discord between body and mind, one must see which of these two elements predominates. Leber, being neither a perfect man or a perfect woman, must be placed in the category of human beings which he most resembles.. In the unanimous opinion of doctors and experts he is nearest, as a whole, to a woman…
The sentence I have underlined stands in stark contrast to the essentialist approach that seems to underlie Corbett. The Court went on to consider the consequences of the decision both for the applicant and society:-[53]
In granting him the civil status of a woman we are satisfying the most profound desire of his being while consolidating his psychic and moral equilibrium; at the same time we are facilitating his social adaptation by permitting him to lead a more normal type of life than heretofore. The personal interest which urges him to ask for a change of civic status is thus not opposed to the interests of public order and morality - quite the contrary.
Considering the question whether the Court was correcting an original error in the birth certificate or "adapting a correct original to a change of status", the Court said:
An evolution has taken place in him, in part natural and in part artificially provoked, on account of which his essential feminine character can no longer be seriously questioned. In Law, if not in Medicine, it is really a change of sex which has taken place in him…
This case is of particular interest because it shows that a different view can be taken from that in Corbett without reference to the more recent medical evidence. The same is true of the next case, an American case decided shortly before Corbett, in which a post-operative transsexual sought to change his name.[54] After referring to the facts, Judge Pecora said:-[55]
The Court is cognisant of the fact that the transsexual, anatomically, does not present the same problem as that of the pseudo-hermaphrodite. His social sex is determined by his anatomical sex. But again, by definition, his psychological sex, as distinguished from his anatomical sex, is that of the opposite sex. Absent surgical intervention, there is no question that his social sex must conform with his anatomical sex, his mental attitude notwithstanding. But once surgical intervention has taken place, whereby his anatomical sex is made to conform with his psychological sex, is not his position identical to that of the pseudo-hermaphrodite who has been surgically repaired? Should not society afford some measure of recognition to the altered situation and afford this individual the same relief as it does the pseudo-hermaphrodite?
It has been suggested that there is some middle ground between the sexes, a “no-man’s land” for those individuals who are neither truly “male” nor truly “female.” Yet the standard is much too fixed for such far-out theories. Rather the application of a simple formula could and should be the test of gender, and the formula is as follows: Where there is disharmony between the psychological sex and the anatomical sex, the social sex or gender of the individual will be determined by the anatomical sex. Where, however, with or without medical intervention, the psychological sex and the anatomical sex are harmonised, then the social sex or gender of the individual should be made to conform to the harmonised status of the individual and, if such conformity requires changes of a statistical nature, then such changes should be made. Of course, such changes should be made only in those cases where physiological orientation is complete.
After referring to another case,[56] the judge continued:-
It has further been stated… that ‘male to female transsexuals are still chromosomally males while ostensibly females.’ Nevertheless, should the question of a person’s identity be limited by the results of mere histological section or biochemical analysis, with a complete disregard for the human brain, the organ responsible for most functions and reactions, many so exquisite in nature, including sex orientation? I think not.
A third example is that in two recent decisions, discussed below, Australian courts have drawn the line at post-operative transsexuals, declining to treat pre-operative transsexuals as members of the sex with which they identify.[57] The judges give reasons for drawing the line in the same way as in the Swiss and the American cases, for example because to include pre-operative transsexuals would "create enormous difficulties of proof".
Whatever view one takes about the merits of the arguments, it is clear that in these cases the courts are responding to what I think is the real challenge. It is the difficult task of identifying legal criteria for assigning people to one sex or the other, having regard to justice and the interests of the individual and society, rather than seeking to discover some entity that is the person's "true sex", a task which seems to have preoccupied Ormrod J .

Conclusions

I have concluded that the reasoning in Corbett is not persuasive. That is, leaving aside any questions about the desirability of the result, or later medical legal or social developments, I have not found in Corbett any reason of substance to justify the conclusion in that case. If, as I suspect, the decision depends in part on an assumption about the existence of an entity that is a person's "true sex", with respect I think the decision takes an approach that is not helpful. Other decisions, including some before Corbett, illustrate what in my view is a more constructive approach, and one that is based on a correct appreciation of the task the law must undertake.
For these reasons, I do not consider that Corbett represents a position that should be departed from only if there is some overwhelming reason to do so. Instead, I will attempt to consider the matter as one of principle, to be decided in the light of the evidence and the guidance of relevant authorities, particularly decisions of Australian courts.

PART FOUR: ISSUES OF STATUTORY CONSTRUCTION

The Attorney-General argues that the meaning of the word “man” in the Marriage Act should be taken to be the meaning that would have been given to the word when the legislation was passed in 1961,[58] and that this meaning is the one stated in Corbett.

Past or contemporary meaning?

The first step in the argument is that the word “man” should be given the meaning it had when the legislation was passed, in 1961, rather than its contemporary meaning. Mr Burmester cited a number of authorities in support of his submission, in particular NSW Associated Blue-Metal Quarries Ltd v FCT (1956)[59] and Corporate Affairs Commission of NSW v Yuill (1991).[60] Ms Wallbank submitted that the word should bear its contemporary meaning, and that the meaning of the word is a question of fact to be determined in accordance with common sense and experience of the world.[61]

Because the words "man and "woman" have their ordinary contemporary meaning, there is no formulaic solution to determining the sex of an individual for the purpose of the law of marriage.[204] That is, it cannot be said as a matter of law that the question in a particular case will be determined by applying a single criterion, or limited list of criteria. Thus it is wrong to say that a person's sex depends on any single factor, such as chromosomes or genital sex; or some limited range of factors, such as the state of the person's gonads, chromosomes or genitals (whether at birth or at some other time). Similarly, it would be wrong in law to say that the question can be resolved by reference solely to the person's psychological state, or by identifying the person's "brain sex".
To determine a person's sex for the purpose of the law of marriage, all relevant matters need to be considered. I do not seek to state a complete list, or suggest that any factors necessarily have more importance than others. However the relevant matters include, in my opinion, the person's 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. It is clear from the Australian authorities that post-operative transsexuals will normally be members of their reassigned sex.
I state my conclusions in this case as follows:-
For the purpose of ascertaining the validity of a marriage under Australian law, the question whether a person is a man or a woman is to be determined as of the date of the marriage.
There is no rule or presumption that the question whether a person is a man or a woman for the purpose of marriage law is to be determined by reference to circumstances at the time of birth. Anything to the contrary in Corbett does not represent Australian law.

10.In the context of the rule that the parties to a valid marriage must be a man and a woman, the word “man” has its ordinary current meaning according to Australian usage.
11.There may be circumstances in which a person who at birth had female gonads, chromosomes and genitals, may nevertheless be a man at the date of his marriage. Anything to the contrary in Corbett does not represent Australian law.
12.In the present case, the husband at birth had female chromosomes, gonads and genitals, but was a man for the purpose of the law of marriage at the time of his marriage, having regard to all the circumstances, and in particular the following:-
(g)He had always perceived himself to be a male;
(h)He was perceived by those who knew him to have had male characteristics since he was a young child;
(i)Prior to the marriage he went through a full process of transsexual re-assignment, involving hormone treatment and irreversible surgery, conducted by appropriately qualified medical practitioners;
(j)At the time of the marriage, in appearance, characteristics and behaviour he was perceived as a man, and accepted as a man, by his family, friends and work colleagues;
(k)He was accepted as a man for a variety of social and legal purposes, including name, and admission to an artificial insemination program, and in relation to such events occurring after the marriage, there was evidence that his characteristics at the relevant times were no different from his characteristics at the time of the marriage;
(l)His marriage as a man was accepted, in full knowledge of his circumstances, by his family, friends and work colleagues.

13.For these reasons, the application succeeds, and there will be a declaration of the validity of the applicants’ marriage.

I certify that the preceding 330 paragraphs are a true copy of the reason for judgment herein of the Honourable Justice Chisholm

Associate

[1]Paragraph 3 of the Applicant's submissions.

[2]Hyde v Hyde and Woodmansee (1866) LR 1 P&D 130 at 133; cf Lindo v Belisario [1795] 1 Hag Con 216 at 213.

[3]Section 46(1).

[4]Khan v Khan (1962) 3 FLR 496 at 497; In the Marriage of C and D (falsely called C) (1979) 35 FLR 340 at 345; In the Marriage of S (1980) 42 FLR 94 at 192; Calverley v Green (1984) 155 CLR 242 at 259-60; R v L (1991) 174 CLR 379 at 392, Commonwealth of Australia v Human Rights & Equal Opportunity Commission and Muller [1998] 138 FCA (27 February 1998) (1998) EOC ¶92-931 and Brown v Commissioner for Superannuation (1995) 38 ALD 444.

[5]Section 4, “matrimonial cause”, paragraph (b).

[6]Constitution, s 51(xxi).

[7]Gordon Samuels, “Transsexualism” (1983) Aust J Forensic Sciences 57-64, 57.

[8]These distinctions are drawn in many of the cases, including Corbett v Corbett (otherwise Ashley) [1971] P. 83. For a slightly more detailed account, see Secretary, Department of Social Security v SRA (1993) 118 ALR 467, at para 48, per Lockhart J.

[9]I do not in this paragraph mean to exclude the idea that these matters might not be bipolar, but a continuum with individuals placed at different points on it: see Samuels, "Transsexualism", above, 57.

[10]I do not use them in the way indicated by Professor Diamond, namely that men and woman are social terms and male and female biological ones: Diamond, “Sexuality: Orientation and Identity” in Raymond Corsini, ed, Encyclopaedia of Psychology (2^nd ed, 1994) Vol 3, 398ff.

[11]See the discussion in Bellinger (unreported, Court of Appeal, [2001] EWCA Civ 1140, 17/7/01) of whether there was any significance in the legislative use of “male” and “female” rather than “man” or “woman”: paragraphs 16-23.

[12]Vivienne Muller, “`Trapped in the body’ - Transsexualism, the law, sexual identity” (1994) 3 Australian Feminist Law Journal 103, 104. Compare the discussion of male-to-female transsexuals in Myanmar, known as acaults, who have a special cultural and religious status in the community, but who are said to have elected to undergo sex reassignment surgery and hormone treatment when it became available: Coleman, Colgan & Gooren, 1992, quoted in Loius Gooren and Cornelis Doorn, "Who determines manhood or womanhood? The biomedical and legal definitions of man and woman in relation to transsexualism" in Frank Fleerackers et al, ed, Law, Life and the Images of Man: modes of thought in modern legal theory (Berlin, 1996) 267- 282, at 274 ("Gooren and Doorn").

[13]See eg Janice Raymond, The Transsexual Empire (Boston, Beacon Press, 1979), quoted in Muller at p 110.

[14]Isis Dunderdale, “The human rights of transsexuals” (1992) Australian Law Journal 26, quoted in Muller, above, at 116. For somewhat similar approaches see, eg, the work of Sharpe and Mountbatten, in, eg, John Mountbatten, “Priscilla’s Revenge: or the strange case of transsexual law reform in Victoria” (1996) 20 Melbourne University Law Review 871 (quoting Foucault’s question, “Do we truly need a true sex?”); Andrew Sharpe, "Judicial Uses of transsexuality: a site for political contestation” (1996) 21 Alternate Law Journal 153.

[15]Douglas K Smith, "Transsexualism, Sex Reassignment Surgery and the Law" (1971) 56 Cornell LR 963, at 694, 695 (the quotation incorporates part of the author's note 9 but otherwise omits citations).

[16]I note in passing that whatever might be thought about social reorganisation, the medical evidence indicates that intermediate positions have little appeal for transsexuals. Referring to such intermediate or fluid solutions, Gooren wrote: “Those who treat transsexuals know this is not the case. The transsexual's real problem is the physical body that is experienced as alien, not as a part of the self, an unimaginable problem to the non-transsexual. To put it technically: transsexualism is not sex role dysphoria, it is physical/body sex dysphoria”: Gooren and Doorn, above, 274. Professor Diamond similarly writes that transsexuals “can be seen as conservative members of society since they endeavour to maintain the traditional man-woman gender roles…”: his affidavit, p 7. See also Mathews J’s comment that she saw no place in law for a “third sex”: R v Harris and McGuiness (1988) 17 NSWLR 158, 194.

[17]Like Professor Dewar, I do not think that homosexuality is "the real issue lurking in Corbett": see John Dewar, "Transsexualism and marriage" (1985) 15 Kingston Law Rev 58-76, note 6, citing I. McColl Kennedy, "Transsexualism and single sex marriage (1973) Anglo-American Law Review 112, at 130, 132-136.

[18]This term can be obscure when used of a transsexual, since it assumes that the reader knows whether the writer is treating the person under consideration as a man or a woman. I mean that Kevin, seeing himself as a man, is sexually attracted to women, or to adopt Professor Diamond’s terms, is gynecophilic rather than androphilic: Diamond, “Sexual Identity and Sexual Orientation in Children with Traumatised or Ambiguous Genitalia” (1997) 34 (2) Journal of Sex Research 199, 207.

[19]I accept the submission by Mr Burmester QC that this is the correct inference to draw from the evidence, including the fact that the applicants elected not to lead evidence on this topic. I do not think this conclusion was seriously resisted.

[20]See the affidavit by Dr Haertsch.

[21]See Births, Deaths and Marriages Registration Act 1995 (NSW) Part 5A.

[22]Kevin’s skills in this regard also impressed a neighbour who was a plumber. He spoke of Kevin “single-handedly tackling construction work which most men would avoid”.

[23]Applicants’ submission, citing Rochfort v Trade Practices Commission (1982) 153 CLR 134 per Mason J at 147; Cook v Cook (1986) 162 CLR 376 at 390.

[24]See eg the quotations in Harris at 190, per Mathews J.

[25]Harris, per Mathews J, 189.

[26]This is the view of Thorpe LJ in Bellinger, above.

[27]For a more elaborate but consistent analysis, see Secretary, Department of Social Security v SRA (1993) 118 ALR 467. If the reasoning of the Supreme Court of Victoria in R v Cogley [1989] 799, 803-806, is read as meaning that that it is a question of fact what criteria are to be taken into account in determining sex or gender, then I respectfully disagree, and prefer the analysis in Secretary, Department of Social Security v SRA (1993) 118 ALR 467.

[28]Corbett, p 104.

[29]Corbett, p 89.

[30]As recognised by Ormrod J in Corbett, at 106.

[31]It is not necessary to discuss whether the evidence in Corbett justified this conclusion.

[32]This is consistent with the approach of members of the Court of Appeal in Bellinger (unreported, Court of Appeal, [2001] EWCA Civ 1140, 17/7/01).

[33]April Ashley had been accepted as a woman for the purpose of National Insurance: see Corbett at p 85.

[34]See also the comment of Mathews J, that the conclusion followed not so much from the medial evidence as from Ormrod J’s finding that certain biological features should be determinant of a person’s sex: Harris, 191.

[35]The passage is correctly identified by Otlowski as "the very basis of the decision": Margaret Otlowski, "The Legal Status of a Sexually Reassigned Transsexual: R v. Harris and McGuiness and Beyond", (1990) 64 ALJ 67, 72.

[36]It becomes apparent from a later part of the judgment that opinions can differ on this matter: see Corbett at 107-108.

[37]Samuels, above, 58.

[38]Corbett, pages 86-87.

[39]It is possible that this focus was suggested because under English legislation at the time of Corbett, incapacity for sexual intercourse was legally relevant to the validity of a marriage, and was an alternative ground relied on in Corbett).

[40]Margaret Otlowski, "The Legal Status of a Sexually Reassigned Transsexual: R v. Harris and McGuiness and Beyond", (1990) 64 ALJ 67, 72.

[41]In “Transsexual Recognition in Australia” (1997) 10 (3) Venerology, 188-192, at 188.

[42]See eg Mathews J In Harris, at 191 (“I cannot share his Lordship’s view as to the `bizarre’ nature of the scenario he paints”).

[43]This analysis is consistent with Judge Marten’s comment that Ormrod J "simply refused to attach any legal relevance to reassignment surgery”: Cossey v United Kingdom [1990] 13 EHRR 622.

[44]As noted by various critics. Thus Professor Dewar, for example, wrote that the arguments for adopting purely biological criteria were "unconvincing and incoherent": John Dewar, "Transsexualism and marriage" (1985) 15 Kingston Law Rev 58-76, at 61.

[45]Kennedy, "Transsexualism and single sex marriage (1973) Anglo-American Law Review 112.

[46]Professor Dewhurst, Corbett at p 100.

[47]Thus Dewar points to the strangeness of Ormrod J's disregarding the person's (post-operative) genital sex at the time of marriage, yet regarding the baby's genitals at the time of birth as the most important factor: Dewar, above, at 61.

[48]See especially Corbett at 104.

[49]See, eg "…the biological sexual constitution cannot be changed…The respondent's operation therefore, cannot affect her true sex…"

[50]The most accessible account of this case is the summary in D K Smith, "Transsexualism, Sex Reassignment Surgery and the Law" (1971) 56 Cornell LR 963, at 971-2, quoted by Lockhart J in Secretary, Department of Social Security v SRA (1993) 118 ALR 467. The whole case is however reproduced in Eugene de Savitsch, Homosexuality, Transvestism and Change of Sex (1958, London, Heinemann), Appendix A (pp 96-107), from which the quoted extract is taken.

[51]See p 106.

[52]At p 99: "…there is an absolute contradiction between the anatomical sex and the cerebral sex, "a difference which it will perhaps be possible in the future to establish anatomically because we already know there are differences between male and female brains…"

[53]At 105.

[54]Re Anonymous 293 NYS 2d 834 (1968)(Civil Court of City of N.Y.).

[55]At 837, 838.

[56]Anonymous v Weiner (1966) 270 NYS 2d 319.

[57]R v Harris and McGuiness (1988) 17 NSWLR 158; Secretary, Department of Social Security v SRA (1993) 118 ALR 467.

[58]The Marriage Act 1961 came into force on 6 May 1961.

[59]NSW Associated Blue-Metal Quarries Ltd v FCT (1956) 94 CLR 509.

[60]Corporate Affairs Commission of NSW v Yuill (1991) 100 ALR 609.

[61]She relied on Brutus v Cozens (1973) AC 854 at 863; Seay v Eastwood (1976) 1 WLR 1117 at 1121 and Rochfort v Trade Practices Commission (1982) 134 CLR 134.

[62]Section 295(1).

[63]O’Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1.

[64]Baker v Campbell (1989) 153 CLR 52.

[65]Corporate Affairs Commission of NSW v Yuill (1991) 100 ALR 609, 611.

[66]See eg NSW Associated Blue-Metal Quarries Ltd v FCT (1956) 94 CLR 509, 514, per Kitto J: “in the end the conclusion must depend upon one’s own understanding of the sense in which words are currently used”.

[67]Chappell and Co Ltd v Assoc Radio Co of Australia Ltd [1925] VR 350, per Cussen J; quoted in Pearce and Geddes, Statutory Interpretation in Australia, 4^th ed, 1996, [4.6].

[68]Szelagowicz v Stocker (1994) 35 ALD 16.

[69]Lake Macquarie Shire Council v Aberdare County Council (1970) 123 CLR 327 (Whether a reference to the powers of a council to supply “gas” included a reference only to coal gas – the only relevant known gas at the time of the statute – or also to the supply of liquefied petroleum gas, a later development); Imperial Chemical Industries of Australia and New Zealand (1972) 46 ALJR 35, per Walsh J (mining).

[70]Wilson v Commissioner of Stamp Duties (1988) 13 NSWLR 77.

[71]In Lindo v Belisario [1795] 1 Hag Con 216 at 213, Sir William Charles gave a defnition of marriage that referred to “two persons of different sexes”.

[72]Gooren and Doorn, 269.

[73]Gooren and Doorn, 269.

[74]The recent decision in Bellinger may be seen as a partial exception to this, in that one of the arguments of the majority was that recent legislation could be taken to have incorporated the Corbett analysis. Bellinger is discussed in some detail later. Its essential basis was that the law had been settled by Corbett, and that it was now a matter for the legislature whether to change it.

[75]Black CJ, at paragraph 15; Lockhart, paragraph 33.

[76]Gooren and Doorn, above, 281.

[77]R v Harris and McGuiness (1988) 17 NSWLR 158; R v Cogley (1989) VR 799.

[78]Secretary, Department of Social Security v SRA (1993) 118 ALR 467; Secretary, Department of Social Security v HH (1991) 13 AAR 314; SRDD and Department of Social Security [1999] AATA 626.

[79]E v Minister for Health and Family Services and Commonwealth of Australia (HREOC 97/219, 8 October 1998 per Commissioner Elizabeth Evatt).

[80]R v. Harris and McGuinness (1988) 17 NSWLR 158 (NSW Court of Criminal Appeal).

[81]Secretary, Department of Social Security v SRA (1993) 118 ALR 467 (Full Court of Federal Court of Australia).

[82]s. 81A of the Crimes Act 1900 (NSW).

[83]Carruthers J dissented, and followed Corbett and Tan.

[84]Sir Ronald Wilson, above, at 80.

[85]Harris, at 193.

[86]Harris, at 189.

[87]Secretary of Department of Social Security v SRA (1993) 118 ALR 467.

[88]As has since been held: DSS v “HH” (1991) 23 ALD 58 (Administrative Appeals Tribunal).

[89]Black CJ cited Robin Mackenzie, "Transsexuals' Legal Sexual Status and Same Sex Marriage in New Zealand: M v M", (1992) 7 Otago Law Review 556 esp at 576-577; The Hon Gordon Samuels, "Transsexualism", (1983) 16 Australian Journal of Forensic Sciences 57, at 63.

[90]Andrew Sharpe, “The Transsexual Marriage: Law’s Contradictory Desires” (1997) 7 Australasian Gay and Lesbian Law J 1, at 11.

[91]Henry Finlay, “Transsexual Recognition in Australia” (1997) 10 (3) Venerology, 188-192, at 192.

[92]In the Marriage of C and D (falsely called C) (1979) 5 Fam LR 636.

[93]As pointed out in Harris, the decision has been strongly criticised, eg by Rebecca Bailey, “Recent Cases” (1979) 53 ALJ 659, 660.

[94]Section 32A.

[95]Section 32B.

[96]Section 32C.

[97]Section 32D.

[98]Sections 32G, 32H.

[99]Section 32I.

[100]Sex Reassignment Act 1988, s 8(1).

[101]Births Death and Marriages Registration Amendment Act 1997 (NT).

[102]Transgender (Anti-Discrimination and Other Acts Amendment) Act 1996.

[103]Section 23WA.

[104]Department of Foreign Affairs and Trade, Canberra, Manual of Information and Instruction: Vol 19, Manual of Australian Passport Issue (1996) paragraphs 722-728.

[105]The purpose appears to have been to ensure that persons designated to be the same sex are not married: see Andrew Sharpe, “The Transsexual Marriage: Law’s Contradictory Desires” (1997) 7 Australasian Gay and Lesbian Law J 1, at 12, quoting the South Australian Attorney-General in the parliamentary debates.

[106]Bellinger, above, paragraph 158.

[107]Apart from publications cited elsewhere, see also the typically succinct and acute comment by Alec Samuels, "Once a Man, Always a Man; Once a Woman Always a Woman - Sex Change and the Law" (1984) 24 Med, Sci and Law 163-166; and also, "Note, 'Transsexuals in Limbo'" (1971) 31 Maryland Law Rev 236, especially at 244-247 ("refusal to reclassify the sex of a post-operative transsexual seems inconsistent with the principles of a society which expresses concern for the privacy and dignity of its citizens"); H R Hahlo, "Sex Change Operations and the Law" (1970) South African Law J 239-245; David Green "Transsexualism and Marriage (1970) 120 New Law Journal 210.

[108]David Green, "Transsexualism and Marriage" (1970) 120 New Law Journal 210.

[109]M L Lupton "The Validity of Post-operative Transsexual Marriage" (1976) 93 South African Law J 385398 (criticising W v W 1976 (2) SA 308 (W)).

[110]Justice M. Kirby, "Medical technology and new frontiers of family law" (1987) 1 AJFL 267, at 200.

[111]See eg John Dewar, "Transsexualism and marriage" (1985) 15 Kingston Law Rev 58-76 (Professor Dewar is currently Chairman of the Family Law Council); Henry Finlay's writings on the subject; Margaret Otlowski, "The Legal Status of a Sexually Reassigned Transsexual: R v. Harris and McGuiness and Beyond", (1990) 64 ALJ 67.

[112]See eg Margaret Otlowski, "The Legal Status of a Sexually Reassigned Transsexual: R v. Harris and McGuiness and Beyond", (1990) 64 ALJ 67, 72-3.

[113]Secretary of Department of Social Security v SRA (1993) 118 ALR 467.

[114]R v Harris and McGuiness (1988) 17 NSWLR 158.

[115]I consider later medical evidence that is inconsistent with this analysis.

[116]Bellinger, above, paragraph 57.

[117]See also British Home Office, Report of the Interdepartmental Working Group on Transsexual People, April 2000.

[118]S-T v J [1997] 3 WLR 1287; W v W(physical inter-sex) [2001] Fam. 111.

[119]Bellinger (unreported, Court of Appeal, [2001] EWCA Civ 1140, 17/7/01).

[120]See also Re P & G (Transsexuals) [1996] 2 FLR 90 (UK). The Industrial Tribunal took a similar approach, without citing Corbett, in White v British Sugar Corp Ltd (1977) 1 IRLR 121.

[121]R v Tan [1983] QB 1053.

[122]R v Tan [1983] QB 1053, 1064.

[123]Bellinger, above, paragraph 118, per Thorpe LJ.

[124]Bellinger, above, paragraph 16. Compare the contrary argument by Thorpe LJ at paragraphs 140-143.

[125]Paragraphs 105-107.

[126]See S-T (formerly J) (1998) Fam 103.

[127]Paragraph 61.

[128]Paragraphs 43, 97.

[129]The majority had earlier made the point that it is impossible to identify the gender of a child at birth: para 23.

[130]The majority did not refer to the Australian case law or to the recent Kansas decision.

[131]Re Ladrach 32 Ohio Misc 2d 6, 513 NE 2d 828 (1987) (Ohio Probate Court); Littleton v. Prange, 9 S.W.3d 223 (Tex. Civ. App. 1999), cert. denied 148 L. Ed. 2d 119, 121 S. Ct. 174 (2000); Frances B v Mark B (1974) 325 NYS 2d, 499 (a female to male transsexual). Of these, I found the reasoning in Littleton the most impressive. Anonymous v Anonymous 325 NYS 2d 499 (1971) (New York Supreme Court) is not in point: it involved a pre-operative transsexual, whose surgery occurred only after the marriage.

[132]In the Estate of Gardiner (Unreported, No 85,030, 11 May 2001, Court of Appeals of the State of Kansas; Gernon, Knudson and Beier JJ); MT v JT 140 NJ Super 77, 355 A 2d 204, 205 (1976) (New Jersey).

[133]Anonymous v Weiner (1966) 270 NYS 2d 319; Re Anonymous 293 NYS 2d 834 (1968).

[134]Richards v US Tennis Assoc 400 NYS 2d 267 (1977).

[135]In the Estate of Gardiner (Unreported, No 85,030, 11 May 2001, Court of Appeals of the State of Kansas; Gernon, Knudson and Beier JJ).

[136]Littleton v. Prange, 9 S.W.3d 223 (Tex. Civ. App. 1999), cert. denied 148 L. Ed. 2d 119, 121 S. Ct. 174 (2000). This was the latest United States decision available to the Court of Appeal in Bellinger.

[137]Instead, it “looked with favour on the reasoning and the language of M.T. v. J.T., 140 N.J. Super. 77, 355 A.2d 204, cert. denied 71 N.J. 345 (1976)”.

[138]W v W (1976) (2) SALR 308 (South Africa).

[139]M v M (A) (1984) 42 RFL (2d) 267.

[140]M v M [1991] NZFLR 337 (Family Court, Otahuhu, Aubin J); Attorney-General v Otahuhu Family Court (1994) 1 NZLR 603 (High Court, Ellis J). The earlier decision in Re T (1975) 2 NZLR 449 was decided on the basis of the court's lack of jurisdiction to make a "declaration in rem", although McMullin J did refer to Corbett.

[141]Report of the UK Interdepartmental Working Group on Transsexual People, Home Office, April 2000.

[142]UK Report, paragraph 1.18.

[143]UK Report, page 62.

[144]UK Report, page 65.

[145]Quoted by Thorpe LJ in Bellinger, at paragraph 158.

[146]This paragraph is based on the summary contained in Annexure 4 to the UK Report.

[147]Debbie Ong, “The Test for Marriage in Singapore”, (1998) 12 International J Law Policy and the Family, 167-8.

[148]Van Oosterwijck v Belgium [1981] 3 EHRR 557; Rees v United Kingdom [1986] 9 EHRR 56; Cossey v United Kingdom [1990] 13 EHRR 622; X, Y, Z v United Kingdom (1997) 24 EHRR 143; Sheffield & Horsham v United Kingdom [1998] 27 EHRR 163. The decision B. v France (1992) 16 EHRR 1 involved similar issues, but the Court did not rule on Article 12, and the case does not advance the argument in ways relevant to the present case.

[149]Van Oosterwijck v Belgium [1981] 3 EHRR 557, 586.

[150]Rees v United Kingdom [1986] 9 EHRR 56.

[151]Cossey v United Kingdom [1990] 13 EHRR 622.

[152]Martens J's note is: “See, amongst others: D.A.R. Green, New Law Journal 1970, p 210; B.v.D. van Niekerk, South African Law Journal, Vol. 87 (1970), p. 239; D.K. Smith, Cornell Law Review, Vol. 56 (1970/1971), pp. 1005 et seq.; I. McColl Kennedy, Anglo-American Law Review, Vol. 2 (1973), pp. 114 et seq.; M.L. Lupton, South African Law Journal, Vol. 93 (1976), p. 385 (with reference to a South African decision following Corbett); R.J. Bailey, Australian Law Journal, Vol. 53 (1979), pp. 659 et seq. (with reference to an Australian decision following Corbett).”

[153]X, Y, Z v United Kingdom (1997) 24 EHRR 143.

[154]Paragraph 45.

[155]Page 166.

[156]I have also read the affidavit by Mr Briffa, who is co-ordinator of the Intersex Society of Australia and a person who was born with atypical genitalia. However, while I intend no disrespect, I do not think his affidavit adds anything that is not otherwise covered by the expert evidence.

[157]H A Finlay and W A W Walters, Medico-Legal Implications of Sex Reassignment Procedures, Monash University, Melbourne, 1986; H A Finlay and W A W Walters, Sex Change: Medical and Legal Aspects of Sex Reassignment, 1988.

[158]Estate of Gardiner, above.

[159]It is essentially similar to the account in Gooren’s 1993 paper, 16-17, and Gooren and Doorn, at 269ff.

[160]Others include Congenital Adrenal Hyperplasia, Cloacal Exstrophy.

[161]Gooren and Doorn, 279.

[162]The microscopic examination of the gonads was the basis of Klebs' classification of hermaphroditism. Klebs and his contemporaries assumed that the gonadal tissue would determine the person's "true sexual nature": Gooren and Doorn, 269.

[163]Gooren and Doorn, 269.

[164]Diamond, “Sexual Identity and Sexual Orientation in Children with Traumatised or Ambiguous Genitalia” (1997) 34 (2) Journal of Sex Research 199, 208.

[165]See eg the discussion in Diamond, above, 209-210.

[166]See also the case mentioned by Dr Walker at numbered paragraph 5: an individual, aged 50, who was brought up as a girl, had a uterus and apparently a normal vagina, who married and reportedly enjoyed a “normal” sex life, and never doubted that she was a woman. She had a streak gonad on one side and a dysgenic gonad on the other, and had the normal male XY chromosomes.

[167]See the evidence of Dr Jan Walker, at numbered paragraph 3.

[168]Page 4. Similarly, Professor Diamond writes in his affidavit that chromosomal sex is in the majority of cases a “reliable indicator” of the person’s gender, but that often this does not hold true: paragraph 8.

[169]This account is based on the affidavit by Professor Diamond, which includes extensive citations and attaches a number of papers. David Reimer is not the only such case, though it is the best known. See eg the case reported by Khupisco of a mutilated boy in South Africa, discussed by Professor Diamond, “Sexual Identity and Sexual Orientation in Children with Traumatised or Ambiguous Genitalia” (1997) 34 (2) Journal of Sex Research 199, 204.

[170]Dr Walker’s affidavit, page 5.

[171]Quoted in Diamond, “Sex Reassignment at Birth”, Arch Pediatr Adolesc Med Vol 151, March 1997, 299.

[172]There are many other cases that illustrate the point. See eg Diamond, “Sexual Identity and Sexual Orientation in Children with Traumatised or Ambiguous Genitalia” (1997) 34 (2) Journal of Sex Research 199, 200ff.

[173]The majority concluded only that there was “a possibility” that transsexualism was “a medical condition with a biological basis by reason of sexual differentiation of the brain after birth”. With respect, I think the evidence would have justified a stronger finding. The evidence before me certainly does so.

[174]Quoted by Thorpe LJ in Bellinger, at paragraph 116 (iii).

[175]Zhou and others, “A Sex Difference in the human brain and its relation to transsexuality” (1995) vol 378 Nature 68-70.

[176]The bed nucleus of the stria terminalis.

[177]The authors found no relation between BSTc size and sexual orientation.

[178]Kruijver, Zhou, Pool, Hofman, Gooren, and Swaab, "Male-to-Female Transsexuals Have Female Neuron Numbers in a Limbic Nucleus", 85 The Journal of Clinical Endocrinology & Metabolism 2034 (2000).

[179]Abstract, p 2034.

[180]273-4.

[181]Professor Gooren.

[182]See for example, the cases discussed in Diamond, “Sexual Identity and Sexual Orientation in Children with Traumatised or Ambiguous Genitalia” (1997) 34 (2) Journal of Sex Research 199, such as “Samantha” at 200-202. The case of “Bill” related by Professor Diamond at 202-203, might to a limited extent be seen as a counter-example. I suppose it is possible, too, that the literature might reflect the experiences of those who identify themselves and seek help from the medical profession, and that there may be others who do not come to notice and whose experiences might differ.

[183]Thus the majority in Bellinger relied more on the fact that the brain sex could not be readily perceived than doubts about whether it existed: this practical difficulty, they thought, made it inappropriate as a legal criterion: paragraph 55.

[184]Paragraph 159.

[185]Paragraph 160.

[186]Paragraph 99.

[187]Applicants' written submissions, paragraph 41.

[188]This is reflected in the Family Law Act 1975, s 43(a).

[189]Written submissions, paragraph 53.

[190]Anthony Dickey, "Sexual identity of transsexuals" (1989) 63 ALJ 485 at 486.

[191]For example, State Government Insurance Commission (SA) v Trigwell (1979) 142 CLR 617, 633-4 (Mason J).

[192]Paragraphs 99, 100.

[193]Paragraphs 102-4.

[194]Of which W v W(physical inter-sex) [2001] Fam. 111 is a good example.

[195]Paragraphs 152-3.

[196]Corbett; MT and JT, at 209, 211; W v W, at 314; Re Anonymous 293 NYS 2d 834 (1968), at 838.

[197]They represent, I think, considerable reliance on what I have called the "essentialist" view.

[198]I express no final view on this, because the matter has not been argued. This possibility could be readily tested, if it were a matter of concern, by an application for a declaration of validity of the marriage.

[199]If the court took the view that the marriage was not valid, it would refuse the application for divorce, but could make a declaration that the marriage was not valid.

[200]A point made by the applicants: submissions, paragraphs 6, 24.

[201]To similar effect see Sir Ronald Wilson, above, referring to the need for the law to “come to grips with current reality”, and Street CJ’s comment that Mr Bumble “would give chromosomes short shrift”: Harris, 161.

[202]Applicants' submissions, paragraph 26.

[203]SRA, above, at paragraph 95. See Black CJ to the same effect in paragraph 21, quoted earlier.

[204]In his early article, Douglas Smith showed convincingly that the no single factor was a reliable indicator, nor any formula such as one requiring that all or a percentage of characteristics are in conformity: Douglas K Smith, "Transsexualism, Sex Reassignment Surgery and the Law" (1971) 56 Cornell LR 963, at 966ff.

[2001] FamCA 1074

12th October 2001