In Re Kevin (Validity of Marriage of Transsexual)

The case of *In Re Kevin* concerned an application for a declaration as to the validity of a marriage. The applicant, referred to as Kevin, was a person who had undergone a sex affirmation surgery and was legally recognised as female. Kevin sought to marry another woman. The central dispute revolved around whether Kevin's sex, for the purposes of marriage, should be determined solely by biological markers present at birth, or if other factors, including surgical and hormonal changes, could be considered. The matter came before Chisholm J in the Supreme Court of Victoria.

The primary legal issue before the Court was to determine the criteria for establishing a person's sex for the purposes of the *Marriage Act 1961* (Cth). Specifically, the Court had to decide whether the common law definition of marriage, as interpreted in *Corbett v Corbett (otherwise Ashley)*, which focused on biological sex at birth, represented the applicable law in Australia. This required the Court to consider whether a person who had undergone sex affirmation surgery could be considered of the sex they had transitioned to for the purposes of entering into a valid marriage.

Chisholm J departed from the rigid approach in *Corbett v Corbett*, finding that the definition of sex for the purposes of marriage was not confined to biological characteristics at birth. The Court held that the legal recognition of a person's sex, following medical and surgical intervention, was a relevant consideration. His Honour reasoned that the *Marriage Act* did not define "man" or "woman" and that the common law, in its application to contemporary society, should evolve to recognise the reality of gender transition. The Court adopted a more holistic approach, considering the individual's identity and legal status post-transition.

The Court declared that Kevin was a woman for the purposes of the *Marriage Act*, and therefore, the proposed marriage between Kevin and another woman was valid.