NSW: Test case into same-sex marriages in Family Court

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NSW: Test case into same-sex marriages in Family Court

By Denise McNamara

SYDNEY, Feb 18 AAP - The question of what in law constitutes a man is being consideredin an Australian test case before a Sydney court.

The case is being brought by federal Attorney-General Daryl Williams over the marriagebetween a male transsexual and a woman.

The full bench of the Family Court is hearing an appeal of a court decision last Octoberwhich declared valid the 1999 marriage of Kevin, who was born a woman, to another woman,Jennifer.

Kevin, born in 1965 as Kimberley, was granted a birth certificate which showed himas a male in 1998 after undergoing gender reassignment surgery.

Kevin and Jennifer met in October 1996 and a year later they commenced an IVF programthrough which Jennifer became pregnant and gave birth to a son.

In August 1999, they were issued with a marriage certificate by a celebrant and latersought to have the marriage declared valid, which triggered the court action by the attorney-general.

In his decision, Justice Richard Chisholm concluded that Kevin was a `man' for thepurposes of marriage because he, his family and friends perceived him to be one.

He pointed to his sex change surgery and the birth of their child, with another babyon the way, as further evidence of factors other than genitalia at birth which definedhim as a `man'.

However, Henry Burmester, QC, for the Commonwealth today submitted that Kevin did notfulfill the biological criteria for a `man' under the Marriage Act as he was born withfemale chromosomes, gonads and genitals, characteristics under British law which definedmales and females.

A person born with physical and biological attributes of a man or woman "does havea significance which subsequent sex change operations cannot displace", he told the court.

Justice Chisholm had given "undue prominence in trying to define man in a way thatwas universally applicable" and not in the "ordinary meaning of man as contained in theMarriage Act" which was a union of a man and a woman, Mr Burmester said.

The definition of man should not be "by reference to desirable social policy", he told the court.

Because the ability to procreate was central to the definition of marriage under theAct, the biological characteristics of a person were central to determining a person'sstatus as a man or woman, he said.

Rachael Wallbank, solicitor for the couple, said Kevin and Jennifer were entitled tobe married as a man and woman and they did not seek to distort the "traditional and ancient"

meaning of marriage under the Act.

The world's most distinguished medical experts had given evidence in this case thattranssexualism was the result of a mistake by the brain which determined the sex of aperson in contrast to the physical characteristics, she said.

So compelling was the need to bring "harmony" between the brain and the body that "peoplewho experience transsexualism were willing to risk their livelihood, their family connectionsand their health, as Kevin had done".

They should not be denied marriage because of that "differentiation in sex formation", she said.

It is the first time an Australian court has considered the legality of transsexualsin marriage and the outcome is likely to affect future "intersex" cases.

The hearing continues tomorrow.

AAP dmc/arb/sjk/br

KEYWORD: TRANSSEXUAL NIGHTLEAD