AU: Court of Confusion - SX News 10 October 2007

COURT OF CONFUSION

Katrina Fox’s understanding of the law is somewhat confused as evident from her report on recent developments in the jurisprudence of transsexualism, ‘Australia’s first legally married lesbians’ (SX #349), which does no one a great favour.

Katrina unduly raises the hopes of those who are gay or lesbian and who earnestly seek the right to marry their loved ones, but are still denied that by the proscription against same-sex marriage that has always been enshrined in the Marriage Act. Howard’s recent amendment did nothing to alter the law in that regard, but it certainly reinforced the inherent discrimination.

And she adds to the confusion over the legal status as to sex of men and women who have completed the treatment for transsexualism, including sex affirmation surgery.

It has been quite clear since the Family Court settled the question in 2001, in the case of Re Kevin, that the sex of a person for the purpose of marriage is their sex at the time the marriage was entered into. It was made equally clear that the sex of a person for most other purposes following sex affirmation surgery is their affirmed sex.

Grace was therefore legally a male when she married her partner even though she is now a female for all other purposes except her birth certificate.
All the states have similar provisions in their Births, Deaths and Marriages Registration Acts allowing persons who have completed sex affirmation to obtain a birth certificate that reflects their contemporaneous circumstances. That is, except those who are under 18 years or are ‘not unmarried’.
It is this issue of birth certificates which is most deserving of further discussion.

A woman of transsexual background known only as ‘AB’ was recently unsuccessful on a technicality in her application to the Federal Court to have the ‘unmarried’ requirement declared invalid. The Full Court found her to be a woman for all other purposes including for an action in sex discrimination under the Commonwealth Act but also found her prior marriage to a woman was, at the time, a marriage between a man and a woman and therefore remained valid.

In the Abrams’ case, the AAT pointed to the ludicrousness of having documents of identification that do not reflect the reality and made the Commonwealth Minister issue a corrected passport. It’s time state Attorneys-General of Australia did the same with birth certificates.
Kaz, St Andrews, Vic