Transsexual - Australian Legal
Cases
A number of significant legal cases have been heard and decided in Australia
in recent years relating to gender identity disorder/transsexualism.
This page has details - including links to the Family Court decisions for the
cases Re Brodie (May 2008), Re Alex (2004)
and Re Kevin (2001).
Brodie - May 2008
Re Brodie
(Special Medical Procedure)
Justice Carter in the Family Court
has allowed a 12 year old girl to begin hormone treatment to 'stop puberty' with
the eventual aim of being a 'boy' - going on to take male sex hormones (with
another court ruling) and later have surgery (at 18). The decision was made
'urgently' in December 2007, to allow Brodie to begin secondary school as a
'boy'. The decision was not published until May 2008.
One of the saddest
elements of the case is the brokenness of the family (unmarried parents, now
separated). The father objected to the decision but had no legal representation
in court whilst the mother had Legal Aid. Sadly, the girl, now called 'Brodie',
says she wants to be 'married' with a wife and children - what a hard road lies
ahead if she pursues this 'wish' to be a boy.
Court Decisions:
Main Family Court decision -
click here.
Full orders plus reasons - outline of family situation, feelings of
'Brodie'.
Family Court decision July 2007- click here.
Regarding
jurisdiction of the court. This decision highlights the background of the case
and the family situation.
Media
reports - Herald
Sun - Daily
Telegraph - ABC - Herald
Sun (family concern at decision) - ABC
(AMA comment).
Alex
- 2004
Re
Alex : Hormonal Treatment for Gender Identity Dysphoria [2004] FamCA 297 (13
April 2004)
The Family Court allowed a 13 year old girl, called
'Alex', to begin hormonal treatment to start the process to becoming a boy. The
father, whom the girl was close to, had died when she was five or six. The
mother and Alex migrated to Australia after marrying a man who sponsored
her. The child became angry at the mother and felt the step-father had
rejected her. Within nine months of arriving, Alex was made the subject of
a care order by a Children’s Court under a child welfare law and a government
department was appointed guardian. The child then lived with a paternal aunt -
and was still living there at the time of the court hearing. Again, a disturbed
family background. Evidence was given that contended the child said they would
rather be dead than go on as they were (as a girl).
Comment: [Supporting the decision]
RE
ALEX: ADOLESCENT GENDER IDENTITY DISORDER AND THE FAMILY COURT OF
AUSTRALIA
EITHNE MILLS - Senior Lecturer and Chair of Family Law
Studies, School of Law, Deakin University. Did her PhD in "in the jurisprudence
of transsexualism and other intersex conditions".
Grace Abrams - Passport gender -
2007
Grace Abrams is a male to female transsexual who
married Fiona Power a month before her transsexual 'transition' was complete.
Grace then applied for a passport in the 'female' gender. The Passport Office
required a birth certificate stating 'female' which Abrams could not obtain
because she was married (whilst still a man). Australian law states that if
a person is married, they cannot change their gender on their birth certificate
(as that would effectively legalise marriage between two people of the same
gender).
Abrams then appealed against the decision to the
Commonwealth Administrative Appeals Tribunal - in September
2007, the Tribunal set aside the decision and ALLOWED Abrams to have a passport
listing her as a 'female' even though she did not have a matching birth
certificate.
Decision:
Abrams and
Minister for Foreign Affairs and Trade [2007] AATA 1816 (28 September
2007)
Homosexual media
article:
Trans
woman wins landmark passport case
Out in Perth
, 5 Nov 2007.
Kevin and Jennifer - 2001/2003
In Re
Kevin (Validity of Marriage of Transsexual) [2001] FamCA 1074 (12 October
2001)
A 2001 case testing the validity of marriage between Kevin
and Jennifer. Kevin was a post-operative female-to-male transsexual. The
original decision recognised the marriage. The federal Attorney-General appealed against the
decision. The original decision was upheld in 2003.
From the decision:
"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. ..."
The
Family Court ruled that the marriage was valid [paragraph
330].
Ironically, the judge said that if he
had ruled Kevin was still a woman, a situation where a female and a
male-to-female transsexual wanted to marry would then be allowed as a 'woman and a man' marriage
- but since they were living as two women it would in effect
seem to allow a 'same-sex marriage'!
Appeal:
The federal Attorney General appealed
against the decision. The Full Bench of the Family Court heard the
appeal in February 2002. The decision to uphold the original decision
was handed down on 21 February 2003.
The decision (appeal):
The
Attorney-General for the Commonwealth & "Kevin and Jennifer" & Human
Rights and Equal Opportunity Commission [2003] FamCA 94 (21 February
2003)
From the lawyer representing
Kevin & Jennifer:
Rachel Wallbanks, also a
male-to-female transsexual, represented Kevin and Jennifer. She has written a
comprehensive assessment (from her perspective) of the previous law, the case.
the evidence and the decision:
Transsexual
Marriage in Australia
Rachel Wallbanks (posted on the
UNSW Council of Civil Liberties website)
Useful Overview by the
Australian Parliamentary Library
Transsexuals
- Re Kevin and the Validity of Marriage of a
Transsexual
Australian Parliamentary Library, Ian Ireland
Law and Bills Digest Group - 12 February 2002
Research Note 16
2001-02
AB - Birth
certificate/married - 2007
AB is a male-to-female
transsexual who had completed gender-reassignment surgery in 2002. At the time
AB was married to a woman, though living separately and apart.
AB then
applied to the Victorian Register of Births, Deaths and Marriages to have
the gender altered on AB's birth certificate. The Registrar refused
on the basis that Victorian law states that a birth certificate cannot be
altered if the person is still married.
AB then took a claim to the Federal
Court, alleging that she was discriminated against on the ground of 'marital
status' and asserting there was "inconsistency between State and
Commonwealth legislation"..
The original federal Court ruling, by Kenny,
found in AB's favour.
The Victorian Registrar of Births, Deaths and
Marriages appealed.
The Full Court of the Federal Court overturned the
original decision - the Full Court decision was handed down on 29 August 2008.
Original decision: not
online.
Full Court
decision:
AB
v Registrar of Births, Deaths and Marriages [2007] FCAFC 140 (29 August
2007)
Author: Jenny Stokes | Modified: 30 July 2008 |
