Attorney-General for the Commonwealth
v Kevin and Jennifer
Full Court of the Family Court
No. EA 97/01
Summary of the submissions
of the Human Rights and Equal Opportunity Commission
On 8 February 2002,
the Full Court of the Family Court granted leave to the Human Rights and
Equal Opportunity Commission ("the Commission") to intervene
in the appeal by the Attorney-General against the judgment of Justice
Chisholm on 12 October 2001. In that judgment, his Honour declared valid
the marriage between Kevin (a post-operative female to male transsexual
person) and Jennifer. Both parties had accepted that a valid marriage
for the purposes of the Marriage Act 1961 (Cth) must be between
a "man" and a "woman". The issue in dispute was whether
Kevin is a "man" for the purposes of that Act.
The trial before
Justice Chisholm was the first time that an Australian court had considered
the basis for ascertaining whether a person is a man or a woman for the
purpose of the law of marriage. This issue had, however, been considered
by a number of courts in other countries, and his Honour considered these
decisions in great detail. He noted in his judgment, however, that no
specific argument has been addressed to him in relation to human rights
principles contained in international instruments to which Australia is
a party. The Commission was of the view that it should seek leave to intervene
in the appeal to make submissions to the Court the relevance of the principles
of international human rights law in considering the interpretation of
the word "man" in the Marriage Act. The Commission submitted
that these principles supported the conclusion reached by the Justice
Chisholm, that Kevin is a "man" for the purposes of the law
The Commission filed
its written submissions on 13 February 2002 and made oral submissions
on 19 February 2002. Its submissions are summarised as follows.
Statutory interpretation informed
by international human rights law
Human rights principles
contained in international treaties to which Australia is a party, such
as the International Covenant on Civil and Political Rights ("ICCPR"),
are an important influence of the development of the common law of Australia,
including the law in relation to marriage. Also, in relation to the interpretation
of statutes, the High Court has held that where there is an ambiguity,
courts should favour a construction of a statute which accords with the
obligations of Australia under international treaties. This is relevant
to the provisions of the Marriage Act that indicate that marriage
must be between a "man" and a "woman". While the vast
majority of people are readily classifiable as a man or a woman, it is
the existence of the difficult case, such as this one, that creates ambiguity
in the word "man".
Application of principles
of international human rights law
The Commission submitted
that the Court should have regard to the following international human
rights principles in carrying out the correct approach to statutory interpretation
in the Marriage Act:
- Guarantees of
equality before the law and non-discrimination in articles 2(1) and
26 of the ICCPR. These are fundamental principles relating to the protection
of human rights and are recognised in a number of treaties which Australia
- That the family
is the natural and fundamental group unit of society and is entitled
to protection by society and the State, and that the right of men and
women to marry and found a family shall be recognised. Both of these
principles are contained in article 23 of the ICCPR. In interpreting
these principles, recognition is given to the existence of various forms
of family and State's are required to give protection in domestic law
and practice to these various forms.
- the right not
to be subject to arbitrary or unlawful interference with a person's
privacy and family in article 17(1) of the ICCPR.
should be given to the recognition of the inherent dignity and worth of
the human person which underpins each of these rights.
Principles of statutory construction
under domestic law
In contrast to the
argument made by the Attorney-General, the Commission submitted that the
meaning that should be given to the word "man" should be its
ordinary current meaning, informed by international human rights principles,
rather than the meaning that the word may have had when the Marriage Act
was enacted in 1961.
Application of these principles
to the appeal
have decided that a person who has undergone gender reassignment surgery
should be recognised for the purposes of criminal law and social security
law as a person of the reassigned sex. In addition, after a person has
undergone reassignment surgery, legislation exists in most of the Australian
states and territories which allows people to apply to have their birth
records altered to reflect their reassigned sex. Once such an alteration
is made, people are legally recognised by state and territory law as the
sex shown in their birth certificate.
argued before Justice Chisholm and the Full Court that, despite these
legal developments, special considerations apply to the institution of
marriage, and that in determining whether a person is a "man"
for the purposes of the Marriage Act, reliance should be placed
solely on three biological factors (genitalia, gonads and chromosomes)
The Commission accepted
that marriage is an important institution in Australia, but submitted
that there is no legal reason why the definition given to the word "man"
in marriage law should be any different to the way it has been interpreted
in other areas of Australian law. In particular, any suggestion that the
validity of a marriage depends on physical capacity for procreation would
be misguided in light of the reality of the situation of many Australian
couples and families.
The Hansard debates
from the early 1960's relating to the Marriage Act clearly recognised
that Australia was a society which incorporated many different cultures
and religions, with different views about the institution of marriage.
The recognition of cultural and ethnic diversity is no doubt far better
and more widely appreciated today. The Commission submitted that the Court
should be cautious about adopting imprecise 'historical' or 'philosophical'
considerations in construing the law in relation to marriage in a way
that would conflict with modern recognition of human rights, based on
principles of non-discrimination and equality before the law.
Convention on the Rights of
The Commission also
made oral submissions concerning the Convention on the Rights of the Child,
another treaty which Australia has ratified. The Commission noted that
Kevin and Jennifer have a child and that Kevin is named as the child's
father on the child's birth certificate. The Commission submitted that
in this particular case, where Kevin is named as the father of the child
on the birth certificate and the parents of the child wish to be married,
it is arguably in the best interests of their child for the State to provide
appropriate legal recognition to the family unit, including the marriage
of Kevin and Jennifer. It is likely that to do otherwise would cause (at
the very least) confusion to the child in a case where Kevin is legally
recognised as the child's father, but cannot be legally recognised as
a man for the purposes of the Marriage Act and cannot, therefore,
marry the child's mother.
updated 6 March 2002.