Summary of the submissions by the Commission

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 of marriage.

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 has ratified.
• 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.

Particular emphasis 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

Australian courts 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.

The Attorney-General 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) at birth.

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 Child

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.

Last updated 6 March 2002.