Gender Politics

Mum and dad and two kids - all they want to do is get married. But the Government has other ideas

[SYDNEY, AUSTRALIA] - Kevin and Jennifer consider themselves a normal, married Australian couple. They have two little boys, a mortgage, and a loving, extended family. Kevin is a keen do-it-yourselfer who likes lots of help from his boys: the elder of them copies Dad's every move with his own plastic shovels, rake, wheelbarrow, hammer, and drill.

This family likes to take trips to the beach. They like playgrounds, barbecues and riding bikes. The boys, aged three and one, love to hose the family car almost as much as they love to hose each other. They remain oblivious to the fact that the federal Attorney-General, Daryl Williams, has twice tried to have their parents' marriage ruled invalid.

Williams fears there is a major principle at stake, for Kevin was born Kimberly. Williams fears that if transsexuals are allowed to marry as the sex they legally become through hormone treatment and surgery, it places a big question mark over the idea of marriage - what it means, and who is allowed to do it.

But while Williams believes Kevin was born a woman and can thus never qualify as a husband, the Family Court has taken a profoundly different view: that Kevin has always been a man.

Kevin, 37, and Jennifer, 36, met in 1996, the year after Kevin had hormone treatment and irreversible sex reassignment, including breast reduction and a hysterectomy, allowing him to gain a new birth certificate in 1997 declaring he was male. "I thought all my Christmases had come at once," says Kevin of meeting Jennifer. "I was open and honest with Jennifer about my predicament from the beginning."


Jennifer says Kevin's transsexual condition didn't make him seem "any less of a man". On their wedding day in August 1999 before a civil celebrant, she had been seven months pregnant with their first child - both their children were conceived through artificial insemination - and admits it was a stressful day, considering the legal struggle they knew lay ahead.

The couple, who live in the western suburbs of Sydney and are uncomfortable with the media attention (their names have been changed to protect their identities), vow they will tell their boys the truth about their father when the time is right.

In the past, transsexualism was seen as a psychological condition, and transsexuals were considered to be making a choice to change sex, in so far as electing to have sex reassignment surgery. But the weight of recent medical opinion is that transsexualism is biological, and a natural, though uncommon, part of human sexual formation. Transsexualism is thrust upon an individual, not chosen.

In the journal Nature in 1995, endocrinologists and sexologists published a paper that established the new concept of "brain sex". Professors Gooren, Diamond, Walters and Walker argued some people are born with a brain that recognises themselves as a member of the sex opposite to that indicated by their chromosomes, genitals, and gonads. Given the brain sex theory is widely accepted in medical circles - and now by the Family Court in a legal precedent - those cries in the birthing suite of "it's a boy" or "it's a girl" might not always be cut and dried.

"Kevin was not born a woman," says Jennifer. "That is not the language of our case, world-renowned experts, or any of the judges. To talk about transsexualism from a before/after angle is winding the clock back. A 'man born a woman' belongs on Jerry Springer."

THE case of the Commonwealth of Australia v Kevin and Jennifer began in 1998. The couple were making inquiries about their plans to marry when they received an email from the Attorney-General's Department.

"I am sorry we are unable to help you," read the email, "but I am concerned that if you attempt to go ahead with the course of action you suggest you are leaving your partner open to criminal charges and the possibility of jail and I hope you will take this into consideration when making your decision ... Believe me, as a married mother of four, marriage is not all it is cracked up to be."

Jennifer says she found the email "flippant, yet threatening; we were shocked that an employee of the Government would casually reveal her own bias, in writing". They also realised that they were going to need a lawyer.

Kevin and Jennifer had their first appointment with Rachael Wallbank on referral some weeks later. Her credentials as a practitioner in family law impressed them. But Wallbank also had every reason to empathise with their case: at birth she had been declared male. Wallbank does not call herself "a transsexual". She says that description indicates a condition instead of a whole person. She refers to herself as a "person who has experienced transsexualism".

Wallbank accepted the case on a pro-bono basis, and was later funded by the Commonwealth when it became a test case. "I believed my clients were legally married," she says. "It was clear to me that the law of Australia had not yet been declared on the subject of transsexualism and marriage, that it was open to a court to do so. And if Kevin could be recognised as male under criminal and social security law, then why not under marriage law?" Wallbank naturally had an interest in the case "because of my own journey". Kevin's plight was in some ways similar to her own. "There was something very special about having experienced transsexualism myself, which enabled me to present the expert evidence about brain sex with certainty. I was also able to express the effect of difference and discrimination upon loved ones, having seen my own family suffer."

When Wallbank changed what she calls her "public sex" at 38, she had a lot to consider. "I had my own legal practice, was considered a white male, had three beautiful children, a nice house and a relationship with my family that was important to me.

"Why would I put everything I valued in the world at risk? Well, the reason was I could not keep going, trying to manufacture a male persona, when I've known since I was five that I was female. It had become a life-or-death decision."

In 1999, Wallbank applied to the Family Court seeking a judgement validating Kevin and Jennifer's marriage. In preparing the case, Wallbank looked at similar cases overseas, but found that even the most favourable judgements (notably those delivered in New Zealand) had taken the line that transsexualism was a "psychological malady". She wanted to argue otherwise.

"I was certain someone's sex or knowledge of themselves was determined between the ears, as per brain sex, and not between the legs," she says. "The fact is there is no other explanation for why people like Kevin and I exist. There's no other explanation as to why someone like me would undergo sex-affirmation procedures."

Wallbank's argument that transsexualism was an example of natural human diversity, and nothing to do with mental illness, was accepted by the court. In 2001, Kevin and Jennifer were legally confirmed as husband and wife. The court ruled that because Kevin had an irreversible sex re-assignment, he could marry as a man.

But that was not the end of it. Because of the potentially far-reaching consequences of the judgement, lawyers for the Attorney-General appealed the decision to the Full Court of the Family Court, and lost. Government lawyers in both instances argued that a person's sex for the legal purpose of marriage is determined at birth, and no amount of reassignment surgery can alter that.

They also argued that a person's brain sex cannot alter someone's legal status as a man or a woman for the purpose of marriage.

It was, in part, a technical argument that relied on an English court decision of 33 years ago, a decision the court ruled was not binding in Australia. Nor did the court accept the argument that the Marriage Act of 1961 was intended as a code to strictly define the terms "marriage", "man", and "woman".

A spokeswoman for Williams says the case raises serious issues about the meaning of marriage, and the role of Parliament in determining that meaning. The Government may appeal the decision to the High Court. Its chances of success are open to conjecture, although the High Court is seen as being more conservative than the Family Court.

Whatever happens, there will be a need now, says Wallbank, for the states and territories to clarify their laws on births, deaths and marriages, and on discrimination, so that in the case of transsexualism, a person's legal sex, as delineated in their original birth certificate, can be changed to "correct mistakes". This, she argues, is a fundamental human right.

If that happens, such changes will need to untangle transsexualism from transgenderism, which is described by Wallbank as "an act of gender expression". The road ahead is unlikely to be smooth or without confusion.

WHEN Kevin was a very young child and still called Kimberly, his mother would ensure he dressed as a girl on special occasions. She made him stand next to his father naked, to see how their anatomies differed. At school, children teased him for wearing boys' jackets and pants, saying he was a girl, so why would he dress like that?

He fought to defend himself, and his three younger sisters. Family photographs show Kimberly with pistols at age three - the age Kevin says he knew himself to be male - and with a soccer ball at age eight.

Family Court Justice Richard Chisholm noted, in his 2001 judgement, a photograph of the four children. The younger ones are wearing pastel-coloured dresses and sandals, but the eldest is wearing dark trousers and shoes, and what looks like a boy's shirt.

"To my eye," said Chisholm, "despite the shoulder-length hair, he looks as much like a boy as a girl." There was never any confusion for Kevin, though. "I am a man, nothing more or less, just a man," he says. "I am 'trans' nothing. Just a man who has the medical condition, an example of human variation, known as transsexualism.

"I rehabilitated my physical characteristics and corrected the mistake of public identity. There was no transition for me personally. I have always been, and always will be, male."

As for Jennifer, "Kevin is a husband, a father, the bloke next door. He's a brother, an uncle, a much-loved son-in-law. He is an admirable male role model. He is the kind of man I hope my sons will become."