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The Attorney-General for the Commonwealth & "Kevin and Jennifer" & Human Rights and Equal Opportunity Commission [2003] FamCA 94 (21 February 2003)

Last Updated: 7 February 2007

[2003] FamCA 94

FAMILY LAW ACT


IN THE FULL COURT OF
THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal No. EA 97/2001
File No. SY 8136/1999

BETWEEN

THE ATTORNEY-GENERAL FOR THE COMMONWEALTH

Appellant


and

“KEVIN AND JENNIFER”

Respondents

and

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION


Intervener

REASONS FOR JUDGMENT OF THE FULL COURT


Coram: Nicholson CJ, Ellis and Brown JJ
Dates of Hearing: 18 and 19 February 2002
Date of Judgment: 21 February 2003


APPEARANCES:

Mr Burmester QC with Ms Eastman of counsel instructed by the
Australian Government Solicitor, 133 Castlereagh Street, Sydney NSW 2000,
appeared on behalf of the Appellant.

Ms Rachel Wallbank, Solicitor of Wallbanks, Solicitors,
1 Marion Street, Strathfield NSW 2135,
appeared on behalf of the Respondents.

Mr Basten QC instructed by the Human Rights and Equal Opportunity Commission, 133 Castlereagh Street, Sydney NSW 2000,
appeared on behalf of the Intervener.

CATCHWORDS:

APPEALS - Marriage – Validity – Appeal against declaration of validity of marriage between a woman and a post-operative female to male transsexual person – s. 113 Family Law Act 1975 - No application that the Full Court receive further evidence upon questions of fact pursuant to s. 93A - Family Law Act 1975 - Appeal dismissed.

CONSTITUTIONAL LAW - Meaning of marriage in the Constitution - Not to be regarded as frozen in time to the definition as it was understood in 1901 - W v T (1998) FLC 92-808, Attorney-General for NSW v Brewery Employees Union of NSW [1908] HCA 94; (1908) 6 CLR 469, Attorney-General (Vic) v The Commonwealth [1962] HCA 37; (1962) 107 CLR 529, Cormick & Cormick v Salmon [1984] HCA 79; (1984) 156 CLR 170, Re: F ex parte F [1986] HCA 41; (1986) 161 CLR 376, The Queen v L [1991] HCA 48; (1991) 174 CLR 379, Re : Wakim; ex parte McNally [1999] HCA 27; (1999) 198 CLR 511, Hyde v Hyde and Woodmansee (1866) LR 1 P&D 130, Senate Hansard, 18 April 1961, ss. 46(1) and 69(2) Marriage Act 1961, ss. 43, 114(2) Family Law Act 1975, considered.

STATUTORY INTERPRETATION - Question of law what criteria should be applied in determining whether a person is a ‘man’ or a ‘woman’ for the purpose of the law of marriage - Marriage Act held not to be a code - Contemporary ordinary every day meaning is to be given to the words ‘man’ and ‘marriage’ for the purpose of the Marriage Act 1961 (Cth) – Meaning of ‘man’ includes a post-operative female to male transsexual - Question of fact whether the criteria are met in a particular case – Trial Judge correct to find on the evidence that the post-operative female to male transsexual person in this case is a ‘man’ for the purpose of the Marriage Act - R v Harris and McGuiness (1988)] 17 NSW LR 158, Secretary, Department of Social Security v SRA [1993] FCA 573; (1993) 118 ALR 467 followed; Corbett v Corbett (otherwise Ashley) [1971] P83 and Bellinger v Bellinger [2001] EWCA Civ 1140; [2001] 2 FLR 1048 not followed; In the Marriage of C and D (falsely called C) (1979) FLC 90-636 disapproved; Cozens v Brutus [1972] UKHL 6; [1973] AC 854, Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280, Fitzpatrick v Sterling Housing Association Ltd [2001] AC 27, R v McMinn (1981) 38 ALR 565, Bennion (1997) Statutory Interpretation – A Code (3rd Ed) applied; W v W [2001] 2 WLR 673, Corporate Affairs Commission of NSW v Yuill [1991] HCA 28; (1991) 172 CLR 319, Attorney-General v Otahuhu Family Court [1995] 1 NZLR 603, Goodwin v The United Kingdom (European Court of Human Rights Application no. 28957/95; judgment delivered 11 July 2002), I v The United Kingdom (European Court of Human Rights Application no. 25680/94; judgment delivered 11 July 2002), Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, The Queen v L [1991] HCA 48; (1991) 174 CLR 379, ss. 1, 43, 51, 114(2) Family Law Act 1975, ss. 23, 23A, 23B, 42, 66 Marriage Act 1961, ss. 155, 185 Evidence Act 1995(Cth), s. 49 Births, Deaths and Marriages Registration Act 1995 (NSW), s. 1 Nullity of Marriage Act 1971 (UK), s. 11(c) Matrimonial Causes Act 1973 (UK) considered; Maynard v Hill 125 U.S. 190 (1888), Egan v Canada [1995] 2 SCR 513, Layland v Ontario (Consumer and Commercial Relations) and others (1993) 104 DLR (4th) 214, Miron v Trudel [1995] 2 SCR 418, Quilter v Attorney-General [1998] 1 NZLR 523 cited.



INTRODUCTION

1.This is an appeal by the Attorney-General for the Commonwealth against a declaration made by Chisholm J. on 12 October 2001 that the marriage between Kevin and Jennifer (pseudonyms used for the reasons of anonymity) (“the Respondents”) solemnised on 21 August 1999 be declared a valid marriage.

2.In 1998, the Respondents made enquiries of the Attorney-General as to the validity of a proposed marriage between them. The reply that they received was inconclusive. They went through a ceremony of marriage on 21 August 1999 and thereafter have resided together as a married couple. At the date of the marriage, Kevin was a post-operative transsexual person who, at the time of his birth, was registered as a female.

3.On 18 October 1999, the Respondents filed an application seeking a declaration of the validity of the marriage pursuant to the provisions of s.113 of the Family Law Act 1975 (Cth) (“the Family Law Act”). The Attorney-General intervened in those proceedings which came on for hearing before Chisholm J. At the hearing, both the Respondents and the Attorney-General accepted that a valid marriage, for the purpose of the Marriage Act 1961 (Cth) (“the Marriage Act”), must be between a man and a woman. The Respondents submitted that, at the relevant time, namely the date of the marriage, Kevin was a man for the purpose of the marriage law of Australia and that the Court should thus declare that their marriage was valid. The Attorney-General submitted that Kevin was not a man for the purpose of the marriage law and that accordingly, the Respondents’ application for a declaration should be dismissed.

4.The Respondents did not assert, either before the trial Judge or on appeal, that Australian law recognises marriage between same sex couples. Their contention was and is that, at the date of the marriage, Kevin was a man and accordingly their marriage is valid.

5.The trial Judge concluded that, for the purpose of ascertaining the validity of a marriage under Australian law, the question of whether a person is a man or a woman is to be determined as at the date of the marriage and that in the context of the rule that the parties to a valid marriage must be a man or a woman, the word ‘man’ has its ordinary current meaning according to Australian usage. The trial Judge further concluded in the light of the evidence that Kevin was a man for the purpose of the law of marriage at the date of the marriage.

BACKGROUND INFORMATION

6.At trial, a considerable volume of evidence was adduced as to Kevin’s childhood experiences and the processes through which he transitioned from the appearance as female at birth to presenting as male at the date of his marriage.

7.We note that the trial Judge recorded that prior to the marriage, Kevin had undergone several medical procedures to remove both primary and secondary female sexual characteristics and to substitute male sexual characteristics. Expert evidence before the trial Judge concurred that the procedures and processes referred to in the evidence are the means through which gender reassignment is achieved. In Kevin’s instance, this involved hormone treatment and irreversible surgery conducted by appropriately qualified medical practitioners.

8.Following surgery, Kevin applied to the Registrar of Births, Deaths and Marriages to have his reassigned sex from female to male noted on the Register of Births pursuant to the provisions of s.32B of the Births, Deaths and Marriages Registration Act 1995 (NSW). Subsequent to the medical procedures and processes, Kevin is recognised, under both Commonwealth law and the law of New South Wales where he resides, as a man for various purposes.

9.It was common ground before the trial Judge that Kevin had female chromosomes, gonads and genitals at birth. He deposed that for as long as he could remember, he had perceived himself to be male, that for years he has been living as a male and that he is treated as a male in his family, work and social life.

10.The path by which Kevin came to adopt the physical characteristics and social role of a male was set out by the trial Judge as follows:

“24. ... for as long as he could remember, Kevin has perceived himself to be male. When he was a very young child his mother tried to persuade him that he was a girl and that he should behave as a girl. She forced him to dress as a girl on special occasions. She had Kevin and his father stand naked in front of each other to demonstrate that they had different anatomies. None of this worked: he continued to believe he was a boy. He wore boys’ clothes whenever he could. He refused to play with girls’ toys.

25.Kevin was the oldest of four children: he had three sisters. He saw his relationship with them as being that of an older brother. He would physically defend them, at school and elsewhere, after his father had left the family home. He did some of the physical tasks his father had done, such as mowing the lawns and doing household repairs. His mother gave him “boys’ presents” such as footballs and cars, and made boy's clothing for him. Some family photographs are striking: at age 3, with pistols; at age 8, with a soccer ball and trophy. Most remarkable is a photograph of Kevin aged about 15 or 16, with his sisters. They are wearing pastel coloured dresses and sandals. He is wearing dark trousers and shoes, and what looks like a boy’s shirt. To my eye, despite the shoulder length hair, he looks as much like a boy as a girl.

26.Kevin describes his adolescence, and the feminisation of his body, as a “time of pain and dread”. He was harassed at times at school because of his male attitude and appearance. He wore a jacket of the type worn by boys, and students mocked him, saying he was a girl, and asking why he dressed like that. Arguments would sometimes develop into fighting, at which he was adept. He says that during his adolescence and early adult years he kept most of his thoughts to himself and felt extremely alienated from people.

27.In late 1994 he commenced work with his present employer. Throughout his employment there he generally presented as a male, wearing trousers and shirts to work. In mid 1995 someone showed him an article about sex reassignment treatment, and he can still recall his “feelings of relief and excitement upon learning of other people like me and of how they had discovered the medical means to express their true sex as men.”

28.Kevin embarked on hormone treatment in October 1995. This led to coarse hair growth on his face, chest, legs and stomach, and a deeper voice. His body was already muscular from sport and lifting weights, but it became more so. He later saw Dr. Anne Conway, an andrologist at the Concord Repatriation General Hospital. Dr. Conway reports that it is likely that he has had a testosterone level in the adult male range since 1995 and certainly since 1997 when he started treatment at her Department.

29.In November 1997 Dr. Laurence Ho, a plastic surgeon, carried out breast surgery as part of Kevin’s gender reassignment program, reducing them to “suitable male size” by liposuction. Dr. Ho says that Kevin was “very pleased with the result”. In September 1998 he had further surgery: Dr Anne Pike, whose report is also in evidence, performed a total hysterectomy with bilateral oophorectomy.

30.As a result, Kevin’s body was no longer able to function as that of a female, particularly for the purposes of reproduction and sexual intercourse. Dr Haertsch, a plastic surgeon, has provided evidence that the surgery Kevin has undergone “is sexual reassignment surgery” within the meaning of Section 32A of the Birth Deaths and Marriages Registration Act 1995 (NSW). He has elected not to have further surgery involving the construction of a penis or testes. Such surgery is complex and expensive, and has risks of complications and failure. The Attorney-General has not sought to argue that the sex-reassignment surgery was in any way incomplete or unsuccessful.” (footnote omitted)

11.An affidavit of Professor Milton Diamond, Professor of Anatomy and Reproductive Biology at the School of Medicine, University of Hawaii, was put before Chisholm J. In his affidavit, Professor Diamond commented upon the reports of two expert psychiatric witnesses Professor Nathaniel McConaghy and Professor Cornelius Greenway, whose affidavits were also before Chisholm J. The factual contents of the affidavit evidence of these witnesses was not challenged at the hearing.

12.Professor Diamond deposed:

“[Kevin] is typical in choice of surgeries. Most often the female to male transsexual will adopt a male name and dress, and work, live and play as expected of a male in society. For the female to male (FtM) transsexual the most desired surgery is hysterectomy to stop menses, removal of ovaries to stop estrogen production and mastectomy to remove the breasts. His taking of male hormones produces hirsutism and a desired deepening of the voice. Phalloplasty, the construction of a penis to improve a male body image or to facilitate sexual activity is not uncommon but is less often requested. Many FtM transsexuals forgo this penile construction surgery due to its difficulty, lack of insurance that the penis will function adequately when surgery is complete and expense. Further, for many transsexuals, living as a male is done for mental reasons less associated with eroticism. Other behaviours can substitute for penile-vaginal intercourse. Following the actual sex reassignment surgery, female to male transsexuals generally “pass” quite well and are easily accepted in society.

Indeed, conditions are such that [Kevin] cannot probably live in any manner other than as a man in society. Aside from his inner feelings of male-ness, his appearance and demeanour would make it difficult for him to be accepted as a woman. To force such a condition would be cruel to him, to his wife and all social contacts. Society would most greatly lose thereby.”

13.The rigours of undergoing the gender re-assignment process that would appear to have been experienced by Kevin are not unique. The general experience was eloquently described by Judge Martens in his dissenting opinion in the European Court of Human Rights in Cossey v The United Kingdom [1990] 13 EHRR 622, cited by Chisholm J, and referred to in submissions before us by counsel appearing on behalf of the Human Rights and Equal Opportunity Commission (at pars 3.16 and 3.17). Judge Martens commented:

“[A transsexual person] is prepared to shape himself and his fate. In doing so he goes through long, dangerous and painful medical treatment to have his sexual organs, as far as is humanly feasible, adapted to the sex he is convinced he belongs to. ...

Sexual identity is not only a fundamental aspect of everyone’s personality but, through the ubiquity of the sexual dichotomy, also an important societal fact. For post-operative transsexuals sexual identity has, understandably, a very special and sensitive importance because they acquired theirs deliberately, at a high cost in mental and bodily suffering.”

14.This case clearly illustrates the serious difficulties facing an individual such as Kevin, who has undertaken gender re-assignment.

THE REASONS FOR JUDGMENT OF THE TRIAL JUDGE

15.We feel it is helpful in the context of this case to summarise in some detail the judgment of the trial Judge, although it has been reported at [2001] FamCA 1074; (2001) FLC 93-087; (2001) 28 Fam LR 158.

16.A summary of his Honour’s conclusions is as follows:

1. For the purpose of ascertaining the validity of the marriage under Australian law, the question whether a person is a man or a woman is to be determined as at the date of the marriage.

2. There is no rule or presumption that the question whether a person is a man or a woman for the purpose of marriage law is to be determined by reference to circumstances at the time of birth. Anything to the contrary in Corbett v Corbett (otherwise Ashley) [1971] P83 does not represent Australian law.

3.Unless the context requires a different interpretation, the words man and woman when used in legislation have their ordinary contemporary meaning according to Australian usage. That meaning includes post-operative transsexuals as men and/ or women in accordance with their sexual reassignment, R v Harris & McGuiness (1988)] 17 NSW LR 158; Secretary, Department of Social Security v SRA [1993] FCA 573; (1993) 118 ALR 467 followed.
4.The context of marriage law, and in particular the rule that the parties to a valid marriage must be a man and a woman, does not require any departure from ordinary current meaning according to Australian usage of the word ‘man’.
5.There may be circumstances in which a person, who at birth had female chromosomes, gonads, and genitals, may nevertheless be a man at the date of a marriage. In this respect, the decision in Corbett does not represent Australian law.
6.In the present case, the husband at birth had female chromosomes, gonads and genitals but was a man for the purpose of the law of marriage at the time of his marriage, having regard to all the circumstances and in particular the following:
(a)He had always perceived himself to be a male;
(b)He was perceived by those who knew him to have had male characteristics since he was a young child;
(c)Prior to the marriage he went through a full process of transsexual re-assignment, involving hormone treatment and irreversible surgery, conducted by appropriately qualified medical practitioners;
(d)At the time of the marriage, in appearance, characteristics and behaviour he was perceived as a man, and accepted as a man, by his family, friends and work colleagues;
(e)He was accepted as a man for a variety of social and legal purposes, including name, and admission to an IVF program, and in relation to such events occurring after the marriage, there was evidence that his characteristics at the relevant times were no different from his characteristics at the time of the marriage;
(f)His marriage as a man was accepted, in full knowledge of his circumstances, by his family, friends and work colleagues.

17.His Honour’s judgment contains an important discussion about the meaning of the term ‘transsexual’ as describing a person. He concluded that a ‘transsexual’ means a person who has some or all of the physical or biological characteristics of one sex, but who experiences himself or herself as being of the opposite sex, and has undergone hormonal and surgical treatments to change some of the physical characteristics in order to conform more closely to the opposite sex.

18.His Honour pointed to the problem arising from the fact that the word ‘transsexual’ suggested a sexual transition, passing from one sex to the other, but he said that this did not convey the fact that transsexual people normally experience themselves as belonging to the other sex from birth and therefore before, as well as after, the hormonal or surgical procedures.

19.In a passage in his sensitive judgment, his Honour expressed concern that the use of the word ‘transsexual’ as a noun, might tend to have a dehumanising effect, but he felt that in the absence of any suitable alternative, he would have to adopt it. Although we share his Honour’s concerns, we note that subsequent to Chisholm J’s judgment the Lord Chancellor’s Department has published a paper entitled Government Policy concerning Transsexual People (see: www.lcd.gov.uk.constitution/transsex/policy.htm) in which it is said:

“Government policy is to use the terms transsexual people or transsexual person, transsexualism and gender reassignment – and not the respective expressions transsexuals, transsexuality and sex change which some transsexual people find unacceptable.”

20.We respectfully agree with this suggested nomenclature and we propose to adopt it in this judgment.

21.It is important to remember that there is usually a distinction between a transsexual person and a homosexual person, as his Honour correctly pointed out. He noted that a transsexual person might or might not be of a homosexual orientation. Similarly, as his Honour pointed out, a transsexual person should not be confused with a person who is termed a ‘transvestite’, in that the latter is someone who dresses in the clothes of the other sex but often does not regard themself as a member of the opposite sex.

22.In coming to his conclusions, his Honour relied upon the evidence of specialist witnesses, including Professor Gooren, Professor McConoghy, Professor Diamond and Dr Cornelis Greenway. He recorded the observation of Professor McConoghy that Kevin presented as an intelligent, emotionally warm man, who would be accepted socially as completely masculine. Professor McConoghy also expressed the view that Kevin’s “brain sex or mental sex is male”. His Honour noted that Professor McConoghy, in referring to the evidence of Professor Diamond, deposed that he agreed with Professor Diamond’s opinion “that further research will confirm the present evidence that brain sex or mental sex is a reality which would explain the persistence of a gender identity in the face of or contrary to external influences”.

23.His Honour also referred to the following view expressed by Dr Greenway:

“After considering the history as given by Kevin and Kevin’s presentation on interview, there is no doubt in my mind that Kevin is psychologically male and that this has been the situation all his life. There is also no doubt that as far as Kevin is concerned, he is a male and has always been a male. From the history provided by him, there is little doubt that people that know him consider him as a male and relate to him as a male. This certainly appears to have been the case on 21 August 1999 when he got married.

I do not believe that Kevin’s perception of himself as a male is a result of a psychosis nor of a delusional disorder. I do not believe that he is suffering from a body dysmorphic syndrome.”

24.His Honour also referred to the extensive non-medical evidence from some 39 witnesses, 23 of whom were family and friends of Kevin and 16 of whom were work colleagues and acquaintances. That evidence was to the effect that Kevin had always regarded himself as a male and had always been treated as such.

25.His Honour commented (at par 68):

“The cumulative impact of the evidence of these 39 witnesses is striking. It shows the husband as perceived by those involved with him and his family, at work, and in the community. It shows him as a person: not an object of anatomical curiosity but a human being living a life, as we do, among others, as a part of society. It shows him living a life that those around him perceive as a man’s life. They see him and think of him as a man, doing what men do. They do not see him as a woman pretending to be a man. They do not pretend that he is a man, while believing he is not.”

26.Thereafter, his Honour discussed Corbett and Corbett (Otherwise Ashley) (1971) P 83, in particular, Ormrod J’s conclusion that an individual’s sex is determined at birth by reference to an examination of three biological factors, namely chromosomes, gonads and genitals.

27.Chisholm J noted (at par 2) that “Australian law has not yet determined the basis for ascertaining whether a person is a man or a woman for the purpose of marriage law”. As the Attorney-General had largely relied upon the analysis presented by Ormrod J in Corbett, his Honour concluded that it was therefore necessary to closely examine the reasoning contained therein in order to determine whether Corbett represented the present law in Australia. If it were the case, it would then follow that the application must fail (at par 70). His Honour noted that English decisions such as Corbett “... are no more than a guide to the common law in Australia” (at par 71) and that the decision in Corbett was useful “... only to the degree of the persuasiveness of its reasoning”.

28.His Honour went on to say:

“73. ... I take it to be a question of law what criteria should be applied in determining whether a person is a man or a woman for the purpose of the law of marriage, and a question of fact whether the criteria exist in a particular case.” (footnote omitted)

29.His Honour identified the following as a key passage in the reasons of Ormrod J:

“It is common ground between all the medical witnesses that the biological sexual constitution of an individual is fixed at birth (at the latest), and cannot be changed, either by the natural development of organs of the opposite sex, or by medical or surgical means. The respondent’s operation, therefore, cannot affect her true sex.”

30.Thereafter, his Honour summarised his understanding of the argument advanced by Ormrod J as follows:

1. The biological sexual constitution of all individuals is fixed at birth and cannot be changed (major premise).
2. Ms Ashley’s biological sexual constitution at birth was male (minor premise).
3. Therefore Ms Ashley’s biological sexual constitution remains male (conclusion).
4. Therefore Ms Ashley’s true sex is male.
5. The validity of the marriage depends upon Ms Ashley’s true sex.
6. Therefore, the other party being a man, the marriage is invalid.”

31.His Honour said that while the first three steps appeared to be logical, the only basis for step four appeared to be that Ms Ashley’s then biological sexual constitution was to be treated as equivalent to her true sex. He said that the key issue was whether social and psychological matters were relevant in determining whether April Ashley was a man or a woman, and that Ormrod J had excluded these matters by way of definition but gave no reason for doing so. His Honour then said that step five - which was apparently a statement of law - involved a similar problem because the asserted legal proposition that ‘true sex’ is the test for the validity of marriage is correct only if ‘true sex’ is the sole criterion of determining whether a person is a man or woman.

32.His Honour went on to say:

“80. The reasoning becomes more transparent if the term “true sex” is omitted and the legal principle is stated more accurately in terms of whether a person is a man or a woman. Thus clarified, the argument to this point in the judgment is this:-

1. The biological sexual constitution of all individuals is fixed at birth and cannot be changed (major premise)

2. Ms Ashley's biological sexual constitution at birth was male (minor premise).

3. Therefore Ms Ashley's biological sexual constitution remained male (conclusion).

4. Whether a person is a man or a woman depends solely on the person's biological sexual constitution.

5. Since Ms Ashley's biological sexual constitution was male, she was a man.

6. Therefore, the other party being a man, the marriage is invalid.

81. It is now possible to distinguish statements of fact from statements of law. Step 1 is a statement of fact, based on Ormrod J’s understanding of the evidence. Such statements are general rather than specific, but I do not think such statements can properly be treated as equivalent to propositions of law. It may be appropriate for judges in later cases to assume they are true in the absence of any specific reason to dissent from them. However where evidence is given on the general factual issue, in my view the court must consider the evidence and determine the issue as one of fact.

82. Step 2 is of course a finding of fact about the individual April Ashley on the evidence in Corbett, and has no wider significance. Step 3 is the logical conclusion of Step 1 and Step 2, as steps 5 and 6 are a logical application of the definition of marriage to the conclusions reached in steps 1-4.

83. It is now clear that Step 4, which I have highlighted, is the critical step. It is the kernel of the judgment, the fundamental conclusion that congruent biological factors exclusively determine whether a person is a man or a woman.” (emphasis in original; footnotes omitted).

33.We agree with his Honour’s conclusion but would qualify it by adding the words “as apparent at birth”. We qualify it because that was the effect of the judgment of Ormrod J and because, on the basis of the evidence accepted by his Honour, there may be aspects of a person’s biological make-up and certainly his or her psyche that are not apparent at birth which were not taken into consideration by Ormrod J.

34.His Honour identified this proposition as the kernel of the Corbett judgment. He said it purported to be a statement of law setting out the criteria to be applied in determining whether a person is a man or a woman. However, he also noted that no relevant principle or policy was advanced to support the proposition and no authorities cited to show that it was consistent with other legal principles. The use of the term ‘true sex’ created the false impression that social and psychological matters had been shown to be irrelevant, whereas in truth, they had simply been assumed to be irrelevant.

35.His Honour’s analysis and criticism of Ormrod J’s judgment was that he had adopted an “essentialist view” of sexual identity that excluded matters other than biology. We agree with this view. It is the essence of Ormrod J’s judgment. Whatever the state of medical knowledge was as at 1970, it is apparent that 30 years later, Ormrod J’s test is far too limited and we do not think that it represents the law in this country

36.We also note his Honour’s criticism of Ormrod J’s apparent focus upon the mechanics of genital sexual activity. He referred (at par 91) to what he described as a key sentence in Ormrod J’s judgment, namely:

“The criteria must, in my judgment, be biological, for even the most extreme degree of transsexualism in a male or the most severe hormonal imbalance which can exist in a person with male chromosomes, male gonads and male genitalia cannot reproduce a person who is naturally capable of performing the essential role of a woman in marriage.”

37.His Honour said that the last few words in the passage quoted constituted the only reason given by Ormrod J for excluding non-biological matters. His Honour first queried the use of the word “natural” by his Lordship, and secondly his reference to the “essential role of a woman in marriage”. His Honour in this context referred (at par 93) to the following passage of Gordon Samuels’ extra judicial comment in an article “Transsexualism” (1983) Aust J Forensic Sciences 57-64:

“There is no reason to suppose that she could not provide the companionship and support which one spouse ordinarily renders to the other. She could not conceive and bear children, but it is not the law that marriage is not consummated unless children are procreated or that procreation of children is the principle end of marriage. Hence the female spouse’s ability or willingness to produce children is not a necessary incident of a valid marriage.”

38.We think that this statement has considerable force and represents what we consider to be a considerable shift in our community away from the purely sexual aspects of marriage in the direction of defining it in terms of companionship.

39.His Honour similarly criticised, and we believe correctly, the proposition that the capacity for genital intercourse is the essential role of the woman or the man in marriage. He rejected what he called an essentialist view of sexual identity that individuals have some basic essential quality that makes them male or female. His Honour expressed the view (at par 109) that the task of the law was not to search for some mysterious entity, the person’s ‘true sex’, but to give an answer to a practical human problem, that is, “to determine the sex in which it is best for the individual to live”.

40.His Honour therefore concluded in relation to Corbett, leaving aside any questions about the desirability of the result or of later medical, legal or social developments, that the reasoning of Ormrod J was not persuasive.

41.His Honour next dealt with the argument advanced on behalf of the Attorney-General that the meaning of the word ‘man’ in the Marriage Act should be taken to have the meaning that would have been attributed to the word when the legislation was passed in 1961.

42.His Honour rejected the proposition that there was any general rule of construction that ordinary words should be given the meaning that they had at the time of the passage of the relevant legislation and said that in fact there was support for the contrary view. His Honour said that he did not see any convincing reason to conclude that the legislature in 1961 would have had in mind, or should be deemed to have had in mind, a definition of ‘man’ that incorporated the Corbett approach, that case having been decided ten years later.

43.His Honour then discussed the Australian legal and social environment and the decisions of R v Harris and McGuiness (supra) and Secretary, Department of Social Security v SRA (supra). In both of those cases, the courts did not follow the reasoning in Corbett, although his Honour agreed that the judgments did not purport to overrule Corbett in the context of marriage law. Counsel for the Attorney-General criticised what he said was his Honour’s failure to take into account the fact that the relevant courts in these cases distinguished Corbett, but we consider that he clearly did so.

44.His Honour then dealt with issues such as the recognition by the Births, Deaths and Registration Act 1995 (NSW) of transsexual persons and the recognition in the Commonwealth Crimes Act, following the Crimes Amendment Forensic Procedures Act 2001, of the extension of provisions relating to females to include “a trans gender person who identifies as a female”.

45.His Honour took the view that this type of legislation was of limited relevance, but that it did support the view that there was no insuperable objection to the law recognising the changed sex of a person who has undergone a sex reassignment procedure.

46.His Honour also commented that in the social sense the involvement of the Respondents in the artificial insemination program indicated that medical authorities have no difficulty in accepting Kevin as a man. His Honour considered that this was of particular importance, because the decision involved the approval of Kevin taking the role of husband and father, and that those involved saw no particular difficulties or impediments in this respect.

47.His Honour also referred to international legal developments and, in particular, the decision of the majority of the Court of Appeal in Bellinger v Bellinger [2001] EWCA Civ 1140; [2001] 2 FLR 1048, which followed the decision in Corbett. He distinguished the English situation to that in Australia, where Corbett had never represented the law, and also distinguished the evidentiary situation in Bellinger. His Honour preferred what he described as the powerful dissent in Bellinger of Thorpe LJ, who held that whilst Corbett was right at the time that it was decided, later medical and social developments had rendered it wrong in 2001.

48.His Honour’s judgment contains a useful and comprehensive survey of decisions in other common law jurisdictions and in Europe up to the date of his judgment. In particular, it points out that developments in Europe have tended to isolate the approach that has been taken by the United Kingdom courts in line with the judgment in Corbett.

49.After referring to European legislation and decisions, his Honour said (at par 207):

“Overall I think that these decisions indicate that failure to recognise the sex of post-operative transsexuals raises serious issues of human rights, such that the question arises whether the failure can be permitted on the basis of the margin of appreciation allowed to States under the Convention. It is clear that a decision in favour of the applicants would be more in accord with international thinking on human rights than a refusal of the application.”

50.His Honour referred to what he said was an increased understanding within the international community that was reflected in a general tendency to accept that, for legal purposes, including marriage, post-operative transsexual people should be treated as members of the sex to which they have been assigned.

51.His Honour’s judgment contains a comprehensive discussion of the expert evidence that was given before him and its effect.

52.His Honour recorded (at par 247) “The expert evidence affirmed that brain development is (at least) an important determinate of the person’s sense of being a man or a woman”. He noted that all of the experts who had sworn affidavits were well qualified and that none was required for cross-examination, nor was any contrary evidence called.

53.His Honour pointed out (at par 270) that it was the perception of Ormrod J, and of many medical experts at the time, that transsexual people “suffered from a discontinuity between their biology and their psychology, whereas intersex people experienced inconsistencies within or among their biological qualities”. His Honour was satisfied that the evidence now is inconsistent with this distinction.

54.His Honour said that in his view, the evidence demonstrated, at least on the balance of probabilities, that the characteristics of transsexual people were as much biological as those people thought of as intersex. He said that the difference was essentially that we can readily observe or identify genitals, chromosomes and gonads, but at present we are unable to detect or precisely identify the equally biological characteristics of the brain that are present in transsexual people.

55.However, having accepted this, his Honour said that he did not base his decision on the view that ‘brain sex’ is in law the decisive factor in determining whether a person is a man or a woman, but rather one of them.

56.We comment in passing that ‘brain sex’ is a somewhat unsatisfactory and ambiguous term that was used both before his Honour and ourselves. It is really a shorthand expression that refers to what is understood as being the final stage of sexual differentiation in a developing child’s brain, following chromosomal configuration, gonadal differentiation, and genital differentiation. This theory was advanced in evidence by Professor Gooren, Professor Diamond, Professor Walters and Dr. Walker, and also discussed in detail in an article by Zhou (and others) [“A Sex Difference in the Human Brain and its relation to Transexuality” (1995) 378 Nature 68-70]. The relevance of this theory in relation to transsexual persons is that the weight of medical opinion generally agrees that in the instance of a transsexual person, that individual is born with a brain that recognises him or herself as a member of the sex opposite to that whose physiological indicia he or she bears. The expert evidence before his Honour, which he accepted, was that this was probably of biological origin within the brain. We consider that it was open to his Honour to make this finding. We shall continue to use the term ‘brain sex’ for want of a better one.

57.His Honour considered an argument advanced on behalf of the Attorney-General that marriage is a social institution having its origins in ancient Christian law and that it is intrinsically connected with procreation. It was submitted that there were therefore special considerations attached to marriage.

58.His Honour agreed that ancient Christian law does form the historical basis for marriage, but he was unable to form a conclusion as to how ancient Christian law might have regarded people like Kevin. He took the view that this question was somewhat unreal, since chromosomes were unknown at that time, as was the treatment that Kevin had undergone.

59.His Honour saw no reason why resort should be had to ancient law rather than contemporary understanding.

60.He rejected the proposition that marriage is intrinsically connected with procreation, pointing out that marriages are perfectly valid where one or both parties are infertile. He also referred to the fact that since 1975, the law in Australia has provided no basis for invalidating a marriage on the ground of incapacity to consummate the marriage or indeed on any ground relating to the sexual conduct of parties.

61.His Honour was prepared to accept that in some general sense the role of marriage was closely connected to the generation and care of children. He said, however, that even if this proposition were accepted, it did not support the view that Kevin’s marriage was invalid, because there was no evident reason why he and his wife could not bring up children, and in fact they were doing so. His Honour rejected an argument that a decision in favour of the application would produce enormous practical and legal difficulties.

62.His Honour’s final conclusion in respect of Corbett (at par 326) was:

“Although the extensive evidence and argument require this judgment to be of considerable length, in my view there are overwhelming reasons why the application should be granted. I see no basis in legal principle or policy why Australian law should follow the decision in Corbett. To do so would, I think, create indefensible inconsistencies between Australian marriage law and other Australian laws. It would take the law in a direction that is generally contrary to developments in other countries. It would perpetuate a view that flies in the face of current medical understanding and practice. Most of all, it would impose indefensible suffering on people who have already had more than their share of difficulty, with no benefit to society.”

THE APPEAL

63.The Attorney-General’s Notice of Appeal filed on 26 November 2001 was not within the time prescribed by the Family Law Rules. This was due to the federal election. No objection was raised in this regard. The Notice specifies the following eight grounds of appeal:

“1. The Judge erred in determining that while the Respondent husband at birth had female chromosomes, gonads and genitals, he was a man for the purpose of the Marriage Act at the time of his marriage.
2. The Judge erred in finding that considerations in addition to the congruence of a person’s chromosomes, gonads and genitals were relevant to determining a person’s sex for the purpose of the law of marriage.
3. The Judge erred in having regard to evidence about brain sex as a relevant consideration in determining whether a person is a man for the purposes of the law of marriage.
4. The Judge erred in considering that social acceptance of a person’s sex is a relevant consideration in determining whether a person is a man for the purposes of the law of marriage.
5. The Judge erred in holding that the ordinary meaning of man for the purpose of the Marriage Act includes a post-operative female to male transsexual.
6. The Judge erred in rejecting that there were special considerations applicable to marriage for the purpose of construing the meaning of ‘man’ and ‘woman’ in the Marriage Act.
7. The Judge erred in rejecting the contention that it is for the Parliament to determine whether a post-operative transsexual may marry as a person of the sex other than their biological sex at birth.
8. The Judge should have found that if a person’s chromosomes, gonads and genitals are congruently of one sex at birth, that is determinative in deciding whether the person is a man or woman for the purposes of marriage.”
64.On 8 February 2002, the Full Court granted leave, pursuant to s. 92 of the Family Law Act to the Human Rights and Equal Opportunity Commission to intervene in this appeal. The Commission appeared by counsel at the hearing and advanced arguments supporting the position of the Respondents as to the validity of their marriage.

65.For reasons we gave ex tempore on the first day of the hearing of the appeal, we refused an application by the Respondents for the appeal to be heard in closed court.

THE ISSUES

66.The central question on this appeal is whether it was open to Chisholm J to find that at the relevant time, namely the date of the marriage, Kevin was a man within the meaning of the Marriage Act 1961 and that his marriage to Jennifer was thus a valid marriage. As part of this process it is necessary also to consider whether Chisholm J was correct in the meaning he ascribed to marriage as the term is used in the Marriage Act.

67.For the purposes of these proceedings it was common ground that marriage is a union between a man and a woman signified by certain formalities and carrying with it a status recognised by the law. The issue of whether a marriage can occur between people of the same sex is not an issue in this case. Similarly, the status of pre-operative transsexual persons is not directly in issue.

68.We are therefore required to consider the following issues:

1. What is the historical context of marriage in our society? Is it a static or evolving institution?

2. What is encompassed by the word ‘marriage’ as used in the Constitution?

3. What is the nature of the issues before the Court and to what extent are the various matters to be determined in this case questions of law and questions of fact?

4. Should marriage be given the meaning that it had at the time of the passage of the Marriage Act and what was its meaning at that time? A subsidiary question is whether the Marriage Act constitutes a code, which would support such an interpretation? Alternatively, should marriage be given its contemporary, ordinary, everyday meaning?

5. Is the meaning of marriage confined by the fact that it is a social institution having its origins in ancient Christian law? To what extent does it have its origins in ancient Christian law, and in the absence of an established religion in Australia does this has any relevance? Is or should marriage be regarded as intrinsically connected with procreation as asserted by counsel for the Attorney-General?

6. Should this Court follow the English decisions of Corbett and Bellinger in determining the issues in this case? Do they represent the law in Australia? In any event was the trial Judge entitled to distinguish those decisions upon the basis that the evidence before him asserted that brain sex and/or psyche were equally important factors to those factors identified in Corbett?

7. Was the trial Judge in error in taking into account issues such as social acceptance, evidence of community attitudes, and the Respondents’ acceptance into in-vitro fertilization programmes by the medical profession as evidence of the meaning of ‘man’, for the purpose of the marriage law, in contemporary society?

8. What other international legal developments have taken place that might assist in the determination of the primary issues in this case?

9. What is the position of transsexual persons in relation to marriage in the context of international human rights law, and what effect does it have in determining the primary issues raised by this case? What is the relevance (if any) of the United Nations Convention on the Rights of the Child?

10. What is the effect of various Australian Federal and State statutes and administrative procedures recognising the position of transsexual persons in relation to issues such as birth certificates and the criminal law in relation to the issues in this case?

11. Do the contemporary everyday meanings of the words ‘man’ and ‘marriage’ extend to a transsexual person such as Kevin and his marriage to Jennifer?

The Historical Context of Marriage in our Society

69.It would be neither necessary, nor desirable, to attempt to cover as vast a subject in a judgment such as this. However, since counsel for the Attorney-General has argued that ‘marriage’, in the context of the Marriage Act, should be interpreted from a monogamistic Christian perspective, we think we should touch upon it. He did not advance any detailed historical analysis, nor did he provide us with any references that supported this proposition, despite being invited to do so by us.

70.We think that there is force in the submission of Mr Basten QC on behalf of the Human Rights and Equal Opportunity Commission that the resort by the Attorney-General to terminology describing marriage as a social institution, having its origins in ancient Christian law, can readily disguise stereotypical assumptions and perspectives on the nature of modern marriage relationships.

71.It is common ground that marriage is an important and special social and legal institution, both for the individuals who enter into that commitment, and for the society in which they live. We consider the following remarks by the Law Commission of Canada [(2001) Beyond Conjugality: Recognising and supporting close personal adult relationships available at: http://www.lcc.gc.ca/en/themes/pr/cpra/report.asp] equally applicable to the Australian context and thus apposite:

“Many people long for stability and certainty in their personal relationships just as they do in other areas of their lives, at work or in business. The state does have a role in providing legal mechanisms for people to be able to achieve such private understandings. It must provide an orderly framework in which people can express their commitment to each other and voluntarily assume a range of legal rights and obligations.

In attempting to provide for adequate legal structures or mechanisms that may support the relationships that people develop, the state must respect the values that we outlined earlier: equality, autonomy and choice.

For a long time, the state has focused on marriage as the vehicle of choice for adults to express their commitment. Marriage provides parties with the ability to state publicly and officially their intentions toward one another. It is entered voluntarily. It also provides for certainty and stability since the marriage cannot be terminated without legal procedures. Marriage as a legal tool demonstrates characteristics of voluntariness, stability, certainty and publicity that made it attractive as a model to regulate relationships.”
72.Brennan J (as he then was) undertook a review of the history of marriage in The Queen v L [1991] HCA 48; (1991) 174 CLR 379 in proceedings involving a question of interpretation of the Constitution where a man was facing trial for the alleged rape of his wife. The accused sought to have the Court find that s.73(3) of the Criminal Law Consolidation Act 1935 (S.A.) was invalid:

"No person shall, by reason only of the fact that he is married to some other person, be presumed to have consented to sexual intercourse with that other person."

73.The invalidity was argued to arise due to s. 114(2) of the Family Law Act which states:

"In exercising its powers under sub-section (1), the court may make an order relieving a party to a marriage from any obligation to perform marital services or render conjugal rights."

74.Section 109 of the Constitution states:

"When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid."

75.The accused’s arguments were summarised (at 384-5) by Mason CJ, Deane and Toohey JJ as follows:

“ The respondent submitted that the two provisions are directly inconsistent in that the State Act "eliminates the obligation to perform 'conjugal rights' for every married person in the State of South Australia" while the Commonwealth Act "assumes the existence of the obligation (to render conjugal rights) but gives the Family Court a discretion to relieve a party from it if appropriate". Section 114(2), the respondent argued, preserves the common law notion of "conjugal rights" and that notion, he said, involves the proposition that a wife, by virtue of being married, cannot refuse her consent to sexual intercourse with her husband; that a husband has a "right" to sexual intercourse and that a wife has an obligation to submit to it.

The respondent further submitted that, if the two provisions are not inconsistent, nevertheless the Commonwealth "has intended to 'cover the field' concerning the legal consequences of marriage" and that the State Act seeks to regulate one of those consequences.”

76.All five members of the High Court rejected those arguments. Brennan J’s judgment (at 391) drew upon historical sources to rebut what he considered an underlying assumption, that:

“a husband has a right to have sexual intercourse with his wife whenever he wishes, irrespective of the circumstances, and, if need be, to take her by force and that a wife has, by virtue of her marriage, consented to any act of sexual intercourse with her by her husband.”
77.Explaining that such a proposition “is not and never has been the law of marriage”, his Honour said (at 391-2):

“The legal nature of the institution of marriage is not to be found in the common law. Holdsworth observes that "(t)he temporal courts had no doctrine of marriage" and he records that jurisdiction in matrimonial causes was vested in the ecclesiastical courts from at least the 12th century until the 19th century. The doctrines of the law of marriage were developed in the ecclesiastical courts, not in the courts of common law. Sir William Scott (later Lord Stowell) in Lindo v. Belisario referred to differing opinions as to the nature of marriage: the early opinion of the Ecclesiastical Court that marriage is "a sacred, religious, and spiritual contract", another opinion that it is merely a civil contract. His Lordship thought that neither of those opinions was completely accurate, holding marriage to be "a contract according to the law of nature, antecedent to civil institution, ... a contract of the greatest importance in civil institutions, ... charged with a vast variety of obligations merely civil". In Hyde v. Hyde and Woodmansee, Lord Penzance defined marriage as "the voluntary union for life of one man and one woman, to the exclusion of all others" and that definition has been followed in this country and by this Court. It is the definition adopted by the Family Law Act, s.43(a) of which requires a court exercising jurisdiction under that Act to have regard to "the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life". Marriage is an institution which not only creates the status of husband and wife but also, without further or specific agreement, creates certain mutual rights and obligations owed to and by the respective spouses.” (footnotes omitted)

78.As our subsequent discussion about marriage and the Constitution shows, there has been a divergence of opinion in the High Court about the meaning of marriage in a constitutional sense. Brennan J in a number of cases expressed strong views in favour of a traditional definition of marriage based upon its religious origins. However, he considered that the incidents of marriage had never included a husband’s right to sexual intercourse with his wife without consent.

79.For a contrasting view on the modern role and meaning of marriage, see the remarks of Thorpe LJ in his dissenting judgment in Bellinger (at pars 126 – 129 of his Lordship’s judgment) and those of the Law Commission of Canada quoted in our reasons.

80.For our part, we would question the views of Brennan J as to the unchanged nature of the institution of marriage and the inability of Parliament to legislate in respect of it. With great respect to his Honour, we feel that it would be potentially highly destructive to the institution of marriage for its definition to be frozen at any point in time.

81.Fogarty J in W v T (1998) FLC 92-808 also examined the historical development of marriage with, as was required by the case, particular attention to the issue of solemnisation. His Honour said:

“6.12 Since the waning of the influence of Roman civil law by the fifth and sixth centuries in Western Europe, English, and subsequently Australian, law relating to the formation of marriage has been an amalgam of ecclesiastical law and statutory provision. Under the former, and notwithstanding the religious nature of the union, marriage was a formless affair, essentially constituted by the contract of the parties. In the Report of the Committee on One Parent Families (the Finer Report) (1974) vol.2, p.86, it was said that "in order to reduce the chances of exposure to deadly sin through sexual waywardness, the Church maximised the number of ways in which a lawful union could be contracted. In the result, marriage became a formless contract requiring little more than the consent of the parties."

6.13 It appears that the requirement of two adult witnesses was introduced into Western Europe (but not England) in the sixteenth century by the Council of Trent and into England by Lord Hardwicke's Act in 1753 (as to both of which see later), but was not a necessary requirement before that time: see, for example, the decision of the House of Lords in Beamish, supra, at 308.

6.14 Although marriages were more commonly celebrated in facie ecclesiae, that is, at the church door in the presence of the priest followed by the religious service within the church, canon law recognised marriages privately or even clandestinely contracted. It distinguished between espousals of two kinds - where the couple promised that they would thereafter become husband and wife (per verba de futuro) and where they declared themselves now to be husband and wife (per verba de praesenti). In the latter case, the marriage was created by the exchange of promises whereas the former was essentially a betrothal and marriage was recognised only upon its subsequent consummation. There was no essential need for the presence or intervention of a minister of religion although that was usual, at least amongst the more educated and propertied classes. It was also strongly encouraged by the church and, if the matter came before it, the ecclesiastical court may order the parties to go through a church service.

6.15 In The Road to Divorce: England 1530-1987: Stone, (1992) 2 ed. at 53, it was described thus:-
"In the Middle Ages there were thus two culturally acceptable forms of marriage in England. There was the official mode practised by the ruling elite, which demanded a public and clerically supervised marriage, in a church, within canonical hours, after either putting up the banns three times or purchasing a licence. And there was also the popular mode of verbal contract or spousals, accompanied by folk rituals."

6.16 However, that was radically changed by the Tametsi decree of the Council of Trent (1545-1563) which provided that for the future the presence of a priest and two witnesses were essential pre-requisites to a valid marriage. As this decree was post reformation, it did not apply in England, and the ancient ecclesiastical law continued to regulate marriages in England. The only accepted exception to that is that as a result of legislation in 1653 during the Commonwealth period marriages were required to take place before a justice of the peace. However, after the Restoration that legislation was repealed, except that marriages solemnized in that form during that period were declared valid without the need for further solemnization.

6.17 The consequence was that in England, although many marriages were more regularly celebrated in the sense of being celebrated at church, private and at times clandestine marriages continued to be recognised. The general literature of the time is replete with examples of this. A number of legislative attempts were made to remedy what was described in Bromley, Family Law 8 ed. (1992) at 40 as "the social evils which resulted in such a law", including the scandals arising from "Fleet" marriages and other clandestine ceremonies, but without success until Lord Hardwicke's Marriage Act in 1753. That was directed specifically "for the better preventing of clandestine marriages" and made a number of provisions directed to that, including the publication of banns, the consent of the parents or guardians, and the registration of marriages. Its main purpose was to protect property interests: Stone: The Family, Sex and Marriage at 30-35.”

82.Harrison’s historical review [(1982) Informal Marriages: Working Paper No. 1) The Australian Institute of Family Studies] also highlights the close relationship between marriage law and property law, observing (at 1-2) that:

“Before the period of industrialisation, status depended upon an alliance of political power and economic wealth. Marriage was an important connecting link in determining status, and this in time was intrinsically tied to the importance of legitimacy, which enabled power and wealth to be passed on to an acceptable group. Conversely, for those groups who were powerless and poor marriage was irrelevant as it offered them no material advantage. So legal marriage was basically for the wealthy – a means of preserving property and inheritance rights.”

83.Her review further indicates (at 2):

“Civil marriages were not really catered for until 1836 when formalities regarding such marriages were introduced, but this was still only an optional system. Ecclesiastical jurisdiction over marriage formulation and termination can be said to have survived in England until 1857 when the Matrimonial Causes Act conferred jurisdiction to grant divorces in civil courts.

Later, the industrialising world came to accept the ‘appropriateness’ of state regulation of the formation, organisation and dissolution of marriage. The law became closely involved with social conduct, often in great detail as with the codifications of Prussia (1794) and France (1792). Furthermore, in the eighteenth and nineteenth centuries, the indissolubility of marriage and the emphasis on marriage as performing the ‘correct’ social function permeated the law. This ideology concealed the property transmitting function of marriage stressing rather its moral and religious attributes.”

84.In a related vein, the historical summary found in the Law Commission of Canada Report (supra) states:

“In the late 19th century, the law continued to enforce the Christian understanding of marriage as a lifelong, indissoluble union of one man and one woman to the exclusion of all others. Legal regulation supported a division of labour along gender lines: in urban areas at least, wives were to provide a range of domestic services in exchange for their husbands' economic support. The law worked together with other social practices to place its weight behind the Christian conception of marriage. Intimate relations within marriages were protected from state scrutiny, while sexual activity outside of marriage was heavily discouraged. Unmarried mothers and their children were penalized. Divorce was so difficult and costly to obtain that formal dissolution of marriages was not an option that could be contemplated by Canadians of ordinary means. Limitations on women's civil and political rights were seen as extensions of wives' legal and financial dependency on their husbands. We now see the nineteenth century model of marital regulation as one that was deeply implicated in structures of gender inequality.” (footnotes omitted)
85.The Law Commission’s observations about contemporary Canadian society which then follow are, we think, analogous to the Australian context, namely:

“The contemporary law of marriage is very different. Women have achieved recognition of their independent legal personalities and equal political rights. Gender-neutral laws have replaced legislation that accorded different legal rights and responsibilities to husbands and wives. Contemporary family laws recognize marriage as a partnership between equals. Sexual assault within marriage and other forms of domestic abuse can give rise to criminal prosecution. Marriages are no longer legally indissoluble: the availability of no-fault divorce makes the continuation of a marital union a matter of mutual consent. The decision whether or not to procreate and raise children is an issue of fundamental personal choice. The heavy legal and social penalties imposed on non-marital cohabitation or children born out of wedlock have been removed. The law has had to recognize that children formerly known as "illegitimate" are part of society – not recognizing their existence does not make them less so and fails to protect their basic interests.” (footnotes omitted)
86.Similarly, we would endorse as apposite to Australia, the following important perspective that the Law Commission of Canada appears to adopt:

“Borrowing the term from the history of church and state, Nancy Cott [(2000) Public Vows: A History of Marriage and the Nation, Harvard University Press, Harvard at 212.] has described the transformation in the relationship between marriage and the state in the United States as "disestablishment". Just as the state does not recognize a single, officially established church, no longer is any single, official model of adult intimate relationship supported and enforced by the state.” (emphasis added, footnote in text)

87.To conclude this necessarily brief survey, we think it plain that the social and legal institution of marriage as it pertains to Australia has undergone transformations that are referable to the environment and period in which the particular changes occurred. The concept of marriage therefore cannot, in our view, be correctly said to be one that is or ever was frozen in time. The relevance of this conclusion for the purposes of these reasons for judgment, is that on the sources we have had to identify for ourselves, there is no historical justification to support Mr Burmester’s contention that the meaning of marriage should be understood by reference to a particular point in time in the past, such as 1961. To the contrary, it lends support to the arguments of the Respondents and the Human Rights and Equal Opportunity Commission as to statutory interpretation and the decision of the trial Judge that the meaning of the term should be given its ordinary contemporary meaning in the context of the Marriage Act.

Marriage and the Constitution

88.The Commonwealth's power with respect to marriage is derived from s. 51(xxi) of the Constitution. This states:

“The Parliament shall ... have power to make laws for the peace, order, and good government of the Commonwealth with respect to: - Marriage.”
89.Marriage is undefined in the Constitution and Mr Burmester was careful to indicate that he was not seeking to advance any argument as to the meaning of the word ‘marriage’ in the Constitution. He sought to argue as to its meaning in the Marriage Act, which he said might be narrower than the word ‘marriage’ as used in the Constitution.
90.However we think it is important to consider the meaning of marriage in the Constitution as a means of throwing light upon its meaning in the Marriage Act.

91.The High Court of Australia has never finally determined the meaning of marriage as used in the Constitution. Higgins J in Attorney-General for NSW v Brewery Employees Union of NSW [1908] HCA 94; (1908) 6 CLR 469 at 610 said:

“Under the power to make laws with respect of marriage, I should say that the parliament could prescribe what unions are to be regarded as marriages.”

92.In Attorney-General (Vic) v The Commonwealth [1962] HCA 37; (1962) 107 CLR 529 at 549, McTiernan J took the view that marriage bears its own limitations and that Parliament could not enlarge its meaning. He would have confined its meaning to monogamous marriage. However in the same case, Windeyer J (at 576-77) cited the view expressed by Higgins J above and said that he considered it an unwarranted limitation to say that legislative power does not extend to marriages that differ essentially from the monogamous marriage of Christianity.

93.In four subsequent cases, Brennan J took a much narrower view. In Cormick & Cormick v Salmon [1984] HCA 79; (1984) 156 CLR 170 at 182 he held that the scope of the marriage power conferred by the Constitution was to be determined by reference to what falls within the conception of marriage in the Constitution and not by reference to what Parliament deems to be, or to be within, that conception. In Re: F ex parte F [1986] HCA 41; (1986) 161 CLR 376 at 399, his Honour considered that marriage as a subject of legislative power embraced those relationships which the law recognises as the relationships which subsist between husband, wife and the children of the marriage. He took the view that only those relationships which are already embraced within the subject are amenable to regulation by a law and act as an exercise of the marriage power. In the same case, Mason and Deane JJ (at 389) said:

“Obviously the parliament cannot extend the ambit of its own legislative powers by purporting to give to marriage an even wider meaning than that which the word bears in its constitutional context.”


94.In Fisher and Fisher [1986] HCA 41; (1986) 161 CLR 376 at 455-456, Brennan J expressed a similar view, but on this occasion said:

“The nature and incidence of the legal institution which the Constitution recognises as marriage... are ascertained not by reference to laws enacted in purported pursuance to the power but by reference to the customs of our society, especially when they are reflected in the common law, which show the content of the power as it was confirmed.”


95.Subsequently, in The Queen v L (supra) (at 392), Brennan J quoted the definition in Hyde’s case as the definition that has been followed in this country “and by this court”.

96.On the other hand, in Re : Wakim; ex parte McNally [1999] HCA 27; (1999) 198 CLR 511 at 553, McHugh J said:

“The level of abstraction for some terms of the Constitution is, however, much harder to identify than that of those set out above. Thus in 1901” marriage” was seen as meaning a voluntary union of life between one man and one woman to the exclusion of all others. If that level of abstraction were now accepted, it would deny the parliament of the Commonwealth of power to legislate for same sex marriages, although arguably marriage now means, or in the near future may mean, a voluntary union for life between two people to the exclusion of others.”

97.The views expressed by Brennan J and earlier by McTiernan J would, if they represent the law, appear to lend some support to the Attorney-General’s contention as to the narrow meaning of ‘marriage’ as used in the Marriage Act. If the Constitutional definition of marriage is to be regarded as frozen in time to the definition as it was understood in 1901, then the Marriage Act could not be construed as having a wider interpretation. Indeed if it purported to do so, it would be rendered unconstitutional or, at best, would have to be read down to that extent.


98.On the other hand, the views of Higgins, Windeyer and McHugh JJ would give it a much wider constitutional meaning. If it does have a wider meaning in the Constitution than the traditional definition, it would, we think, be strongly arguable that its meaning clearly extends to a marriage of the type under consideration in this case.


99.It seems to us that we should not in this case adopt the narrow interpretation of marriage in the Constitution expressed by McTiernan J and Brennan J. Indeed the Attorney-General did not argue that we should do so. With respect to their Honours, it seems to us that such an interpretation might well conceptually exclude Australian marriages as recognised by other religions such as Judaism and Islam from being regulated by the Parliament. In this context, we note the definition of ‘minister of religion’ in the Marriage Act and the reference to ‘authorised celebrants’ in Divisions 1 and 2 of Part IV of that Act.


100.It seems to be inconsistent with the approach of the High Court to the interpretation of other heads of Commonwealth power to place marriage in a special category, frozen in time to 1901. We therefore approach the matter on the basis that it is within the power of Parliament to regulate marriages within Australia that are outside the monogamistic Christian tradition. Indeed, the contrary was not argued on behalf of the Attorney-General.


The Nature of the Issues before the Court and whether they are Questions of Law or Questions of Fact

101.There was considerable discussion in argument both before us, and the trial Judge, as to which issues were questions of law and which were questions of fact.

102.At par 73 of his reasons, Chisholm J said, when analysing Ormrod J’s reasoning in Corbett:

“I take it to be a question of law what criteria should be applied in determining whether a person is a man or a woman for the purpose of the law of marriage, and a question of fact whether the criteria exist in a particular case.”

103.In the footnote (27) that attached to par 73, his Honour commented:

“For a more elaborate but consistent analysis, see Secretary, Department of Social Security v SRA [1993] FCA 573; (1993) 118 ALR 467. If the reasoning of the Supreme Court of Victoria in R v Cogley [1989] 799, 803-806, is read as meaning that that it is a question of fact what criteria are to be taken into account in determining sex or gender, then I respectfully disagree, and prefer the analysis in Secretary, Department of Social Security v SRA [1993] FCA 573; (1993) 118 ALR 467.”

104.His Honour ultimately held (at par 136) that:

“... in the present context the word “man” should be given its ordinary contemporary meaning. In determining that meaning, it is relevant to have regard to many things that were the subject of evidence and submissions. They include the context of the legislation, the body of case law on the meaning of “man” and similar words, the purpose of the legislation, and the current legal, social and medical environment.”

105.As noted by his Honour, comparable arguments would appear to have faced the Full Court of the Federal Court of Australia in Secretary, Department of Social Security v SRA [1993] FCA 573; (1993) 118 ALR 467 in which it was argued that the words ‘woman’ and ‘female’ and the phrase ‘opposite sex’ are ordinary English words, not technical terms. It was there submitted that since the meaning of ordinary English words and phrases is a question of fact, no question of law arose. From this footing, it was submitted that the appeal before the Full Court had to fail because an appeal from the Tribunal was only possible on a matter of law. Lockhart J said (at 480):

“Whether an Act of Parliament uses words according to their ordinary meaning in the English language or in any other sense, in particular a special scientific or technical sense, is a question of law. If it is decided that a particular word or phrase in a statute is used as an ordinary English word or phrase then it is a question of fact as to the common understanding of the word or phrase. But the crucial question for present purposes is the next question, namely, whether or not the evidence before the court reasonably admits of different conclusions as to whether certain facts or circumstances fall within the ordinary meaning of the relevant word or phrase. That is a question of law. If different conclusions are reasonably possible, it is necessary to decide which is the correct conclusion and that is a question of fact: see FCT v Broken Hill South Ltd [1941] HCA 33; (1941) 65 CLR 150; New South Wales Associated Blue-Metal Quarries Ltd v FCT [1955] HCA 23; (1956) 94 CLR 509; Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1; 29 ALR 577; FCT v Cooper [1991] FCA 164; (1991) 29 FCR 177; 99 ALR 703.”

106.His Honour held that the words in issue were ordinary English words and further that (at 480):

“...the question in the present case is whether the evidence before the tribunal reasonably admits of different considerations as to whether the facts and circumstances fall within the ordinary meaning of those words. This is a question of law and it is at the heart of the present case.”
107.On the issue of what were questions of law and what were questions of fact, Ms Wallbank, counsel for the Respondents, argued that the question as to whether the words ‘marriage’ and ‘man’ as used in the Marriage Act and the Act should be given their contemporary ordinary everyday meaning, was a question of law, citing Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 289. She also referred to the speech of Lord Reid in Cozens v Brutus [1972] UKHL 6; [1973] AC 854 at 861, where his Lordship said:


“The meaning of an ordinary word of the English language is not a question of law. The proper construction is a question of law. If the context shows that a word is used in an unusual sense the court will determine in other words what that unusual sense is. But here there is in my opinion no question of the word “insulting” being used in any unusual sense. It appears to me for reasons which I shall give later, to be intended to have its ordinary meaning. It is for the tribunal which decides the case to consider, not as law but as fact, whether in the whole circumstances the words of the statute do or do not as a matter of ordinary usage of the English language cover or apply to the facts which have been proved. If it is alleged that the tribunal has reached a wrong decision, then there can be a question of law but only of a limited character. The question would normally be whether their decision was unreasonable in the sense that no tribunal acquainted with the ordinary use of language could reasonably reach that decision.”


108.We accept this proposition. We also find Lockhart J’s approach to this issue particularly helpful.


109.Looking to the first matter identified in Lockhart J’s approach, the presently relevant proposition may be stated as follows: whether the Marriage Act uses the words ‘man’ and ‘marriage’ in a technical or in an ordinary sense is a question of law. In our view, the trial Judge was correct in characterising this issue as a question of law.


110.The definition of ‘marriage’ is essentially connected with the term ‘man’. In these circumstances, for the reasons stated by the trial Judge as amplified by our reasons that appear subsequently, we take the view that the words ‘marriage’ and ‘man’ are not technical terms and should be given their ordinary contemporary meaning in the context of the Marriage Act.


111.In our view, it thus becomes a question of fact as to what the contemporary, everyday meanings of the words ‘marriage’ and ‘man’ are respectively.


112.It then is a question of law for this court to determine whether, on the facts found by the trial Judge, it was open to him to reach the conclusion that he did, namely that at the relevant time, Kevin was a man and that the marriage was therefore valid. As it was in SRA (supra), so, too, it is that the answer to that question is “at the heart of the present case”.

The Meaning of Marriage as used in the Marriage Act 1961

(a) The Marriage Act as a Code

113.On the issue of interpretation of the Marriage Act, Mr Burmester submitted that contrary to the finding of the trial Judge, the Marriage Act operates as a code. He said that this has the effect that the words ‘marriage’ and ‘man’ and ‘woman’ should bear the meaning that they had at the time of the Act’s passage in 1961.

114.He said that this meaning was that used in the Hyde definition, meaning, as we understand it, that marriage as used in the Act should be confined to its 19th century common law meaning.

115.Mr Burmester referred to ss. 46 (1) and 69(2) of the Marriage Act and, in particular, to the provisions of those sections that require a marriage celebrant or marriage officer to state that marriage, according to the law of Australia, is “the union of a man and woman to the exclusion of all others, voluntarily entered into for life”. In this regard he also referred to s. 43(a) of the Family Law Act where the same words are used, and to the well known definition of marriage by Lord Penzance in Hyde v Hyde and Woodmansee (1866) LR 1 P&D 130 from which this definition is drawn.

116.He said it followed from this that, as at 1961 and at the time of the passage of the Act, the Parliament was making provision in relation to the traditional union in marriage of a man and woman only, having regard to the long established and understood meaning of those terms in that context.

117.We do not think that ss. 46 (1) and 69(2) of the Marriage Act and s. 43(a) of the Family Law Act have the effect contended for by Mr Burmester.

118.As pointed out by Butler-Sloss P and Robert Walker LJ in Bellinger (supra), the existence of modern divorce laws negates the proposition that marriage is now to be regarded as a union for life. Further, we agree with the submission of Ms Wallbank for the Respondents that there is nothing to suggest that Lord Penzance in Hyde (supra), from which the words used in those sections are drawn, intended the words ‘marriage’ and ‘man’ to have anything other than their contemporary and ordinary meaning.

119.Finally, the words used in the sections to which we have referred do not have the effect of defining ‘marriage’ and ‘man’. Those words are left undefined. The words of the sections do no more than provide an indication that Parliament may have intended that such a meaning was already encompassed by the legislation.

120.It was submitted on behalf of the Attorney-General that the evidence relied upon by the Respondents confirmed that in 1961 it would not have been contemplated that the definition of ‘man’ in the Marriage Act would have included post-operative transsexual people. Mr Burmester therefore argued that Parliament could not have contemplated that the marriage of a woman to a female-to-male post-operative transsexual person was a marriage of a woman and a man. In our view this submission begs the question. It may be that Parliament would not have had this in contemplation in 1961 (although we are not satisfied as to this), but the question is whether the Parliament intended that the meaning of the words should be confined to their meaning in 1961.

121.We will turn shortly to deal with his argument as to the particular status of marriage, but for this purpose Mr Burmester was relying on the comments of Brennan J (as he then was) in Corporate Affairs Commission of NSW v Yuill [1991] HCA 28; (1991) 172 CLR 319 at 323 as to codes.

122.On this issue, Mr Basten argued that Yuill (supra) was not authority for the general rule of construction for which the Attorney-General contended. He pointed out that the principle identified by Brennan J in Yuill (supra) at 323 was as follows:

“And so, the answer to our first question is that the code should be construed in the light of the law as it stood when the code came into force ... unless there be something in the code which is inconsistent with the operation that would thus attribute to the code.”

123.Mr Basten argued that that proposition might be accepted because it reflects one of a number of maxims which might be of assistance in relevant circumstances. However, he commented that no other member of the Court applied that principle in Yuill’s case, Brennan J being the only member of the Court who did give effect to the code principle in arriving at his decision in that case. We adopt as correct the argument of Mr Basten that that particular case has no application to the present circumstances. In a sense it is a circular argument advanced on behalf of the Attorney-General because if the views advanced by Brennan J were to have application, it would first be necessary to construe the Marriage Act as a code.

124.Ms Wallbank for the Respondents argued that the proposition that the Marriage Act constituted a code should be rejected in circumstances where Parliament had chosen not to define the words ‘man’ or ‘marriage’ in it.

125.Mr Basten supported her submissions, saying that it was necessary to return to the fact that there was no definition of marriage in the Marriage Act, and thus there appears to be no basis in that Act for imposing constraints on who may be identified as a man or a woman for the purpose of it.

126.We are unable to accept the argument on behalf of the Attorney-General that the Marriage Act constitutes a code. The fact that ‘marriage’ is undefined, as are the words ‘man’ and ‘woman’, in our view negates any such Parliamentary intention. If Parliament had wished to prescribe a code it seems to us to be inconceivable that it would not have defined these terms.

127.We are strengthened in this view by reference to the Parliamentary debates relating to the Marriage Act to which Mr Basten, counsel for the Human Rights and Equal Opportunity Commission, referred and, in particular, to the fact that an amendment seeking to define marriage in accordance with the Hyde definition was defeated in the Senate. It is of interest to note that the Minister representing the Attorney-General in the Senate commented, in opposing the amendment, that it was for the Courts to define ‘marriage’: Senate Hansard, 18 April 1961, pp 542-555.

(b) Should the meaning of marriage be confined to its 1961 or earlier meaning or should it be given its modern contemporary meaning?

128.Mr Burmester argued that in an area of the law like marriage it is not appropriate for a court to give an interpretation that does not reflect the clear understanding of Parliament at the time of the enactment of the original legislation.

129.He said that as Parliament had intended marriage in the Marriage Act to be confined to its traditional meaning, then the principles expressed by Lord Slynn in Fitzpatrick v Sterling Housing Association Ltd [2001] AC 27 and the Court in Joyce v Grimshaw [2001] FCA 52; (2000) 105 FCR 232 at 244-5 were applicable.

130.This submission assumes an intention on the part of Parliament that we do not think counsel for the Attorney-General has been able to demonstrate.

131.Lord Slynn in Fitzpatrick v Sterling Housing Association Ltd (supra) (at 33) said:
"It has been suggested that for your Lordships to decide this appeal in favour of the appellant would be to usurp the function of Parliament. It is trite that that is something the courts must not do. When considering social issues in particular judges must not substitute their own views to fill gaps. They must consider whether the new facts `fall within the parliamentary intention' (see Royal College of Nursing of the UK v Department of Health and Social Security [1980] UKHL 10; [1981] 1 All E.R. 545 at page 565; [1981] A.C.800 at page 822 per Lord Wilberforce). Thus in the present context if, for example, it was explicit or clear that Parliament intended the word `family' to have a narrow meaning for all time, it would be a court's duty to give effect to it whatever changes in social attitudes a court might think ought to be reflected in the legislation. Similarly, if it were explicit or clear that the word must be given a very wide meaning so as to cover relationships for which a court, conscious of the traditional views of society might disapprove, the court's duty would be to give effect to it. It is, however, for the court in the first place to interpret each phrase in its statutory context. To do so is not to usurp Parliament's function; not to do so would be to abdicate the judicial function. If Parliament takes the view that the result is not what is wanted it will change the legislation.”

132.It is of interest to note that Lord Slynn, having said this, held that despite the fact that the Appellant, who was the same sex partner of the deceased, would not have been regarded as a member of the deceased’s family in 1920 when the relevant Act was passed, he should be so regarded in 2001. He did so upon the basis that Parliament had not intended to confine the expression ‘family’ to its 1920 meaning.

133.It seems to us that this passage does no more than make it clear that if it appears from the context that Parliament intended a word to be confined to its meaning, or to have some special or technical meaning at the time that an Act is passed, then the courts must respect that view and not substitute their own views. If the contrary is the case, then the courts must determine the meaning of the word in its contemporary sense. Mr Burmester’s argument depends upon an unsubstantiated assertion as to the intention of Parliament.

134.Mr Burmester further argued that where the natural meaning of the words ‘man’ and ‘woman’ are clear, the will of the Parliament must be respected, even where the Court may perceive that this would amount to an injustice. This is, of course correct, but it again begs the question before us in this appeal.

135.He further submitted that Chisholm J’s approach of construing the meaning of ‘man’ based on a desire to achieve “the humane and practical trend to accept the reality of gender reassignment” (at par 288) departs from the proper approach of construing the Marriage Act.

136.Whether it does so or not is dependent, at least in part, upon whether the meaning of ‘marriage’ and hence ‘man’ in the Marriage Act’ is so clear that such an approach would be impermissible. If it extends to its contemporary, normal and everyday meaning we think that this is obviously a relevant consideration.

137.We note that the trial Judge defined marriage in contemporary terms. In doing so, he applied what Bennion (1997) Statutory Interpretation – A Code (3rd Ed) (at 686) has described as a “presumption that updating construction be given”. His Honour rejected the argument based on Yuill (supra) that there was a general rule of construction that ordinary words should be given the meaning that they had at the time the legislation was passed.

138.We agree with his Honour’s conclusion for the reasons given by him and the views that we have expressed above.

(c) The Special Status of Marriage as a Social Institution having its Origins in Ancient Christian Law

139.Mr Burmester next argued that marriage is a social institution having its origins in ancient Christian law and is intrinsically connected with procreation.

140.In support of this argument he cited: Maynard v Hill 125 U.S. 190 (1888) at 205 and 211; Egan v Canada [1995] 2 SCR 513 at 536 per La Forest J (dissenting); Layland v Ontario (Consumer and Commercial Relations) and others (1993) 104 DLR (4th) 214 at 222-223 per Greer J; Miron v Trudel [1995] 2 SCR 418 at 448 and Quilter v Attorney-General [1998] 1 NZLR 523.

141.He argued that because marriage confers a status and is an institution that provides the foundation of the family and society, there are special considerations associated with it to which regard must be had in construing the meaning of the words ‘man’ and ‘woman’ in relation to marriage.

142.Mr Basten was critical of the Appellant’s reliance upon the judgment of La For