August 14th 2004

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Articles from this issue:

COVER STORY: Foreign Minister launches Paul Gray's new book on Islam

EDITORIAL: Australia and the Timor Gap Treaty

CANBERRA OBSERVED: Latham loses lustre as poll looms


RURAL POLICY: Facing up to the farm income crisis

UNITED STATES: Transsexual case and marriage law

FOREIGN AFFAIRS: Pakistan and the Islamic N-bomb

POPULATION: 'Gender equality' partly to blame for fertility decline, says UN official

DOCUMENTARY: 'My Foetus' prompts abortion re-think

OPINION: US law professor blasts US court on gay marriage

OPINION: Distributism and capitalism

STRAWS IN THE WIND : Part-timers: pros and cons / Family Law changes / Timor's Labor pain

Latham, Iraq and free trade deal (letter)

Fishermen protest in marginal seats (letter)

Ethanol stand challenged (letter)

BOOKS: The Red Millionaire: Willi Münzenberg, by Sean McMeekin

BOOKS: GETTING ON TRACK: A Business Plan for Australia

BOOKS: Just War Against Terror, by Jean Bethke Elshtain

BOOKS: The Mystery of Olga Chekhova, by Anthony Beevor

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Transsexual case and marriage law

by Richard Egan

News Weekly, August 14, 2004
A Florida transsexual, who filed for divorce, has been denied custody of the children his wife had from other fathers, reports Richard Egan.

A three-judge panel of Florida's Second District Court of Appeal, on July 23, handed down this significant decision in the case of Linda Kantaras v Michael Kantaras which has implications for marriage law in Australia.

Michael Kantaras was born Margo Kantaras in 1959. Margo underwent so-called "sex reassignment" surgery in 1987, having a total hysterectomy and double mastectomy. Margo had earlier changed her name to Michael.

In 1989, "Michael" married Linda, Michael representing in his application for a marriage licence that he was a man. Linda already had a son to a former boyfriend.

After the marriage Michael adopted this son, representing himself as Linda's husband. In 1992 she underwent artificial insemination with Michael's brother's sperm and gave birth to a daughter.

Divorce case

In 1998 Michael filed a petition for divorce and sought to obtain custody of both children.

Linda counter-petitioned for an annulment on the grounds that the marriage was void ab initio (from the beginning) because it violated Florida law banning same-sex marriage.

On February 21, 2003, Judge Gerard O'Brien of the Sixth Circuit Court of Florida ruled in Michael's favour, determining that he was legally male at the time of the marriage and that his marriage to Linda was valid. The judge also awarded him primary residential care of the two children.

Judge O'Brien had deliberately withheld his judgment until the Australian case of Kevin and Jennifer was decided by the Full Bench of the Family Court of Australia, presided over by Chief Justice Alasdair Nicholson.

Although Judge O'Brien's ruling was handed down just hours after the Australian decision, it contains extensive references to this decision, suggesting collusion between these two courts in Florida and Australia in formulating their decisions.

The justices of Florida's Second District Court of Appeal note that "the trial court relied heavily on the approach taken by an Australian family court in re Kevin which the trial court believed 'correctly states the law in modern society's approach to transsexualism'."

The justices firmly stated their disagreement with this conclusion. The key issue in the Kantaras case "is whether, as a matter of law, the Florida statutes governing marriage authorise a post-operative transsexual to marry in the reassigned sex. We conclude they do not ... the common meanings of male and female, as those terms are used statutorily, refer to immutable traits determined at birth."

The justices cited earlier cases from Kansas, Ohio, Texas and New York. The Kansas Supreme Court in a 2002 case stated:

"The words 'sex,' 'male,' and 'female' in everyday understanding do not encompass transsexuals. The plain, ordinary meaning of 'persons of the opposite sex' contemplates a biological man and a biological woman and not persons who are experiencing gender dysphoria.

"A male-to-female post-operative transsexual does not fit the definition of a female. The male organs have been removed, but the ability to 'produce ova and bear offspring' does not and never did exist.

"There is no womb, cervix, or ovaries, nor is there any change in his chromosomes . . . the transsexual still 'inhabits . . . a male body in all aspects other than what the physicians have supplied'."

Public policy

The New York Appellant Division in a 1974 case noted the "public policy that the marriage relationship exists for the purpose of begetting offspring" and observed that "assuming, as urged, that the defendant was a male entrapped in the body of a female, the record does not show that the entrapped male successfully escaped to enable the defendant to perform male functions in a marriage.

"Attempted sex reassignment by mastectomy, hysterectomy, and androgenous hormonal therapy, has not achieved that result."

The Florida justices importantly affirmed that "whether advances in medical science support a change in the meaning commonly attributed to the terms male and female as they are used in the Florida marriage statutes is a question that raises issues of public policy that should be addressed by the legislature.

"Thus, the question of whether a post-operative transsexual is authorised to marry a member of their birth sex is a matter for the Florida legislature and not the Florida courts to decide."

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