Law: Family Court redefines manby Richard EganNews Weekly
, November 3, 2001
Doing a fine impersonation of Humpty Dumpty being the master, the Honourable Justice Richard Chisholm, in a Family Court judgement delivered on October 11, has decided that the word "man" as used in the Marriage Act 1961 no longer has its former straightforward meaning of an adult human being of the male sex, but includes a range of persons who may be biological females, as indicated by the chromosomes, gonads and genitals they were born with.
"When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean - neither more nor less."
"The question is," said Alice, "whether you can make words mean so many different things."
"The question is," said Humpty Dumpty, "which is to be master - that's all."
- Lewis Carroll, Through the Looking Glass
Justice Chisholm was given the opportunity to exercise his judicial mastery over the meaning of words by the case between Kevin and Jennifer and the Attorney-General. In this strange case, only the Federal Attorney-General Daryl Williams appears under his true name, and only he and "Jennifer" under their true sex. "Kevin" was born in 1965 and given a birth certificate recording her sex as female - quite naturally so, as she had (and still has) female (XX) chromosomes and, until she underwent so-called "sex-reassignment" surgery, had quite normal female genitalia and gonads.
However, apparently from a young age, she thought
of herself as a boy, and acted and dressed as a boy. At the age of 30 she began taking male hormones, had her breasts reduced by liposuction, and had a hysterectomy and bilateral oophorectomy (removal of both ovaries). She decided not to undergo further surgery to construct an artificial "penis" and "testes". She entered into a relationship with Jennifer, who states that it was obvious
to her that "Kevin" was a man.
"Kevin" and Jennifer were accepted into an IVF program in Sydney by doctors who assessed them as a heterosexual couple infertile because of absent sperm production! Jennifer, after IVF with anonymous semen donation, gave birth to a boy. "Kevin" has been recorded as the "father" on the birth certificate.
On August 21 1999, "Kevin" and Jennifer went through a form of solemnisation of marriage before an authorised marriage celebrant who issued a Certificate of Marriage. In the case before Justice Chisholm, they were seeking a declaration of the validity of that marriage. The Attorney-General intervened to oppose such a declaration.
Section 46 (1) of the Marriage Act 1961 refers to marriage as "the voluntary union for life of one man and one woman, to the exclusion of all others". Section 43 (a) of the Family Law Act 1975 obliges the Family Court to preserve and protect the institution of marriage so defined.
The Attorney-General's submissions relied significantly on the 1971 English decision in Corbett
which, determined 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. [So-called "sex-reassignment surgery"], therefore, cannot affect [a person's] true sex".
bridles at this commonsense realism, suggesting that the Corbett
test represents an "essentialist" view that identifies sex as a mysterious essence revealed by gonads, genitals and chromosomes.
Chisholm is, in philosophical terms, a nominalist. He holds the doctrine that universals or general ideas (e.g. "man") are mere names. They don't correspond to any fixed reality. Therefore, Chisholm, like Humpty Dumpty, feels a masterful duty to declare the word "man" to encompass, among other things, a post-operative transsexual such as "Kevin".Wide-ranging
If we could be sure that Justice Chisholm's decision only applied to post-operative transsexuals who chose to "marry" (a very limited class), perhaps while finding it distasteful, foolish and just plain wrong, we could afford to ignore it. But in the decisive passage of his judgement he states:
"To determine a person's sex for the purpose of the law of marriage, all relevant matters need to be considered. I do not seek to state a complete list, or suggest that any factors necessarily have more importance than others.
"However the relevant matters include, in my opinion, the person's biological and physical characteristics at birth (including gonads, genitals and chromosomes); the person's life experiences, including the sex in which he or she is brought up and the person's attitude to it; the person's self-perception as a man or woman; the extent to which the person has functioned in society as a man or a woman; any hormonal, surgical or other medical sex reassignment treatments the person has undergone, and the consequences of such treatment; and the person's biological, psychological and physical characteristics at the time of the marriage, including (if they can be identified) any biological features of the person's brain that are associated with a particular sex."
Justice Chisholm has set the scene for a progression of judicial decisions - which like the word game in which by changing one letter at a time you can turn love to hate (LOVE-LAVE-LATE-HATE) - the definition of marriage could be transformed beyond all recognition, to include homosexual partnerships and (why should the word "one", as in one
man and one
woman, mean numerically
one?) group marriages.Curious timing
The timing of the Chisholm judgment is curious. Having heard the case in May 2001 he chose to deliver his judgment on October 11 which means the month-long appeal period expires on November 12 immediately after the Federal election.
With the Government in caretaker mode it is not clear whether the Attorney-General will lodge an appeal or whether he will seek leave from the Court to have the appeal period extended until after the results of the Federal election are determined.
So far, the push to lower the status of marriage has involved efforts at State and Federal levels to give other relationships, de facto and homosexual, equivalent benefits in law.
This latest judicial development, like the decision of the Hawaiian courts to recognise the right of homosexuals to marry, will, unless overturned on appeal, require the Federal Parliament to pass a Defence of Marriage Act to re-establish as the law of Australia that marriage is only between one biological man and one biological woman.
The willingness of Mr Howard and Mr Beazley to guarantee support for such a law is a critical question for electors to have answered.