and ain't i a woman?: Gender and the 'sanctity of marriage'
"Kevin" and "Jennifer" (names assigned to them by the Family Court) are a perfectly ordinary couple in their mid-30s, except that Kevin was born a female. In 1965, Kevin started life as a girl, but he was convinced he was a boy. From 1994, Kevin presented as a man. He started hormone treatment and had sexual reassignment surgery. He met Jennifer in 1996 and a year later they were living together.
In 1998, Kevin was issued with a new birth certificate showing his sex as male. Then in 1999, the pair were issued with a marriage certificate by a marriage celebrant. They were accepted into the IVF program as a heterosexual couple, and now have one child and another on the way.
When they approached the federal government to seek confirmation that their marriage was valid in the eyes of the law, the federal Attorney-General Daryl Williams said no. According to Williams' interpretation, Kevin and Jennifer's marriage was not legally recognised because the Marriage Act 1961 says a person's identity is fixed at birth which meant Kevin was considered a woman.
The couple decided to challenge the Williams' ruling in the Family Court. Their case included signed affidavits from 39 friends, family and workmates. The judge hearing the case, Justice Richard Chisholm, was particularly struck by this evidence, commenting: "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 that he is not... They are describing what they see in Kevin. And what they see is a man."
Kevin and Jennifer's lawyer also presented medical and scientific evidence from a range of experts which presented the case that a human being's sexual identity is not something which can be judged according to genitalia alone.
In challenging the validity of Kevin and Jennifer's marriage, the attorney-general's office relied on the 1970 Corbett decision from England, which found that a male-to-female transsexual, April Ashley, despite living most of her life as a woman, could not legally marry because she had been born a man. It established in law that, for the purposes of marriage, a person's sex was determined at the date of a person's birth and could never be altered.
On October 12 last year, the Family Court found that Kevin and Jennifer's marriage was legal for the purposes of the Marriage Act. Justice Chisholm, in his ruling, stated that there was no persuasive reason to assume, for the purposes of marriage, that "if a person is a male or female at birth, the person must be a male or female at the date of marriage". It was a landmark decision, because it found that gender was influenced by factors other than genitalia, including brain sex and day-to-day lived sex.
The government, determined not to allow such a decision to stand, has lodged an appeal. A hearing is scheduled for February 18. Lawyers for the attorney-general will argue that the Marriage Act clearly states a husband should be male, and that genitalia and chromosomal make-up should be foremost in deciding future cases.
Why does the Howard government have such an obsession with making this couple's lives a misery? After all, they just want to live an ordinary married life together as a legally recognised couple, bringing up their children.
Many have questioned in whose interests this appeal is being made. Democrats Senator Brian Greig stated in a January 16 press release that the government's attempt to "invalidate this decision is cruel and heartless, and serves no possible public interest".
The Howard government is opposed to relationships that challenge or undermine the rigidly defined gender roles which are part of the traditional heterosexual family structure.
It is true, as Greig identifies, that people are more willing to accept "same-sex couples, transgendered citizens and alternative family structures", but this has happened despite efforts to ideologically and legally undermine these sorts of alternatives.
The family institution, specifically the gender-defined roles of wife, child-carer, cook, cleaner and housekeeper which women are assigned, plays a central role in maintaining the structures of capitalist society. This role that women are convinced to perform — free of charge — is one of the bed-rocks of the current social system. Denying transgender people as well as gay men and lesbians the right to legally recognised marriage helps to reinforce the notion that non-heterosexual relationships are socially deviant.
In challenging the notion that gender is anything other than predetermined from birth, transgender people challenge notions of fixed and unchanging gender and sexuality.
It's not a huge step to move from a transgender relationship being recognised in the eyes of the law to gay and lesbian relationships being given equal moral legitimacy. And that's something Darryl Williams and other social conservatives will work very hard to stop.
BY SARAH STEPHEN
[The author is a member of the Democratic Socialist Party.]
From Green Left Weekly, February 13, 2002.
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