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RE Kevin and the right of transsexual persons to marry in Australia

journal contribution
posted on 2003-01-01, 00:00 authored by J McConvill, Eithne Mary Mills
This article considers the decision of the Family Court of Australia in Re Kevin (Validity of Marriage of a Transsexual) [2001] FamCA 1074, which was upheld by the Full Court of the Family Court of Australia in February 2003. Re Kevin was the first case in Australia to deal directly with the question of whether a transsexual person could marry under Australian law. In the past, Australia had adhered to the judgement of Ormrod J in Corbett v Corbett [1971] P. 83, which set the benchmark for what is ‘male’ and what is ‘female’ under the common law. Prior to Re Kevin the question of what is a man and what is a woman for the purposes of marriage in Australia mirrored the strict biological test established in Corbett. In other words, the Australian courts relied upon biological factors, as espoused by Ormrod J, when determining a person's true sex. In Re Kevin, Chisholm J examined in detail what it is to be a man or woman, but unlike Ormrod J considered ‘brain sex’ to have a significant impact on a person's view of their own innate sexual identity. The Full Court of the Family Court agreed with the powerful and well-reasoned judgement of Chisholm J at first instance.

History

Journal

International journal of law, policy and the family

Volume

17

Issue

3

Pagination

251 - 274

Publisher

Oxford University Press

Location

Oxford, England

ISSN

1360-9939

eISSN

1464-3707

Language

eng

Publication classification

C1 Refereed article in a scholarly journal

Copyright notice

2003, Oxford University Press

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