The Australian Democrats have called on Attorney-General Daryl Williams to explain why the Commonwealth is appealing a Family Court ruling that recognised the rights of a transgendered person to legally marry his female partner.
Democrats Law and Justice spokesperson Senator Brian Greig said that the Commonwealth’s challenge to the October 2001 decision by Justice Chisolm served no purpose.
What possible purpose is served by ensuring that this relationship has no legal status, leaving both these partners and their child in administrative wilderness without the same rights and responsibilities as other married or de facto couples? Greig questioned.
Community standards now generally recognise and accept same-sex couples, transgendered citizens and alternative family structures, and the Government’s action shows a distinct lack of understanding of modern society, as well as disregarding the social dilemma and isolation faced by transgendered people.
The husband, known as Kevin was born female but testified in the original hearing that for as long as he could remember, he had perceived himself to be male, had worn boys clothes and played with boys toys. From 1994, Kevin presented as a male, started hormone treatment in 1995, in 1998 had sexual reassignment surgery, but has not had surgery to construct male genitalia. Kevin met Jennifer in 1996 and a year later they were living in a de facto relationship. In 1998 Kevin was issued with a new birth certificate showing his sex as male, and in 1999 a marriage celebrant issued the pair with a Certificate of Marriage. The couple have a child conceived under the IVF program and have been successful in another IVF application.
Justice Chisholm concluded in his judgment 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 the marriage.
They [family and friends] do not pretend that he is a man, while believing he is not, he stated. They are describing what they see in -˜Kevin’. And what they see is a man.
In a statement released to the Star, the Attorney-General’s Department said the grounds of appeal include, among other points, that Justice Chisholm 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, and that he erred in holding that the ordinary meaning of man for the purpose of the Marriage Act includes a post-operative female-to-male transsexual.
Solicitor for Kevin and Jennifer, Rachel Wallbank, told the Star that the government was entitled to bring the appeal to court. How-ever, I am confident that Justice Chisholm’s decision is worthy and one which will be upheld with even more authority -“ on appeal -“ in the Full Court judgment.
Anthony Schembri, co-convenor of the Gay & Lesbian Rights Lobby, told the Star that this was yet another example of transgendered people being marginalised. Yet again, as we’ve seen before, the federal government is acting to change laws that were amended by a state government and we draw the comparison with not just how transgender relationships are not accepted, but how lesbian and gay relationships are also not recognised by the [federal] government, he said.
Senator Greig stated that federal relationship laws now lag behind most other states and he hopes federal members of parliament will support the Democrats’ Sexuality Discrimination And Gender Status Bill which has been on notice in the Senate since 1995. This bill would ensure that all people, including people with a sexual or gender identity different from the majority, have a right to equality under the law.