Legal aspects of transsexualism

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Transsexual people are those who establish a permanent identity with a gender other than the biological sex at which they were assigned at birth. As most legal jurisdictions have at least some recognition of the two traditional genders at the exclusion of other categories, this raises many legal issues and aspects of transsexualism. Most of these issues tend to be located in what is generally considered family law, especially the issue of marriage, but also things such as the ability of a transgendered person to benefit from a partner's insurance or social security.

The degree of legal recognition provided to transsexualism varies widely throughout the world. Many countries now extend legal recognition to sex reassignment by permitting a change of gender on the birth certificate. Many transsexual people have their bodies permanently changed by surgical means or semi-permanently changed by hormonal means (see Sex reassignment therapy). In many countries, some of these modifications are required for legal recognition. In a few, the legal aspects are directly tied to health care; i.e. the same bodies or doctors decide whether a person can go ahead, and the subsequent processes automatically incorporate both matters.

The amount to which non-transsexual transgender people can benefit from the legal recognition given to transsexual people varies. In some countries, an explicit medical diagnosis of transsexualism is (at least formally) necessary. In others, a diagnosis of gender identity disorder, or simply the fact that one has established a different gender role, can be sufficient for some or all of the legal recognition available.


Several countries in Europe give transsexual people the right to at least change their first name. Most also provide a way of changing birth certificates. Several European countries recognize the right of transsexuals to marry in their post-operative sex. France, Germany, Italy, the Netherlands, Poland, Portugal, Romania, Denmark, Finland, Sweden and the United Kingdom all recognize this right.

The situation is different in some eastern European countries. For instance, countries like the Czech Republic have laws governing sex change or, at least, give people the right to change their name and legal documents (Latvia). Other countries like Lithuania do not have any working legislation governing sex change.


The "Transsexuellengesetz"

Since 1980, Germany has a law that regulates the change of first names and legal gender. It is called "Gesetz über die Änderung der Vornamen und die Feststellung der Geschlechtszugehörigkeit in besonderen Fällen" (Law about the change of first name and determination of gender identity in special cases (Transsexual law - TSG)).

In Germany, as in many countries whose law is at least partly based on the Napoleonic Code, the first name has to be gender-specific. One can either obtain a change of name alone, and proceed later with a change of legal gender, if possible or desired, or obtain both in a single procedure.

For both, two official expert opinions have to be presented to a court stating that:

  • a medical diagnosis of transsexualism has been made,
  • the person has felt the need of living "according to their desires" for at least three years, and
  • it is "unlikely" that the "feeling of belonging to the other sex/gender" is going to change any more. (German does not differentiate between sex and gender).

The change of name can and almost certainly will be revoked if the person marries and then fathers or gives birth to a child that was conceived after the name change became valid.

For the change of legal gender, it is also required that the person

  • is permanently infertile, and
  • "has had surgery through which their outer sexual characteristics are changed to a significant approximation to the appearance of the other sex/gender".

Originally, the law stated that neither change of name nor legal gender were available for people under 25 years of age. This condition has been declared void by the courts, and today there is no minimum age. Until 2008, it also stated that the person had to be unmarried.

The TSG applies only to German citizens; there are exceptions only for non-German citizens with very specific legal status, such as stateless people living legally in Germany.

Unless a person can show that they do not have the money to pay for the procedure, the applicant has to pay the costs for the procedure. The costs for the court itself are about 60-70 Euros, but the expert opinions can range in cost from 0 Euros to several thousand Euros– on average around 600 to 1200 Euros.

Several court decisions have further specified several matters. For example, a person with only a name change has the right to be called "Herr" or "Frau" (Mr. or Mrs.) according to their first name, not their legal gender; similarly, documents have to be issued reflecting the actual gender role, not legal gender. Job references, certifications and similar from the time before the change of name have to be reissued with the new name, so effectively there is no way for a new employer to learn about the change of name and/or gender. Also, people with only a name change do not have to divulge their legal gender to employers even if the gender of the employee usually matters in a particular job. (For example a medical assistant to a gynaecologist.)

Criticism of the "Transsexuellengesetz"

In the last couple of years, the TSG has come under intense criticism not only from the trans community, but also some medical caregivers. This criticism is directed against both the way the law is applied, especially concerning the way "expert opinions" are done, and the wording of the law itself.

Particularly the following parts of the TSG are criticised:

  • The mandatory diagnosis of transsexualism, instead of "gender identity disorder" or simply granting at least name changes on the basis of individual need.
  • The fact that (almost) only German citizens can obtain papers reflecting the gender role they live in, resulting in significant problems for people living in Germany who are not German citizens.
  • The need for "expert opinions", see below.
  • The proceedings can take a very long time, especially because of the time that is often needed for the expert opinions, but also because courts are often overloaded. Half a year is a rather fast decision, one year or more is not unusual.
  • People who have only changed their name have a questionable legal status. While most of the time this is perfectly sufficient, there are several problems in specific situations. A person with only a name change ...
    • who is in hospital or prison has no right to be accommodated according to the gender role they live in, but can be housed according to their legal gender;
    • can enter a registered partnership with a person of the same legal gender (since 2001), but can not marry or enter any kind of legally secured partnership with a person of the opposite legal gender;
    • risks their name change when fathering or giving birth to a child.
  • The conditions for a change of legal gender are often considered too high:
    • The requirement to be unmarried means that people who are married and wish to remain so can not obtain a change of legal gender. (How a legal change of gender would affect a registered partnership is currently unknown, since registered partnerships only became available since 2001.)
    • The requirement to be "permanently infertile" is seen as interfering with the right to physical integrity, especially since a simple sterilization is usually not seen as sufficient, but castration is required instead.
    • The requirement for surgery, which is interpreted essentially as a requirement for genital reassignment surgery, is seen as interfering with the right to physical integrity. This is always applied to trans women, and trans men are only currently exempt because the results are seen as unacceptable. This exemption is regularly challenged by judges.

As has already been mentioned, the "expert opinions" can be very expensive. Some "experts" wish to test everything they can think of, including intelligence and/or every psychiatric disorder they can think of. Also, the sexual history of the clients is of particular interest to some. This results in assessments which are lengthy (several months are not unusual), costly and humiliating.

Many "experts" also consider only those people as transsexual who live in a gender role that the expert considers "appropriate"– resulting in problems for example for trans women who sometimes do not wear skirts or trans men with hair that is considered "too long". Especially lesbian trans women and gay trans men suffer from problems with these "experts".

Since the courts usually impose the "experts" on the applicants (which is legally at least questionable) there is no way to escape these often expensive, lengthy and humiliating assessments. Not every expert who is asked for an expert opinion however will work according such questionable "guidelines". Since there are many regional differences, there is a certain amount of "trans-tourism"; people (at least officially) moving to the circuit of courts who are known to appoint "liberal" or "reasonable" experts. However, the general problems with "expert opinions" have led to demands to abandon these completely or at least to lower the required number to one and to lower the formal requirement for it. Many of this criticism applies also to "expert opinions", "letters of recommendation" or similar papers regarding medical procedures. The same problems with "experts" are also experienced in all other countries.

In July 2008, a court in Karlsruhe ruled that a transsexual woman who transitioned to female after having been married to a woman for more than 50 years could remain married to her wife and change her legal gender to female. It gave the legislature one year to effect the necessary change in the relevant law. (La Presse)

Legal aspects of medical treatment

Based on several court decisions, some dating back to the late 1970s, medical treatment of transsexualism (and in fact all gender identity disorders) has to be paid by health insurance, which is mandatory in Germany. Like all treatments that have to be paid for by health insurance, "medical necessity" has to be shown in each particular case. In some cases, this can lead to lengthy procedures, although this is not always the case. However, the less "medical necessity" can be shown, the more difficult it gets to get coverage. This is particularly true for surgeries like facial feminization surgery,, but also occasionally for more basic matters as the construction of a neo-clitoris.

The regulation of coverage of medical costs is formally completely unrelated to the TSG; in practice, there can be overlaps, for example with expert opinions.


In the Republic of Ireland, it is not possible for a transsexual person to alter their birth certificate. A case was taken in the High Court by Dr. Lydia Foy in 2002 which saw her case being turned down as a birth certificate was deemed to be an historical document[1]. It is currently possible for anyone to undertake a change of name either through common usage or through a deed of change of name. Dr. Foy has taken new proceedings to the High Court relying on the decisions of the European Court of Human Rights in the Goodwin and 'I' cases. Her application was heard between 17 and 26 April 2007 and judgment was reserved. Judgment was given in the High Court on 19 October 2007. The Judge held that the Irish state had failed to respect Dr. Foy's rights under Article 8 of the European Convention on Human Rights by not providing any mechanism for her to obtain a new birth certificate in her female gender. He indicated that he would grant a declaration that Irish law in this area was incompatible with the Convention. He also said he would have found that her right to marry under Article 12 of the Convention had been infringed as well if that had been relevant. On 14 February 2008 the Judge finally granted a declaration that sections of the Civil Registration Act, 2004 were incompatible with Article 8 of the Convention. This was the first declaration of incompatibility made under the European Convention of Human Rights Act passed in 2003. The written judgment is so far only available in an uncorrected form. The Government has two months within which to appeal to the Supreme Court. If they do not, the Taoiseach (Prime Minister) must report to the Oireachtas (Parliament) the making of the declaration and will have to indicate what measures his Government proposes to take to comply with Ireland's obligations under the European Convention. In April 2008 the Government indicated that it would be appealing the High Court ruling to the Supreme Court.

In Northern Ireland, the Gender Recognition Act 2004 of the United Kingdom applies, so a name and gender change on one's birth certificate is now possible.


In Lithuania, it is not possible for transsexual people to change gender-related records. Even the ability to change names is limited: it is possible to change from a gender-specific name to a gender-neutral name, but only for unmarried people. Although the basic right to change sex is described in Lithuanian civil code article 2.27, this article is not considered in force because no specific law governing sex change exists.


In the Netherlands one can go to court and request a change in gender and birth name on ones birth certificate. However, one has to prove (surgical) sterility, and physical adaptation to the new gender as much as (medically) possible. In practice, trans women (Male-to-female transgender people) have to prove hormone treatment and genital surgery. Trans men (Female-to-male transgender people) have to prove hormone treatment, chest surgery and a hysterectomy, though no genital surgery. With this modification the records of the local municipality are updated, and one can obtain a passport and driver's license with the new name and gender. Moreover, a child can then request an update of the gender indication of their parents to allow a change to their records.


In Polish law there is not any specific institution or act considering gender change, although right to change one's legal gender is generally recognised. Article 189 of Polish Civil Procedure Code allows an individual to ask court to determine his right or legal relations in many contexts, including gender and civil registry records. On the grounds of this provision Polish courts often approve legal claims for modyfing registry records, name and all other public documents. It is practically needed that court should be provided with medical evidences of one's transsexuality.

The first milestone sentence in the case of gender shifting was given by Warsaw's Voivode Court in 1964. Court reasoned that it possible in face of civil procedure and act on civil registry records to change one's gender after the genital reassignment surgery was conduced. In 1983 the Supreme Court ruled that in some cases, when the attributes of newly-formed sex are predominant it is possible to change one's gender even before the genital reassignment surgery[2].


In Romania, it is legal for transgender people to change their first name to reflect their gender identity, based on personal choice. Since 1996, it is also possible for someone who has gone through sex reassignment surgery to change their legal gender in order to reflect their new (post-operative) biological sex. Transsexuals then have the right to marry in their post-operative sex.[3]


Since June 2006, a new law in Spain allows transsexual people to modify their name and legal gender in all public documents and records on the basis of a personal request, regardless of whether they had genital reassignment surgery or not. However, medical (hormonal) treatment for at least two years is a prerequisite.

United Kingdom

Historically in the United Kingdom, transsexual people had succeeded in getting their birth certificates changed and marriages conducted. This was first legally challenged in the 1960s, in the case of Sir Ewan Forbes, where the Court of Session ruled that the certificate change was legitimate for the purposes of inheriting a title, a decision later upheld by the Home Secretary. However, the case was held secretly and in a Scottish court, and there was not a publicly reported case in an English court until 1970.[4] That year, in the case of Corbett v Corbett, Arthur Corbett attempted to annul his marriage to April Ashley on the grounds that transsexuals were not recognised in English law. It was decided that, for the purposes of marriage, a post-operative transsexual was considered to be of the sex they had at birth.

This set the precedent for the coming decades. People who thought they had existing valid marriages turned out not to – and the previous unofficial changing of birth certificates was stopped.

Transsexual people were able to change their names freely; to get passports and driving licences altered; to have their National Insurance details changed; and so forth. A piece of legislation was also introduced to ban discrimination against transsexual people for employment.

In the 1980s and 1990s the pressure group, Press for Change, helped people take several cases to the European Court of Human Rights about this. In Rees vs. United Kingdom, 1986, it was decided that the UK was not violating any human rights; but, that they should keep the situation under review. The UK government did nothing to look at the situation – and in 2002 in the case Goodwin vs. United Kingdom, it was decided that the rights to privacy and family life were being infringed.

In response to its obligation, Parliament passed the Gender Recognition Act 2004, which effectively granted full legal recognition for transgender people.

In contrast to systems elsewhere in the world, the Gender Recognition process does not require applicants to be post-operative. They need only demonstrate that they have suffered gender dysphoria, and have lived in the 'acquired gender' for two years, and intend to continue doing so until death. There are strict rules governing the requirements for granting of a certificate; more details may be found on the GIRES website.

Medical treatment

It has been established by the courts that no National Health Service Health Authority has the right to deny treatment for gender dysphoria as a matter of policy. However, effective access to treatment varies wildly depending upon the policies of the individual Gender Identity Clinics– with some taking a more relaxed approach than others. Transsexual people frequently characterise some centres as arrogant and controlling. A minimum requirement of 24 months real life experience, before a surgical referral is permitted, is not uncommon; and many GICs will force patients to transition before they are allowed access to hormone replacement therapy.

A common alternative for some is to seek private treatment; though most private health insurance plans specifically exclude it. Often, people will seek hormone therapy privately and then later seek surgery on the NHS; which, may prove troublesome because the NHS likes to be involved at all stages of the process.

However, that position has now seemingly been overridden by a subsequent decision, Goodwin v. United Kingdom (11 July 2002) in which the right to marry (Article 12 of the ECHR) and the right to a private and family life (Article 8 ECHR) were infringed by the UK's refusal to allow a post-operative transsexual person to change the gender on their birth certificate (the only conclusive documentary proof of gender in most cases including marriage). One of the factors considered by the Court was the acceptance of gender identity disorder by the UK's National Health Service and the provision of treatment including surgery. Another factor was the fact that the government had effectively done nothing to keep the law under review. The UK must therefore take steps to provide such recognition. In 2004 Parliament implemented its obligation with the Gender Recognition Act 2004.

Corbett v. Corbett

Corbett v. Corbett concerned a postoperative male-to-female transsexual, April Ashley. Ormord J found that since Ashley had male gonads, genitalia and chromosomes at birth, her "true sex" was male at the time of her birth, and that her "true sex" could not be changed. Chisholm attacked Ormord J's argument as simply defining one's "true sex" as ones biological sex at birth, ignoring the social and psychological aspects of sexual identity, without producing any convincing reason as to why these should be ignored. Ormord J mostly presumes it to be "obvious", although he does produce some arguments. He argues that a post-operative transsexual cannot "naturally" perform the "essential role" of a man or woman in a marriage. Chisholm rejects this argument, on the grounds that, whatever exactly the "essential role" in marriage is, be it reproduction or intercourse, many born men or women are incapable of doing so, and yet they are still considered men or women for the purposes of the law of marriage.

Justice Chisholm attacks Ormord J's decision for assuming that there is some essential characteristic that makes people male or female. He argues that sex is a compound of many elements, chromosomal, genital, gonadal, psychological and social, and that while in most people these criteria are congruent, in others they are not. He denies there is any 'true sex' of an individual, beyond these various criteria that make up one's sex, and he denies that any one of these criteria can be taken as totally determinative, in the absence of the other criteria.

Justice Chisholm also notes that while the English, South African and Canadian courts have accepted Ormord J's decision, New Zealand has rejected it. The question had not been considered before by Australian courts.

Justice Chisholm also considers the situation raised by Ormord J, where a married person seeks to changes their sex in the marriage, thereby giving the appearance of a homosexual marriage. Ormord J sees this as an argument against permitting legal recognition of transsexuality for the purposes of marriage law. Justice Chisholm points out that refusal of such legal recognition could equally give the appearance of homosexual marriage, since then someone who appears to be a man and lives socially as a man, but is legally considered to be a woman, could legally marry a man. Justice Chisholm suggests that the person's sex at the time of the marriage determines whether they can legally marry, and that a person who had a sex reassignment during their marriage would continue to be married until either party sought a divorce, even though their marriage would now be homosexual.


South Africa

In 2003 the Parliament of South Africa enacted the Alteration of Sex Description and Sex Status Act, which allows post-operative transsexual people (as well as intersex people) to apply to the Department of Home Affairs to have the sex description altered on their birth record. Once the birth record is altered they can be issued with a new birth certificate and identity document, and are considered "for all purposes" to be of the new sex.[5] The law experienced some criticism because it required gender-reassignment surgery to be completed before the records could be changed.[6] In 2009, a statute was passed to allow people to alter their gender without having to show any proof of surgery.[7]

North America


The situation in Canada varies depending upon which province you are in. It is possible to gain recognition in each of them, but with varying requirements.

United States



In July 2003, the parliament of Japan unanimously approved a new law that enables transsexual people to change their legal sexes. The law, effective in 2004, however, has controversial conditions which demand the applicants be both unmarried and childless. On 28 July 2004, Naha Family Court, Okinawa Prefecture, allowed an official sex-change of a transsexual woman, generally thought as the first court approval under the new law. Despite the sex reassignment surgery is mandatory for legal sex change, it does not be paid for by national health insurance, hormone replacement as well. Despite fatal prejudice and discrimination still rampant under influence of TV media that make fun of trans women by calling them "male", there are no anti-discrimination acts for transsexuals, for homosexual persons as well. Even if the name change of the pre-operative or having children transsexual is recognized, the person's documents are not issued reflecting the actual gender roll, but legal sex, which almost deprive the equal opportunity for employment of the transsexuals and they are often driven into forced prostitution or suicide. Unless her legal sex is changed, even post-operative transsexual woman is treated as male and when she is raped, she will not be protected by criminal law, and if she is arrested and put to prison, she will have her hair close-cropped treated as male.

In May 2005, the Tokyo Metropolitan Government's Transport Authority announced that transsexual people and those "suffering from a gender disorder" will be permitted to ride in designated women-only carriages on its subway lines [3].


There is no legislation expressly allowing transsexuals to legally change their gender in Malaysia. The relevant legislations are the Births and Deaths Registration Act 1957 and National Registration Act 1959. Therefore judges currently exercise their discretion in interpreting the law and defining the gender. There are conflicting decisions on this matter. There is a case in 2003 where the court allowed a transsexual to change her gender indicated in the identity card, and granted a declaration that she is a female.[8][9] However, in 2005, in another case, the court refused to amend the gender of a transsexual in the identity card and birth certificate.[8] Both cases applied the United Kingdom case of Corbett v Corbett in defining the gender.


The Supreme Court of the Philippines Justice Leonardo Quisumbing on September 12, 2008, allowed Jennifer Cagandahan, 27, to change both his birth certificate, gender and name from Jennifer to Jeff, to male: “We respect respondent’s congenital condition and his mature decision to be a male. Life is already difficult for the ordinary person. We cannot but respect how respondent deals with his unordinary state and thus help make his life easier, considering the unique circumstances in this case. In the absence of a law on the matter, the court will not dictate on respondent concerning a matter so innately private as one’s sexuality and lifestyle preferences, much less on whether or not to undergo medical treatment to reverse the male tendency due to rare medical condition, congenital adrenal hyperplasia. In the absence of evidence that respondent is an ‘incompetent’ and in the absence of evidence to show that classifying respondent as a male will harm other members of society ... the court affirms as valid and justified the respondent’s position and his personal judgment of being a male." Court records showed that - at 6, he had small ovaries; at 13, his ovarian structure was minimized and he had no breasts and did not menstruate. The psychiatrist testified that "he has both male and female sex organs, but was genetically female, and that since his body secreted male hormones, his female organs did not develop normally." The Philippines National Institutes of Health said "people with congenital adrenal hyperplasia lack an enzyme needed by the adrenal gland to make the hormones cortisol and aldosterone. Without these hormones, the body produces more androgen, a type of male sex hormone. This causes male characteristics to appear early in males or inappropriately in the case of females. About 1 in 10,000 to 18,000 children are born with congenital adrenal hyperplasia."[10][11][12]


Singapore has also recently recognized the right of transsexuals to marry in their reassigned sex.

South Korea

In South Korea, it is possible for transgender individuals to change their legal genders, although it depends on the decision of the judge for each case. Since the 1990s, however, legal sex change has been approved in most of the cases. The legal system in Korea does not prevent marriage once a person has changed their legal sex.

In 2006, the Supreme Court of Korea ruled that transsexuals have the right to have their legal papers altered to reflect their reassigned sex. A trans woman can be registered, not only as female, but also as being 'born as a woman'.[13]

While same-sex marriage is not approved by South Korean law, a transgender woman obtains the legal status of 'female' automatically when she marries to a man, even if she has previously been a 'male' on papers.


Birth Certificates

Estelle Asmodelle was Australia's first legal transsexual with the Births, Deaths and Marriages Dept. (NSW Government). As cited by (18 June 1987 - Australian Telegraph Newspaper.) This was the first time in Australian law history that an adult transsexual was permitted to change their birth certificate to a different sex and soon afterwards the passport law also changed allowing transsexuals to be issued passports with the new sex depicted.

Australia is now one of only a few countries where legal status of the new sex following sex affirmation surgery is granted via a new full birth certificate. Birth certificates are within the jurisdiction of the states, whereas marriage and passports are matters for the Commonwealth. All Australian jurisdictions now recognise the affirmed sex of an individual after surgery unless the person is married.


Re Kevin - validity of marriage of transsexual ([2001] FamCA 1074) is a groundbreaking judgment of the Family Court of Australia, concerning both transsexualism as a phenomenon, the human rights of those who experience transsexualism and the right of people who have experienced transsexualism to enter into a legally valid marriage.

Kevin, an affirmed male (sometimes still genoticentrically[14] referred to as a "female-to-male transsexual"), married Jennifer before the case started. Prior to the marriage Kevin had affirmed his male sexual identity by underging hormonal and other sex affirmation treatment; including a double mastectomy and full hysterectomy but not the construction of a phallus. His legal sex had been changed on his birth certificate and other documentation and since his affirmation of his male sex (including as at the time of his marriage and the trial) he had lived in the Australian culture and community as a male.

When the Attorney General for the Commonwealth of Australia advised the couple through his department that in his considered opinion their marriage was not a legally valid one and that the couple (or at least Kevin) was liable to be prosecuted and possibly imprisoned, the couple sought the legal advice and representation of Australian lawyer Rachael Wallbank[15], herself an affirmed female, and commenced proceedings in the Famly Court of Australia against the Attorney General for the Commonwealth of Australia to have their marriage declared legally valid.

The question to be determined by the court was whether Kevin was a man for the purposes of the marriage law of Australia and, hence, whether the marriage ceremony he had undertaken with Jennifer was a valid one. Further, at the time of the trial the couple had one child as a result of approved assisted technology. Their second child was born at the time of the hearing of the appeal proceedings. English law had previously decided, in the case of Corbett v Corbett (1971), that sex affirmation including genital reassignment/rehabilitation surgery (then and sometimes still geniticentrically called "Sex Reassignment Surgery") would not be recognized for purposes of marriage. That decsison had been generally followed throughout the world; including the United States of America. Justice Richard Chisholm (the judge in Re Kevin) found fault with both the legal bases and internal logic of this decision and held it did not bind or represent Australian law.

Significantly, Justice Chisholm found that the extensive international and Australian expert evidence in Re Kevin did not support the primary "factual" proposition in the Corbett decision that a causal (and hence legal) distinction could and should be made between the natural variations in human sexual formation sometimes called "intersex" (in Corbett and other similar decisions said to have a biological causation) and transsexualism (in Corbett and other similar decisions said to be a psychological disorder). Chisholm J found that on the balance of expert evidence, both as presented in Re Kevin and generally in cases throughout the world dealing with the issue, no such factual distinction was possible and that transsexualism was an example of natural intersexual diversity in human sexual formation and not a pychological disorder or illness.

Justice Chisholm stated that to determine a person's sex for the purpose of the law of marriage in Australia all relevant matters need to be considered, including: 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 affirmation (including genital reassignment/rehabilitation) treatments the person has undergone, and the consequences of such treatment as well as 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.

His Honour stated that it is clear from the Australian authorities that "post-operative transsexuals" will normally be members of their affirmed sex. Holding that the sex of a person for the purposes of marriage is their sex at the time of the marriage, the judgement found Kevin to be a man within the ordinary everyday meaning of the word in Australian life and declared the marriage between Kevin and Jennifer to be valid. The Attorney-General appealed.

The Full Court of the Family Court, upholding the decision at first instance [4], determined that the reasoning of the Family Division of the UK High Court in W v W, an intersex marriage case, [5] was a correct statement of the law in Australia and that people with transsexualism, like others with intersex conditions, should be able to choose their sex, affirm it and marry as a member of that sex.

Re Kevin has been subsequently extensively quoted and relied upon in international jurisprudence (including the in the United States of America and in the European Court of Human Rights) concerning the civil and human rights of people who experience transsexualism; including young people with transsexualism who are still regularly deprived of their right to affirm their innate sex without being punished by family and culture, change their legal sex in order to make it intelligably consistent with their affirmed/lived sex as well as being able to freely access medically approved sex affirmation treatment.


Until recently, transsexual people in Australia were able to be issued an interim passport with their self-identified gender stated upon it, in order to travel overseas for sex reassignment surgery (SRS). However, a recent "clarification" by the Minister for foreign affairs and Trade, Mr. Alexander Downer, stated that a person may not have a new passport or interim passport issued without a birth certificate stating their gender. instead they may be issued a "Document of Identity"

A department of Foreign Affairs spokesperson has said; "The department has an obligation to ensure that the national passport reflects the official identity of the bearer and it would be inconsistent ... to continue to issue passports, albeit limited in validity, to persons in a sex other than that shown in the records held by the ... births, deaths and marriages registrar,"[16]

Due to the interpretation of the Commonwealth Marriage Act 1961, Birth certificates are not able to be changed where the person is currently married. In the case of homosexual-identified transpeople, to obtain a divorce would require them to perjure themselves by stating that their relationship was irretrievably broken. Due to the aforementioned "clarification" Such people are also unable to be issued a passport, even if they previously obtained an interim passport in order to have SRS.

Grace Abrams appealed the minister's rejection of her application for a permanent passport. Her application with the administrative appeals tribunal was upheld, stating that she was able to validate her identity as a female person, and that her inability to present a female birth certificate due to state legislation was not valid grounds for rejecting her application[6]

This, however, gives rise to the event that Mrs. Abrams is a legally identified woman in a legally recognised marriage with another legal woman [7]

See also


Chow, Melinda. (2005). "Smith v. City of Salem: Transgendered Jurisprudence and an Expanding Meaning of Sex Discrimination under Title VII". Harvard Journal of Law & Gender. Vol. 28. Winter. 207.

Transgender Rights. (2006). Edited by Paisley Currah, Richard M. Juang and Shannon Price Minter. Minneapolis: University of Minnesota Press. [8]


  1. Lydia Foy vs. An t-Ard Chlaraitheoir (Registrar General)
  2. see for example: T. Smyczynski, Prawo rodzinne i opiekuńcze, C.H. Beck 2005
  3. Legal Survey of LGBT Rights Worldwide, PDF file
  4. Playdon, Zoe-Jane (1996). The Case of Ewan Forbes. Press for Change. Retrieved on 2008-11-09.
  5. Alteration of Sex Description and Sex Status Act, 2003. Parliament of South Africa, 15 March 2004.
  6. Phahlane, Charles. "Transgender group calls for more time to consider 'inhumane' bill on sex status", Independent News and Media, 10 September 2003. Retrieved on 6 September 2009. 
  7. South African Angst , Mark Gevisser, New York Times, September 2, 2009.
  8. 8.0 8.1 "JeffreyJessie: Recognising Transsexuals", The Malaysian Bar. Accessed August 21, 2007.
  9. J.G v. Pengarah Jabatan Pendaftaran Negara
  10., Call him Jeff, says SC; he used to be called Jennifer
  11., Woman's body 'naturally' became male
  12., Rare Condition Turns Woman Into Man
  13. Korea To Correct Identity Papers Of Transsexuals -
  14. a belief that the sexual identity of a person (male or female) is best determined by their genital appearance or formation; even when that contradicts other biological sex idnicators such as the person's brain sex or neurological sex as evidenced by the person's own opinion/experience of their sexual identity.
  15. See [1]for useful commentary on Re Kevin and further case references.
  16. Natalie Imbruglia's sex change cousin in passport row, Sydney Morning Herald, [2]

External links


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