Chapter nine: Transgender Marriage

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Transgender marriage occurs when a change of gender identity is judicially recognised in the context of marriage. Since marriage in the majority of jurisdictions is defined in terms of opposite-sex partners, courts ask whether an individual is a man or a woman for the purpose of the marriage statute. What does it mean to be male or female?^[1] Is a person’s sex a biological fact, a legal construction, or a bit of both? Is one’s capacity to marry defined by the ability to engage in penile-vaginal sex? Or is the ability to procreate determinative? These are the questions that courts seek to answer.

There is a great lack of consistency. Some courts reject the notion that a person can be legally recognised in a new sex for the purpose of marriage, even if that person has been recognised in the new sex for other purposes. Other courts apply various tests of sexual functionality or physical appearance. Because of the medical risks involved in the surgical construction of male genitalia, physical appearance tests are significantly harder for transgender men to meet than transgender women.

Transgender marriage cases are dominated by the 1970 British decision on Corbett v. Corbett.^[2] In some sense, all transgender marriage cases are either an extension of Corbett reasoning or a reaction to it.^[3] Corbett concerned a petition to legally annul the marriage between Arthur Corbett and April Ashley. April Ashley was born male and had undergone hormonal treatment and sex reassignment surgery, including vaginoplasty. According to Justice Omrod, the issue before him was the “true sex” of April Ashley and, secondarily, whether she had the capacity to consummate the marriage. He held that sex was determined by a congruence of chromosomal, gonadal and genital factors, and was a biological fact, determined at birth, forever immutable. In his view, April Ashley was physically incapable of consummating the marriage because intercourse using “the completely artificial cavity constructed” by a doctor could not possibly be described as natural intercourse. The outcome of Corbett was codified by the enactment of the Nullity of Marriage Act 1971 and the Matrimonial Causes Act 1973. With his ruling, a single judge of the High Court set the terms of the debate for transgender marriage jurisprudence

MT v. JT, decided in 1976 by the Superior Court of New Jersey (USA), marked a significant departure from Corbett. Following their separation, MT petitioned for support and maintenance from her husband. MT had been born male and, prior to the marriage, had undergone “surgery for the removal of male sex organs and construction of a vagina”. JT argued in defence that MT was male and that the marriage was invalid. The court ruled that the marriage was valid, stating “we must disagree with the conclusion reached in Corbett that for purposes of marriage sex is somehow irrevocably cast at the moment of birth, and that for adjudging the capacity to enter marriage, sex in its biological sense should be the exclusive standard”. In reaching this conclusion, the court explained that it had a different understanding of sex and gender. It defined gender as “one’s self-image, the deep psychological or emotional sense of sexual identity and character”. In short, when an individual’s “anatomical or genital features” were adapted to conform with a person’s “gender, psyche or psychological sex”, then identity by sex must be governed by the congruence of these standards.

MT v. JT also emphasised MT’s capacity to function sexually as a female. The court stated that sexual capacity “requires the coalescence of both the physical ability and the psychological and emotional orientation to engage in sexual intercourse as either a male or a female”. Medical witnesses testified that MT could no longer be considered male because “she could not function as a male sexually for purposes of recreation or procreation”. Sexual capacity was thus determinative. Because MT had a vagina, she had the capacity to function sexually as a female and she should be legally recognised as a female for purposes of marriage. One commentator has described the relationship between Corbett and MT v. JT as the journey from “(bio)logic to functionality”.^[4]

Since MT v. JT, US courts have arrived at various and contradictory conclusions on transgender marriage. Almost all the cases have quoted Corbett or cases that relied on Corbett. Even as US States have increasingly provided statutory instruments that make it possible to recognise a change of sex on birth certificates and other identity documents, courts have refused to recognise such marriages as valid, perhaps out of fear of condoning same-sex marriage.^[5] Thus in the case of In re Simmons, the marriage was ruled invalid even though Robert Simmons had changed his birth certificate to reflect his male sex.^[6] Markedly different reasoning is evidenced by US Board of Immigration Appeals in In re Lovo-Lara. The petitioner had changed her birth certificate to the female sex and married a male citizen of El Salvador. The Board found that her marriage was valid in the State in which she was married because she had met the legal requirements for changing her sex on her birth certificate. Since the marriage was legal under State law, the federal government was required to recognise it for immigration purposes.

MT v. JT has been influential in other jurisdictions. In M v. M, a New Zealand court heard an application to declare invalid a marriage between a male-to-female (MtF) transgender person and a biological male, following twelve years of marriage.^[7] In this case Mrs. M brought the application for invalidity, arguing that she was and always had been male. She had undergone sex reassignment surgery, involving the amputation of the penis and both testes and the construction of a vagina. The marriage had been consummated. The court noted that Mrs M was similar to Ashley Corbett. Both had been born male, had had sex reassignment surgery, and their chromosomal structures had not changed. The court did not consider the length of the marriage or the fact that the parties had “ a continuing sexual relationship” to be factors that distinguished the case from Corbett. Nevertheless, Corbett was not binding on a New Zealand court. The court was sympathetic to the plight of an individual who would be trapped in “some kind of sexual twilight zone” if the change of sex were not recognised, but it also noted that sympathy alone could not resolve the question. In the end, the court declared the marriage valid, while acknowledging that there was “no simple medical test for the determining of which side of the sexual line a particular person falls”. The court stated:

In response to M v. M, the Attorney-General of New Zealand sought a declaratory judgment as to the validity of a marriage involving an individual who had undergone sex reassignment through surgery or hormone therapy or any other medical means. In Attorney-General v. Family Court at Otahuhu, the High Court of New Zealand moved beyond a functional assessment to assess the physical appearance of the individual, focusing on genitalia. The court observed that, before the discovery of chromosomes, the “obvious manifestations of breast and genitalia including a woman’s vagina would have been considered conclusive”. In rejecting the biological determinism of Corbett, the court noted that neither the ability to procreate nor the ability to have sexual intercourse were required in order to marry. The law of New Zealand no longer required that a marriage be consummated. It found the reasoning in MT v. JT and M v. M compelling.

The High Court stated that reconstructive surgery was necessary for recognition, but did not require the capacity to perform vaginal-penile intercourse. The Court noted that there were “many forms of sexual expression possible without penetrative sexual intercourse”. To be capable of marriage, however, a couple must present themselves as having what appeared to be the genitals of a man and a woman. Anatomy was dispositive, but sexual capacity was not. This opinion had practical implications. The court noted that there was “no social advantage in the law not recognizing the validity of the marriage of a transsexual in the sex of reassignment”. To hold otherwise would be to allow a MtF individual to contract a valid marriage with a woman, when to “all outward appearances, such would be same sex marriages”.

In In re Kevin, the Family Court of Australia affirmed the validity of a marriage between Kevin, a female-to-male (FtM) transgender individual, and his wife, a biological female. (The court of appeals later accepted the reasoning of the trial court in its entirety.) Kevin’s situation differed from the earlier cases discussed because, although he had undergone hormone therapy and some surgery, he had not had phalloplasty (surgical construction of the penis). The court recognised the complexity of the situation, stating that there was no “formulaic solution” for determining the sex of an individual for the purpose of marriage. Instead it outlined a variety of factors without assigning preeminence to any of them; a person’s individual sex should be determined by “all relevant matters”. In the end, what appeared to be dispositive was the fact that Kevin functioned socially as a man, was accepted as male by his colleagues, family and friends, and was the father to a child born during the marriage through ART. Like Attorney General v. Family Court at Otahuhu, the court also emphasised the policy benefits of recognising transgender individuals in the acquired gender. Failing to do so would lead to situations where a FtM individual would only be permitted to marry a man.

In re Kevin, the court pointed out what it considered to be the major fallacy underlying Corbett. The court there had adopted an “essentialist view of sexual identity”, by assuming that “individuals have some basic essential quality that makes them male or female”. The Australian court disagreed with this assumption.

The task of the law is not to search for some mysterious entity, the person’s “true sex”, but to give an answer to a practical human problem . . . to determine the sex in which it is best for the individual to live.

In W v. Registrar of Marriages, a recent Hong Kong case, the issue was whether a trans woman who had had sex reassignment surgery could marry. She had successfully changed her permanent identity card but not her birth certificate. The court first considered whether the words “man” and “woman” in the Marriage Ordinance and Matrimonial Causes Ordinance could be construed to include a “post-operative transsexual individual in his or her acquired sex”. It found this to be a question of statutory construction. The meaning of “man” and “woman” did not include individuals who had changed their sex.

According to the court, “the ability to engage in natural heterosexual intercourse” was an essential feature of marriage, regardless of whether the law had always permitted older people or infertile people to marry. The purpose of marriage was procreative. It noted, too, that allowing a post-operative transsexual to marry in his or her acquired gender “would be tantamount to sanctioning same sex marriage of a particular form”. This would have implications for other forms of same-sex marriage. In short, it was “almost self-evident that all this must be a matter for the legislature and not for the court in the name of statutory interpretation.”

The Hong Kong court further noted that courts in New Zealand, Australia and New Jersey, while departing from Corbett, had adopted very different tests. MT v. JT emphasised the capacity to function sexually. In New Zealand, the court held that genital appearance was dispositive. In Australia, Kevin had neither the capacity to engage in penile-vaginal intercourse nor male genitalia and yet was recognised as male, largely because of his self-perception and the perceptions of those around him. These varying circumstances, according to the court, also weighed in favor of a legislative solution. The court stated:

It seems to me that at the highest, the applicant’s case here is that 40 years after Corbett, because of the many changes that have taken place, there has now been opened a legislative gap, so far as our law of marriage is concerned, relating to the position of post-operative transsexuals. It is a gap that needs to be addressed one way or another. Yet it does not follow that it is for a court, in the name of statutory interpretation, to fill the gap. Given the inherent difficulties and potential ramifications involved, the gap is one that is for the legislature to consider filling. The court has no mandate to do so.

As for the right to marry argument raised by the applicant, the court found that the definition of marriage was largely influenced by social consensus. It noted that non-consummation was still a ground for invalidating a marriage in Hong Kong and that, as a society, Hong Kong emphasised procreation. The applicant’s argument, which prioritised mutual society, help and comfort over procreation, had potentially far-reaching implications and could open the door to same-sex marriage. “This shows that the problem one is dealing with cannot be answered by reference to logic or deduction alone, which is essentially what the present argument is all about; rather, it must be answered primarily by reference to societal understanding and acceptance”. The court reframed the question: it was not about the restriction of a right “according to the wishes of the majority” but rather about whether the institution of marriage should be given a new contemporary meaning. Having held that the question was one of social consensus, the court found no violation of the right to marriage.

In 2002, the European Court of Human Rights, sitting as a Grand Chamber, effectively overruled Corbett and the Matrimonial Causes Act in the case of Christine Goodwin v. United Kingdom. In this instance, the applicant had been born male and had undergone hormone therapy, vocal chord surgery, and gender reassignment surgery. She alleged that, in refusing to change her social security card, national insurance card and birth certificate to reflect her female sex, the State had violated her right to respect for private life under Article 8 of the Convention. Furthermore, although she was in a relationship with a man, she could not marry her partner because the law treated her as a man, in violation of the right to marry under Article 12. The Court agreed.

The Court noted, first, that the applicant experienced stress and alienation that resulted from the “discordance” between her identity and her lack of legal recognition. It described this as a conflict between social reality and the law. “Serious interference with private life can arise where the state of domestic law conflicts with an important aspect of personal identity”.^[9] The Court rejected Corbett’s assertion that sex was determined at birth on the basis of chromosomal, gonadal, and genital factors. It found that the chromosomal element should not “take on decisive significance for the purposes of legal attribution of gender identity”. Departing from its previous case law, the Court concluded that Article 8 imposed a positive obligation on the State to legally recognise gender reassignment.

As for the right to marry claim, the Court held that inability to conceive a child did not vitiate the right to marry.^[10] The applicant lived as a woman, was in a relationship with a man, and would only desire to marry a man. To deny her the possibility of doing so violated Article 12.^[11]

The cases included here from New Zealand and Australia are unusual in that they played a role in influencing the reasoning of the European Court of Human Rights. The European Court explicitly relied on these decisions, as well as legislative developments in other countries, when it found an international trend towards legal recognition of changed gender identity.^[12] The Court also found support from In re Kevin in rejecting chromosomes as a deciding factor. The thinking of the European Court was influenced in a third way, too: Strasbourg acknowledged the lived social reality of transgender individuals, which was also highlighted in the New Zealand and Australian cases. The key issue was not finding the “true sex” of an individual, but recognising the sex in which that person lived. The interplay between these decisions and the landmark case of Christine Goodwin emphasises the extent to which judicial conversations take place not only across borders but also between national and supranational courts.