- Corbett v Corbett (1970) 2 All ER 33 at 49 per Ormrod J.
- Attorney-General v Otahuhu Family Court (1995) 1 NZLR 603 at 629 per Ellis J.
- Judith Butler ‘Imitation and Gender Insubordination’ in Diana Fuss (ed), Inside/Out: Lesbian Theories, Gay Theories, London: Routledge, 1991, 20.
- (1970) 2 All ER 33. The Corbett decision has been consistently followed in the UK both in relation to marriage (Peterson v Peterson, The Times 12 July 1985; Franklin v Franklin (1990) The Scotsman, 9 November; S-T (formerly J) v J (1997) 3WLR 1287, (1998) 1 All ER 431) and other subject matters (see Dec C.P 6/76 National Insurance Commissioner Decisions; E.A. White v British Sugar Corporation (1977) IRLR 121; Social Security Decision numbers R (P) 1 and R (P) 2 (1980) National Insurance Commissioner Decisions; R v Tan (1983) QB 1053; Collins v Wilkin Chapman (1994) EAT/945/93 (Transcript)) and UK law has been upheld on appeal to the European Court of Human Rights (see Rees v UK (1986) 9 EHRR 56; Cossey v UK (1991) 13 EHRR 622; X, V and Z v UK (1997) EHRR 143; Sheffield and Horsham v UK (1998) 2 FLR 928).
- The term ‘post-operative’ refers to transgender persons who have undergone full sex reassignment surgery (SRS). Crucially, this includes the construction of a vagina (vaginoplasty) or penis (phalloplasty). With the exception of the Australian decision of SRA, which was overturned on appeal, there has been no recognition, anywhere in the common law world, of the sex claims of pre-operative persons (see Secretary, Department of Social Security v SRA (1992) 28 ALD 361; (1993) 118 ALR 467). For a discussion of the case see Andrew Sharpe. ‘Anglo-Australian Judicial Approaches to Transsexuality: Discontinuities, Continuities and Wider Issues at Stake’ (1997) 6:1 Social and Legal Studies: An International Journal 23–50.
- 355 A 2d 204 (1976). It should be noted that more recent decisions in other US jurisdictions have preferred to follow Corbett (see In re Ladrach, 32 Ohio Misc. 2d 6,513 N.E. 2d 828 Ohio Probate Ct. 1987; Littleton v Prange 288th Judicial District Court, Bexar County, Texas (1999)). Indeed, in the Littleton decision summary judgment was granted on the basis that argument that an M2F was female failed to raise a genuine question of material fact (though see the dissenting judgment of Justice Lopez).
- (1991) NZFLR 337.
- (1995) 1 NZLR 603.
- (1866) LR 1 PD 130; (1861–1873) All ER Rep 175.
- See Khan (1962) 3 FLR 496 at 497; In the Marriage of C and D (falsely called C) (1979) 35 FLR 340 at 345; In the Marriage of S (1980) 42 FLR 94 at 102. In the US context see, for example, Singer v Hara, 11 Wash App. 247, 522 p. 2d 1187 (App Ct. 1974); B v B 78 Misc. 2d 112, 355 N.Y.S. 2d 712 (Sup Ct. 1974); Jones v Hallahan, 501 S.W. 2d 588 (Ky. Ct. App. 1973); Baker v Nelson, 291 Minn. 310, 191 N.W. 2d 185 (Sup. Ct. 1971), app. Dism. 409 U.S. 810, 93 S. Ct. 37, 34 L. Ed. 2d 65 (1972).
- In the Australian context see the Marriage Act 1961 (Cth) sections 46(1) and 69(2); Family Law Act 1975 (Cth) section 43(a).
- (1970) 2 All ER 33.
- Ibid at 48.
- Ibid.
- Ibid at 49. In doing so he echoed the words of Dr. Lushington from the mid-nineteenth century English case of D-e v A-g (orse. D-e) (1845) 1 Rob Eccl 279; 163 ER 1039; 27 Digest (Repl) 273, 2187.
- Ibid.
- The case of B v B (1955) P.42; (1954) 3W.L.R. 237; (1954) 2 All E.R. 598 would seem to provide authority for this proposition.
- (1962) 3 All ER 55.
- Ibid.
- (1970) 2 All ER 33 at 50.
- Ibid.
- Ibid at 49.
- See Dave King, The Transvestite and the Transsexual, Aldershot, Hants, UK: Avebury, 1993, Chp 2.
- Erwin K. Koranyi, Transsexuality in the Male: the Spectrum of Gender Dysphoria, Springfield, Il: Charles C. Thomas, 1980, 156.
- Robert J. Stoller, Sex and Gender, NY: Science House, 1968, 251.
- (1970) 2 All ER 33 at 36.
- Ibid at 47.
- Ibid.
- Carole-Anne Tyler, ‘Boys will be Girls: the Politics of Gay Drag’ in Diana Fuss (1991) above note 3 at 32–70.
- During the eighteenth century cross-dressing changed in character in the popular imaginary. From being perceived as disguise or masquerade and as associated with the theatre, albeit with occasional overtones of sodomy, it came to be seen as the signifier of a form of sodomite (see Randolph Trumbach ‘London's Sodomites: Homosexual Behaviour and Western Culture in the 18th Century’ (1977) Fall Journal of Social History 1; Randolph Trumbach ‘Sodomitical Subcultures, Sodomitical Roles, and the Gender Revolution of the 18th Century: The Recent Historiography’ in Robert P. Maccubbin (ed) Tis Nature's Fault: Unauthorised Sexuality during the Enlightenment, Cambridge University Press, 1987; Richard Davenport-Hines, Sex, Death and Punishment, London: W. Collins & Sons Ltd, 1990). In the nineteenth century sexology serves to conflate further cross dressing with homosexuality (see George Chauncey, ‘From Sexual Inversion to Homosexuality: Medicine and the Changing Conceptualization of Female Deviance’ (1982/1983) Salmagundi 58/59; Gert Hekma ‘A Female Soul in a Male Body: Sexual Inversion as Gender Inversion in Nineteenth-Century Sexology’ in Gilbert Herdt (ed) Third Sex, Third Gender: Beyond Sexual Dimorphism in Culture and History, NY: Zone, 1994).
- (1970) 2 All ER 33 at 37.
- Robert J. Stoller. ‘Male Transsexualism: Uneasiness’ (1973) 130 American Journal of Psychiatry 536–9.
- (1970) 2 All ER 33 at 36.
- Ibid at 43.
- Ibid at 36.
- Ibid at 37.
- Ibid.
- Ibid at 37.
- Ibid at 38.
- Ibid at 47.
- Ibid at 38.
- For previous discussion and criticism of the Carbett decision see, for example, David Green, ‘Transsexualism and Marriage’ (1970)120 New Law Journal 210; Douglas Smith, ‘Transsexualism, Sex Reassignment and the Law’ (1971) 56 Cornell Law Review 963; Terrence Walton, ‘When is a Woman not a Woman?’ (1974) 124 New Law Journal 501; Henry Finlay, ‘Sexual Identity and the Law of Nullity’ (1980) 54 Australian Law Journal 115; Alec Samuels, ‘Once a Man, Always a Man; Once a Woman, Always a Woman—Sex Change and the Law’ (1984) Medicine and Science Law, 163; John Dewar. ‘Transsexualism and Marriage’ (1985) 15 Kingston Law Review 58; and Jerold Taitz. ‘The Law Relating to the Consummation of Marriage where one of the Spouses is a Post-Operative Transsexual’ (1986) 15 Anglo-American Law Review 141; Michael Kirby, ‘Medical Technology and New Frontiers of Family Law’ (1987) 1 Australian Journal of Family Law 196; John Mountbatten, ‘Transsexuals, Hermaphrodites and Other Legal Luminaries’ (1991) 16 Legal Service Bulletin 223; Vivienne Muller, ‘Trapped in the Body—Transsexualism, the Law and Sexual Identity’ (1994) 3 Australian Feminist Law Journal 103.
- 355 A 2d 204 (1976).
- Ibid.
- Anonymous v Anonymous 67 Misc. 2d 982; 325 N.Y.S. 2d 499 (Sup. Ct. 1971); B v B above note 10.
- 355 A 2d 204 (1976) at 206.
- Ibid at 209.
- Secretary, Department of Social Security v HH (1991) 13 AAR 314 at 317 per O'Connor J and Muller. This view is one informed by medicine (see Harry Benjamin, The Transsexual Phenomenon, NY: The Julian Press, Inc, 1966; Robert J Stoller above note 32). While some clinicians are now recognising gay and lesbian transgender persons (see, for example, Ray Blanchard, Leonard Clemmensen and Betty W. Steiner, ‘Heterosexual and Homosexual Gender Dysphoria’ (1987) 16 Archives of Sexual Behavior 139–152; Eli Coleman and Walter O.Bockting, ‘Heterosexual Prior to Sex Reassignment—Homosexual Afterwards: A Case Study of a Female-to-Male Transsexual’ (1988) 12 Journal of Psychology and Human Sexuality 69–82; Dorothy Clare and Bryan Tully. ‘Transhomosexuality, or the Dissociation of Sexual Orientation and Sex Object Choice’ (1989) 18 Archives of Sexual Behavior 531–536) the prevalence of non-heterosexual desire tends to be downplayed. Moreover, gay and lesbian transgender identities continue to be viewed negatively in terms of prognosis and therefore access to SRS (see Anne Bolin, In Search of Eve: Transsexual Rites of Passage, Massachusetts: Bergin & Garvey Publishers, Inc, 1988; Dave King, 1993, above note 23; Frank Lewins, Transsexualism in Society: A Sociology of Male-to-Female Transsexuals. Melbourne: Macmillan Education Australia Pty Ltd, 1995; Jason Cromwell, Transmen & FTMs: Identities, Bodies, Genders & Sexualities, Chicago: University of Illinois Press, 1999).
- Ibid at 206.
- Indeed, a concern with one's own sexual pleasure is not typically read as a sign of ‘authentic’ transsexual identity within the medical arena. See Harry Benjamin, 1966, above note 48 at 13–14,54;John Money and Clay Primrose, ‘Sexual Dimorphism and Dissociation in the Psychology of Male Transsexuals’, in Green and Money (eds) Transsexualism and Sex Reassignment, Baltimore: Johns Hopkins Press, 1969, 121–122; Robert J Stoller, 1973, above note 32.
- 355 A 2d 204 (1976) at 206.
- Ibid at 208.
- (1991) NZFLR 337.
- (1976) 2 SALR 308.
- (1991) NZFLR 337 at 344.
- Ibid.
- Ibid.
- R V Harris and McGuiness (1988) 35 A Crim R 146.
- (1991) NZFLR 337 at 348.
- Ibid.
- Ibid at 347. This was precisely the view taken of a hermaphrodite by Bell J. in the marriage case of C and D (1979) above note 10.
- Robert Louis Stevenson, The Strange Case of Dr Jekyll and Mr Hyde, Der Munchen: Deutscher Taschenbuch Verlag, 1986.
- See Julia Epstein, Altered Conditions: Disease, Medicine and Storytelling, Routledge, 1995, 91.
- Ibid. In considering the history of the treatment of hermaphrodites, Epstein suggests that their bodies were taken to signify divine wrath.
- (1991) NZFLR 337 at 348.
- See, for example, Corbett v Corbett (1970) above note 1; B v B (1974) above note 10; Rees v UK (1986) above note 4; Cossey v UK (1991) above note 4; ST (formerly J) v J (1998) above note 4.
- Attorney-General v Otahuhu Family Court (1995) 1 NZLR 603.
- Ibid.
- Ibid at 614–615.
- Ibid at 612.
- Ibid.
- Ibid at 615.
- Ibid at 607.
- Ibid at 615.
- Ibid at 614.
- Ibid at 607.
- Ibid at 615. While no superior court has previously taken this course it should be pointed out that it was adopted by the Administrative Appeals Tribunal in the Australian decision of Secretary, Department of Social Security v SRA, a decision that was emphatically overturned on appeal by the Federal Court (see above note 5). For a discussion of the case see Frank Bates, ‘When Is a Wife…?’ (1993) 7 Australian Journal of Family Law 274–82; Andrew Sharpe, ‘Anglo-Australian Judicial Approaches to Transsexuality’ (1997) above note 5.
- Ibid at 629.
- Ibid at 612.
- Ibid at 619.
- See Dave King, 1993, above note 23. Indeed, the famous transsexual Jan Morris went to Casablanca for her surgery in 1972 after she was told she must divorce her wife in order to receive surgery in the UK (Jan Morris, Conundrum: An Extraordinary Narrative of Transsexualism, NY: Holt, 1986). More recently, Kristina Sheffield stated that she was informed by her consultant psychiatrist and her surgeon that she was required to obtain a divorce as a pre-condition to surgery being carried out (see Sheffield and Horsham v UK (1998) 2 FLR 928).
Australian Feminist Law Journal
Volume 14, 2000 - Issue 1