Varieties of decision- making: Reflections on deciding Re Kevin Richard Chisholm Adjunct Professor, ANU College of Law, Australia.

1 The biological sexual constitution of all individuals is fixed at birth and cannot be changed. 2. Ms Ashley's biological sexual constitution at birth was male. 3. Therefore Ms Ashley's biological sexual constitution remains male. 4. Therefore Ms Ashley's true sex is male. 5. The validity of the marriage depends on Ms Ashley's “true sex”. 6. Therefore, the other party being a man, the marriage is invalid.

…the criteria must, in my judgment, be biological, for even the most extreme degree of transsexualism... or the most severe hormonal imbalance … [in a person with male chromosomes, gonads and genitalia] cannot reproduce a person who is naturally capable of performing the essential role of a woman in marriage.

…the criteria must, in my judgment, be biological, for even the most extreme degree of transsexualism... or the most severe hormonal imbalance … [in a person with male chromosomes, gonads and genitalia] cannot reproduce a person who is naturally capable of performing the essential role of a woman in marriage.

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Re Kevin: structure of judgment 1.Marriage valid if parties are a man and a woman at time of marriage. 2.No rule that a person’s sex is determined by circumstances at birth: Corbett not Australian law. 3.“Man” and “woman” have ordinary meaning, which can include affirmed sex: Harris, SRA. 4.Kevin had at birth female gonads, chromosomes and genitals at birth, but was a man at the time of marriage, having regard to all the circumstances (self- perception; hormonal and surgical processes; acceptance in society, etc.)

AB v State of WA (High Court of Australia, 2011) The Act does not … contemplate some abstract evaluation of maleness or femaleness. [… the considerations in the Act] involve matters of policy and value judgments according to which recognition should be given or refused.

Norrie v NSW Registrar of Births Deaths and Marriages NSW Court of Appeal, 2013 The Appeal Panel… erred in determining that the current ordinary meaning of the word “sex” is limited to the character of being either male or female.

Thee different approaches? Essentialism (“Swan essence ”)(eg Corbett). Policy-based allocation to a category (Eg Re Leber; Re Kevin; AB v State of WA). Changing or by-passing the categories) ( eg, perhaps, Norrie v NSW Registrar of Births Deaths and Marriage).