A Brisbane Family Court case in 1979, In the marriage of C and D (falsely called C), annulled a marriage on the basis that an intersex man could not be legally married because marriage can only be between someone who is seen to be wholly male and someone who is seen to be wholly female. The judgement describes C:
“born a male and had been reared as a male”
“diagnosed as a true hermaphrodite”
“At the age of twenty-two he underwent surgery which involved restructuring of his external sex organs”
“Marriage as understood in Christendom is the voluntary union of one man and one woman … and since the respondent was a combination of both, a marriage in the true sense could not have taken place and did not exist”
The case was not about the husband’s right to marry, but rather whether or not he was legitimately married:
“The wife’s consent to the marriage was not a true consent because she was mistaken as to the identity of the husband at the time of the marriage. She believed that she was marrying a male whereas in fact she was marrying a combination of both male and female.”
In contrast, the Family Court of Australia case of Re: Kevin determined the right of a transgender man to marry a non-intersex, non-transgender woman. Despite this, the case illuminates present risks and concerns: a tendency to disregard the birth assignments, identities and upbringing of intersex people is commonplace, and built into conceptions of ‘sex as biological and gender as social’. These conceptions can misrepresent the status and history of people with intersex variations. The doubts they cause can have implications for our marriageability, participation in sport, and other social functions. They erect barriers to our participation in society.
Contemporaneous responses to the case can be found in Bailey (1979), and Finlay (1980). Bailey (1979) referred to later chosen surgery to make his body more typically male as “sex-change surgery”, conflating intersex and transgender experiences. However, the man at the centre of this case was assigned male at birth, raised male, and clearly identifies as male. Nevertheless, such factors were inconsequential in the ahistorical annulment of his marriage.
Early surgeries were not the norm when he was an infant or young child, but he chose surgeries as an adult to make his body more typically male. As described in the judgment, he appeared in a case study in the Medical Journal of Australia in 1966 (Fraser et al). An extract from that MJA report discusses his birth and upbringing, and how early surgical intervention became the norm in Australia in the years after his birth:
A’s parents were told at his birth that he was a male, and that his gross phallic deformity [sic] could not be corrected until he was 16 years old. No doubt this advice was tendered by a disciple of the then popular but now rarely used method of delaying definitive treatment of hypospadias, with the use of an inlay graft, until the patient was approaching adult life. As often happens in such cases, by the time he was 16 years old the deformity [sic] had become so accepted, by both the parents and the patient, that no steps were taken to commence reparative surgery. In the meantime, he had led a normal life at school and had now commenced work.
The ruling in this case has been much criticised, and later cases have not followed it as precedent – but it remains cited, for example in Tien-Lao & Tien-Lao  FamCA 953, as a case of ‘mistaken identity’. In our view, this is harmful.
As we describe further in our reports on faith, the construction of a ‘hermaphrodite’ as necessarily neither female nor male is an ahistorical construction. The Christian tradition, derived from Roman law and evident in canon law and early common law, regards hermaphrodites as either female or male depending on prevailing or predominant sex characteristics – including for purposes of marriage, and this is cited by Finlay (1980) in his criticism of the case.
As is evident in legal cases taken by women athletes with intersex variations, this case shows how constructions of intersex as a third sex category adversely impact on people with intersex variations. In this case, as in sporting cases, the people adversely affected have lived their entire lives in the sex observed at birth, yet their rights to live their lives in line with their status at birth been questioned and challenged.
The Darlington Statement, a 2017 intersex community declaration in Australia and Aotearoa New Zealand rejects associations between intersex and third sex categories, in part because of these impacts.
In the marriage of C and D (falsely called C) (1979) FLC 90-636.
Tien-Lao & Tien-Lao  FamCA 953 (21 November 2018)
Bailey, Rebecca J. 1979. ‘Family Law–Decree of Nullity of Marriage of True Hermaphrodite Who Has Undergone Sex-Change Surgery’. Australian Law Journal 53 (9): 659–65.
AIS Support Group Australia, Intersex Trust Aotearoa New Zealand, Organisation Intersex International Australia, Eve Black, Kylie Bond, Tony Briffa, Morgan Carpenter, et al. 2017. ‘Darlington Statement’. https://ihra.org.au/darlington-statement/.
Finlay, Henry A. 1980. ‘Sexual Identity and the Law of Nullity’. Australian Law Journal 54 (3): 115–26.
Fraser, Kenneth, M. J. J. O’Reilly, and J. R. Rintoul. 1966. ‘Hermaphroditus Verus, with Report of a Case’. Medical Journal of Australia 1 (24): 1003–8. doi:10.5694/j.1326-5377.1966.tb73198.x