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 person cannot be legally married because marriage can only be between someone who is seen to be 100% man and someone who is seen to be 100% woman. 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.
Responses to the case can be found in, for example Bailey (1979), and Finlay (1980). The discourse in journal articles on this case has suggested that the man underwent “sex-change surgery”. However, he was assigned male at birth, raised male, and clearly identifies as male.
As described in the judgment, the same man previously appeared as 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 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.
Nevertheless, such factors were inconsequential in the ahistorical annulment of his marriage. Bailey (1979) referred to later chosen surgery to make his body more typically male as “sex-change surgery”.
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. At the same time, a tendency to disregard the sex assignments, identities and upbringing of intersex people remains commonplace. This doubt can have implications for our marriageability, participation in sport, and other social functions.
As we describe further in our reports on faith, the construction of a ‘hermaphrodite’ as necessarily neither female nor male is an ahistorical construction. Roman law, canon law and early common law took approaches that regard hermaphrodites as either female or male depending on predominant characteristics, including for purposes of marriage – and this is cited by Finlay (1980) in his criticism of the case.
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.
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.