Sexual orientation and gender identity
Sexual orientation and gender identity

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Sexual orientation and gender identity

Activity 11: Man or woman

You should allow yourself 30 minutes to complete this activity.

This activity relates to the entry ‘2000 (Legal) W v W’ that appears in the timeline in Section 4.1.

You have heard the most important findings. How would you decide the case? Was the respondent at the time of the wedding a woman? This is a ‘yes’ or ‘no’ decision.

Record the reasons for your decision in the box below.

If you feel that you need more information, read the case report which you can find at: W v W [2000] 3 FCR 748 but do not look at the head note and do not read the final page (p. 783) of the judgment. The question is asking you for your decision; not Charles J’s decision.

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Discussion

Charles J. concluded:

In my judgment having regard to Dr Conway’s evidence if the respondent had been born today the medical decision taken would have been that she should be brought up as a girl. If that decision had been made at the time of the respondent’s birth it would have been vindicated by the respondent’s physical development as a result of her partial androgen insensitivity, her desire from an early age to live as a girl and her final choice to live as a woman before she started taking oestrogen and had her surgery. In my judgment having regard to; (i) those factors, and (ii) the fact that I have concluded that the respondent’s registration as a boy was not warranted by an application of the biological test set and applied many years after her birth in Corbett v Corbett, with hindsight it can be seen that such registration was an error.

On the above approach and thus having regard to; (i) the six factors I have listed, (ii) all my findings under the heading ‘Findings having regard to the respondent’s history and the medical evidence’, and (iii) my conclusion that the respondent had the capacity to consummate her marriage to the applicant, but having regard in particular to; (a) my acceptance of the diagnosis of partial androgen insensitivity, its cause and effect, (b) the respondent’s ambiguous external genitalia, and (c) the respondent’s development which led to her making a final choice to live as a woman well before she started taking oestrogen and before she had surgery in my judgment the respondent was a female for the purposes of her marriage to the applicant.

(pp. 782–3)

In other words, the judge concluded that the original registration of the respondent as a boy on his birth certificate was in error and that she was, and always had been, female. Accordingly, her marriage was valid.

W340_1

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