[1] [1995] 1 NZLR 603.
[2] [1970] 2 All ER 33.
[3] Ibid at 48.
[4] For previous discussion and criticism of the Corbett decision see, for example, D. Green (1970) 'Transsexualism and Marriage' New Law Journal 120:210; E.S. David (1975) 'The Law and Transsexualism: A Faltering Response to a Conceptual Dilemma' Connecticut Law Review 7:288; A. Samuels (1984) 'Once a Man, Always a Man; Once a Woman, Always a Woman - Sex Change and the Law' Medicine and Science Law, 163; J. Dewar (1985) 'Transsexualism and Marriage' Kingston Law Review 15:58; and J. Taitz (1986) 'The Law Relating to the Consummation of Marriage where one of the Spouses is a Post-Operative Transsexual' Anglo-American Law Review 15:141.
[5] 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; Peterson v Peterson The Times 12 July 1985; Franklin v Franklin [1990] The Scotsman, 9 November; Collins v Wilkin Chapman [1994] EAT/945/93 (Transcript); S-T (formerly J) v J [1997] 3 WLR 1287, [1998] 1 All ER 431.
[6] 355 A 2d 204 [1976] 206.
[7] See A Sharpe (1997) 'Anglo-Australian Judicial Approaches to Transsexuality: Discontinuities, Continuities and Wider Issues at Stake' Social and Legal Studies 6(1):23-50.
[8] 293 NYS 2d 834 [1968].
[9] 355 A 2d 204 [1976] 206.
[10] Anonymous v Anonymous 67 Misc. 2d 982; 325 N.Y.S. 2d 499 (Sup. Ct. 1971); B v B 78 Misc. 2d 112, 355 N.Y.S. 2d 712 (Sup Ct. 1974).
[11] MT v JT 355 A 2d 204 [1976] at 206.
[12] Ibid at 209.
[13] Ibid at 206.
[14] 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 H. Benjamin (1966) The Transsexual Phemomenon, NY: The Julian Press, Inc at 13-14, 54; J. Money and C. Primrose, 'Sexual Dimorphism and Dissociation in the Psychology of Male Transsexuals', in Green and Money (eds) Transsexualism and Sex Reassignment, Baltimore: The Johns Hopkins Press (1969) p121-122; R.J Stoller (1973) 'Male Transsexualism: Uneasiness' American Journal of Psychiatry 130:536-9.
[15] 355 A 2d 204 [1976] at 206.
[16] [1977] 400 NYS 2d 267.
[17] Ibid. In this case the United States Tennis Association had required Renee Richards to pass the Barr (chromosomal) body test in order to be eligible to participate in the women's singles of the United States Open. The Supreme Court held that requirement to be "grossly unfair, discriminatory and inequitable, and violative of her rights under the Human Rights Law of this State"(at 272).
[18] Ibid at 271.
[19] Ibid per Dr Money.
[20] [1989] 17 NSWLR 158.
[21] Section 81A NSW Crimes Act 1900 (now repealed).
[22] R v Harris and McGuiness [1989] 17 NSWLR 158 at 193.
[23] Ibid at 194.
[24] Lee Harris and Phillis McGuiness had been approached by a vice squad officer who had requested oral sex.
[25] 13 AAR 314.
[26] Ibid at 320.
[27] Ibid.
[28] Ibid at 317.
[29] [1993] 118 ALR 467.
[30] [1992] 28 ALD 361.
[31] Secretary, Department of Social Security v SRA [1993] 118 ALR 467 at 493.
[32] [1991] NZFLR 337.
[33] [1976] 2 SALR 308.
[34] [1991] NZFLR 337 at 344.
[35] Ibid.
[36] Ibid.
[37] R v Harris and McGuiness [1988] 35 A Crim R 146.
[38] [1991] NZFLR 337 at 348.
[39] Ibid. Interestingly, uncertainty as to whether the determination of sex involves a question of law or fact is apparent in Aubin J's judgment. This is particularly evident in references to the Australian case of R v Cogley [1989] VR 799. In R v Cogley the Victorian Court of Criminal Appeal unanimously held that the determination of sex was "a question of fact to be determined by the jury". For a discussion of this case and the law/fact distinction in the context of transgender sex claims see A. Sharpe (1994) 'The Precarious Position of the Transsexual Rape Victim' Current Issues in Criminal Justice 6(2):303-7.
[40] Ibid at 339.
[41] Ibid at 340.
[42] Ibid.
[43] Ibid.
[44] Ibid at 339.
[45] Attorney General v Otahuhu Family Court [1995] 1 NZLR 603 at 612.
[46] Ibid.
[47] M v M [1991] NZFLR 337 at 347.
[48] See J. Epstein, (1995) Altered Conditions: Disease, Medicine and Storytelling. Routledge. P91.
[49] [1995] 1 NZLR 603.
[50] [1993] 118 ALR 467.
[51] Ibid at 493.
[52] This view of the female body is traceable to a body of liberal theory and perhaps most notably to the writings of Immanuel Kant (The Metaphysics of Morals). See Ngaire Naffine (1997) 'The Body Bag' in N. Naffine and R. Owens (eds) Sexing the Subject of Law. Sweet and Maxwell. p79-93.
[53] Ibid.
[54] Attorney-General v Otahuhu Family Court [1995] 1 NZLR 603 at 604.
[55] Ibid at 614-615.
[56] Ibid at 612.
[57] Ibid.
[58] Ibid at 615.
[59] Ibid at 607.
[60] Ibid at 615.
[61] Ibid at 614.
[62] Ibid at 607.
[63] Ibid at 615. While such a view was articulated by the Social Security and Administrative Appeals tribunals in the Australian decision of Secretary, Department of Social Security v SRA (above note 30) the judgment of Ellis J represents its first airing by a superior court within a common law jurisdiction.
[64] Ibid at 629.
[65] Ibid at 612. Of course, the shift from sexual function to bodily aesthetics evident in Attorney-General v Otahuhu Family Court is perhaps unlikely to be followed in common law jurisdictions where consummation continues to play an important role in determining marriage questions.
[66] Ibid at 619.
[67] See D. King (1993) above note 21. 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 (1986) Conundrum: An Extraordinary Narrative of Transsexualism. NY: Holt).