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Transsexualism in Family
Law and Property Relationships
Litigation
Rachael Wallbank BA LLB ACCSPEC (FAMILY
LAW) LSNSW, NSW AUSTRALIA
Explore Family Law in 2004 - 11th National
Family Law Conference; Beyond the Horison;
26th-30th September 2004
Transsexualism - A
Cultural Response
Transsexualism is a form of human diversity in
sexual formation, reported since antiquity, in
which an individual has a compelling need to alter
the individual’s sexually differentiated body
in order to bring it into sexual harmony with the
individual’s innate sexual identity; an
individual’s neurological or ‘brain’
sex. It is now generally accepted amongst experts
that further research will confirm the preliminary
neurological observations, and the hypothesis, that
as for the animal brain, the human brain
differentiates as to sex (female or male) in the
same way as the other sexually differentiated
features of the human body.1
(Appendix A is a diagrammatic representation
of the process) Transsexualism has historically
prompted a diverse range of cultural responses;
from the fear/shame/blame response typical of
recent ‘Western’ cultures, such as our
own, to acceptance, privilege and even honour in
ancient and more contemporary ‘natural’,
non-western or tribal
cultures.2
To seek to appreciate transsexualism, and the
journey of the relationship with our culture that
people with transsexualism are undertaking, is to
witness an experience of difference. As we all seem
to be called upon to deal with our own and
other’s difference in our lives, the
appreciation of difference, and its power to both
enrich and destroy, can be no bad thing.
Our culture, perhaps influenced by its
Judeo/Christian heritage, has responded to
transsexualism with its most formidable social
armoury: mystification, ridicule, ostracism and
physical violence. People who experience
transsexualism have been thus culturally
characterised as curious (almost sub-human)
aberrations who are mentally ill and/or simple
minded and/or perverted; with either no hope of
recovery or(perhaps worse still) with a real chance
of being successfully
treated/counselled/healed/saved and returned to the
safe haven of the particular version of normality
on offer from that particular healer. Hence, the
media portrayal of drag queens, transvestites and
cross-dressers as representative of people with
transsexualism and the confusion between the
phenomena of transgender expression, mental
illness/Gender Identity Disorder
(“GID”)/Gender Dysphoria and
transsexualism3.
While there might be no more than about 5,000 to
10,000 people with transsexualism in
Australia4, they generally have
families and often have children. Many people with
transsexualism in the world (together with their
family members and loved ones) still live out their
lives in secrecy because of their fear of how
society (and their neighbour) will deal with them
in the event that they disclose the existence, or
the history, of their transsexualism. This
predicament, or survival method, is termed
‘stealth’ and is a version of
"passing".5 The bargain of
choosing to live a false existence in order to live
free of physical harm and/or prejudice that is the
act of ‘passing’ should be familiar to
most as it is something most of us are obliged to
do in intermittent and small ways on a daily basis
to satisfy our culture’s rapacious demand for
conformity. The general illness of our 21st century
‘western’ culture deserves discreet
treatment. Thankfully, for most of us, the price
paid for our ‘passing’, and the stakes at
risk, are not nearly as high as for people with
transsexualism; and especially the children.
Nevertheless, it is the same act of desperate
demeaning ‘passing’ undertaken by an
Aboriginal Australian of ‘mixed’ blood,
who can ‘pass’ as ‘white’, who
refrains from revealing her/his Aboriginal
background in anticipation of the loss of safety,
relationship, society or employment.
For a variety of reasons, including culturally
cultivated shame, ignorance, the desire to
procreate and good intensions, many people with
transsexualism only affirm their innate sex (or
brain sex)6 after they have
married, formed de facto relationships and/or borne
children in their first assigned sex. While their
spouses/partners are likely to have some inkling or
knowledge of an individual’s transsexualism,
her or his sex affirmation may well come as a shock
to children, parents, other family members,
in-laws, workmates, colleagues and employers. The
reaction to the revelation of an individual’s
sex affirmation can range from appreciation and
support to condemnation and rejection in a culture
where, at worst, ignorance of transsexualism is
rife and, at best, ‘mixed messages’ as to
transsexualism are given.
Significant parenting and social issues can
accompany a parent’s sex affirmation. Sex
affirmation, often occurring at or near separation,
can result in a substantial loss of income, if not
gainful employment, for the person with
transsexualism. The total medical costs of sex
affirmation treatment7 (still not
publicly funded in Australia through Medicare) can
amount to approximately AUS$50,000.00. People with
transsexualism die or their lives are abused and
degraded by their efforts to find the price of such
treatment. As normal employment is often lost as a
result of an individual’s sex affirmation,
many younger people with transsexualism tun to
prostitution or other crime in their desperation to
fund sex affirmation treatment. Many, too
old for prostitution, ostracised by family, friends
and culture and without the monetary means to
attain treatment for their transsexualism, uffer
severe depression, self-harm and often take their
own lives. Difference can be a health hazard. Shame
kills.
Children and adolescents with transsexualism
suffer a worse fate still in their dependency. The
voices of these young people, from pre-puberty to
adulthood, clearly stating their predicament and
seeking help, are too often ignored and/or
ridiculed; not only by their parents and family
members (upon whom they rely for approval and a
healthy sense of self) but by well-meaning members
of the medical, psychiatric, legal and health care
professions; many of whom have anachronistic
‘disorder’ concepts of transsexualism if
at all.
In order to receive treatment for their
transsexualism, such young people (and their
parents/guardians) must negotiate their way through
the malaise of outdated medical and legal
categorisations of childhood and adolescent
transsexualism; which both mystify and pathologise
their diagnosis and prejudice their treatment. In
Australia, as a result of the recent decision
Re Alex – Hormonal Treatment for Gender
Identity Dysphoria 2004 Fam CA 297
(“Re Alex”), young
people with transsexualism and their
parents/guardians are now required to obtain the
approval of the Family Court of Australia,
exercising its child welfare jurisdiction, before
they can receive established nonsurgical and
hormonal treatment for the condition pending
surgery in adulthood. Before Re Alex such treatment
was previously available with parental consent upon
diagnosis by medical
practitioners8.
Once such treatment is commenced, it is
typically focused upon the individual with
transsexualism and rarely includes comprehensive
ongoing social intervention, guidance and support
for the young person, the young person’s
family and school/social network. Instead, once
treatment for transsexualism is approved and
undertaken, while the young person and the
parents/family may receive counselling and support,
it is likely that the interaction of the young
person (who has now transitioned public sex or
gender) with school and other social networks will
be left to chance. This situation encourages
families to move away from established social
supports and to adopt ‘stealth’ and
‘passing’ as a way of life; with all its
social and familial disability and harm. Help with
social adjustment is of equal importance to medical
treatment in order to ensure the child’s
healthy experience of transsexualism; not to
mention the needs of her/his parents, family,
school and society.
A young person with transsexualism will not
always wait upon the permission of parent/s,
guardian, doctor and court to commence to live out
or affirm his or her innate sexual identity
resulting in a life crisis for the young person
with transsexualism and her or his family occurring
in the absence of adequate established legal,
social and medical structures or support systems.
The experience of transsexualism, for children and
adults alike, and even in a culture as
compassionate as that of Australia, is the
experience of an ongoing significant and sometimes
life-threatening personal, social, medical and
legal crisis; made worse by a lack of public
funding for medical treatment, a pervasive
ignorance and/or misconception amongst members of
the medical professions as to the nature of
transsexualism and its treatment and the
misconceived imposition of legal impediments to
that treatment.
The predicament of medical ignorance in respect
of transsexualism is exacerbated by the reality
that those few medical practitioners and health
care professionals (psychiatrists, psychologists,
endocrinologists, surgeons and social workers) who
have chosen to apply themselves to this area of
practice have suffered professional stigma by
association with their patients. There have been
several recent media campaigns and medical
investigations undertaken which continue to
question the medical ethic of practitioners
involved in the treatment of transsexualism; both
in Australia and in the United
Kingdom.9 These media inspired
exposés and medical investigations seem more
motivated by the demands of religious and other
self-serving extremists who seek to challenge the
veracity of sex affirmation treatment (and
particularly sex affirmation surgery) per
se, than the goal of improving services to patients
who experience transsexualism.
NSW Health is aware of problems concerning the
lack of general medical awareness and professional
stigma concerning transsexualism and, I hope, will
shortly receive funding to enable it to establish
an independent centre of excellence for the
research and treatment of transsexualism. It is
hoped to thus facilitate both the spread of
information and expertise amongst medical
practitioners concerning transsexualism and the
de-stigmatisation of medical professionals who work
with the phenomenon; while promoting the same
approach elsewhere10.
Increasingly, in Australia and elsewhere,
everyday legal and human rights, both fundamental
and otherwise, are dependent upon a person’s
legal identity as assigned and as recognised by the
state; including the person’s assigned sexual
identity or legal sex. Increasingly we are being
required to produce formal documentation, such as
passports, which evidence our assigned sex, in
order to undertake even domestic travel and in
order to prove who we are. In Australia and
elsewhere, a number of legal rights, remedies and
jurisdictional issues are determined by whether the
relationships citizens have are between individuals
of the same or different sexes and hence whether
the citizens concerned are male or female.
The legislative results of attempts to
facilitate the correction and/or re-assignment of
legal sex, though well intentioned, have often been
misconceived and/or based upon a mental illness
model of transsexualism and have consequently
failed to deliver true justice and an equality of
human rights and/or have placed unreasonable and
inhumane conditions upon the exercise of that
right; such as the ending of a successful and
enduring marriage.
The Commonwealth of Australia and it’s
States have no uniform legislative approach to
intersexual rights (including those of people with
transsexualism) and the reassignment or alteration
of the legal sex of such
individuals.11 The recent
legislation in the United Kingdom, The Gender
Recognition Act 2004, is firmly based upon
a ‘disorder’ model of transsexualism and,
while failing to enable applicants to actually
effect a comprehensive re-assignment of their legal
sex (only their gender) so as to attain
unconditional equal rights in their affirmed sex,
requires such people to actually medically evidence
the diagnosis of the disorder of Gender
Dysphoria or Gender identity Disorder in
order to do so.
A lawyer providing advice to any person with an
intersexual condition, including transsexualism,
should be able to identify and distinguish between
an individual’s predominant biological
sex, legal sex (the sex
evidenced by the birth certificate) and
common law sex (the sex
declared/declarable by a court for certain
purposes).
That is no easy task in a world where biological
sex is increasingly being recognised as diverse and
multidimensional (making understandable the
existence of intersexual human beings), where the
assignment of legal sex can be
mistaken and corrected and where, while an
individual’s legal sex can be different from
his or her biological and/or common law sex, the
law and the culture only recognise male and female
citizens. By the Sydney Olympic Games chromosomal
sex testing had been abandoned due to the
acceptance by the IOC that there were simply too
many genuine female athletes who possessed
“Y” chromosomes competing. Greece is the
first Olympics to permit people with transsexualism
who have undergone sex affirmation surgery to
compete in their affirmed sex. The use of the term
‘same sex couples’ by the Commonwealth
Government in proposed (at the time of writing)
legislation to prohibit certain adoptions by such
people becomes problematic in respect of
interpretation and application. Is the term
intended to refer to legal, predominant biological
or common law sex. In the absence of a definition
within the legislation, one would be entitled to
presume the later.
The role of the lawyer becomes more subtle still
as one begins to expand the possibilities of
intersexuality in human beings while accepting that
the question of whether one is able to live a
reasonable life as a male or a female is ultimately
determined by one’s brain-sex differentiation
rather than the appearance of one’s genitalia
and/or other sexually differentiated body parts. To
quote Professor Milton Diamond, concerning
biologically derived sexual identity:
“It’s what’s between the ears that
counts and not what’s between the
legs”.
And while a more subtle appreciation of the
biology of sexual determination may assist, the
lawyer must remain aware that the test for the
determination of an individual’s legal and
common law sex (and whether an individual’s
legal sex can be re-assigned) are each different
again from those concerning an individual’s
biological sex and are as much a cultural as they
are a biological consideration. To quote Justice
Richard Chisholm (as he then was) in Re
Kevin: Validity of Marriage of Transsexual (2001)
28 Fam LR 158; [2001] FamCA
107412:
“…the fundamental task of the
law…, in a legal and social context that
divides all human beings into male and female, is
to assign individuals to one category or the other,
including individuals whose characteristics are not
uniformly those of one or other
sex.”13
As we permit transsexualism to be perceived in
our culture as an natural aspect of human
diversity, rather than a disorder, increasing
numbers of people with transsexualism of all ages
(and their parents/families/loved ones) will seek
the help of family lawyers to pursue their legal
and human rights in respect of issues relating to
relationships, wills, estates, discrimination and
identity.
A lawyer who seeks to act for a person who has
experienced an intersexual formation (including
transsexualism) will need to become familiar with
difference.
The Power of Language
The ability to find meaning in language and the
interdependent ability to be understood by others
are essential aspects of a reasonable life.
A culture, no less than an individual,
confronted with an aspect of itself which it fears,
will seek to deny that aspect’s existence.
Language is one of the most effective ways in which
a culture may seek to colonise, trivialise and
ultimately obliterate the meaning of a thing.
Transsexualism, which challenges our culture’s
extremely sensitive, insecure and fearful
understanding of diversity in sexual formation and
identity, has naturally been a prime target for
this treatment and has been traditionally deprived
of both sensible language and meaning. Some
consciously seek to deny or distort the reality or
meaning of transsexualism for the purposes of the
advancement of their own causes.
For a striking example of cultural denial or
conscious ignorance hard at work see Appendix
C which contains a 2002 BBC news report of the
discovery of the beautifully attired remains of a
Roman priestess who had undergone the 4th century
AD equivalent of sex affirmation treatment but who
is determinedly denied both female sex and
transsexualism by both senior archaeologist and
reporter. For a contemporary Australian example of
these phenomena of language one need only review
the reportage of the Re Alex decision
where Alex is repeatedly referred to as a
‘female/girl’ who ‘wanted to’
be able to live ‘as a male/boy’. There is
no legitimacy here for Alex as male/boy or any
effort to discuss the implications of the young
person’s transsexualism that might provide
that legitimation. Some academic and other works
have evidenced a similar theme. The CCH
Australian Family Law – Family Law News
issue 457 (7th June 2004) www.cch.com.au
reports Re Alex with the seemingly
light-hearted heading “Girls will be
boys”. The possibility that Alex, like
Kevin and other males with transsexualism, might
simply trust us to hear the truth of their inherent
masculinity is utterly foreclosed in the
astoundingly confident entreaty called
“According to Merit? When being a girl is
not enough” by Susan Borg, Melbourne
barrister and sessional member of the Victorian
Civil and Administrative Tribunal, a part-time
member of the Migration Review Tribunal and a legal
member of the Psychologists registration Board of
Victoria, which was published (without comment) by
the Journal of the Law Institute of
Victoria.14 Susan Borg knows
without a doubt what Alex’s problem really is,
and it does not have to do with Alex’s
assertion of his being male. Oh no! In her law
journal article Borg sets out the predicament, as
she sees it, with the question: “So what makes
a 13-year-old girl like “Alex” hate her
female self to the extent that she actively seeks
to begin the process of changing her sex to that of
a man?” Borg goes one better than the CCH
headline by having “Alex”
‘change’ from ‘girl’ to
‘man’.
The language traditionally used to describe
transsexualism, and the people who experience the
phenomenon, firmly grounded in the
‘normal’, has defied and misrepresented
the actual experience of transsexualism which has
been made further inaccessible by its being
dominated by technical medical discourse.
While people with transsexualism have been
hidden and silenced, transgender and Intersex lobby
groups have been visible, active and effective.
Hence the popular community consultation acronym
“GLBTI” for Gay, Lesbian, Bisexual,
Transgender, Intersex. While it is important enough
to distinguish gay, lesbian and bisexual
sexualities here, transsexualism is presumed to get
a voice in the generalised “transgender’
or the medical construct “Intersex”.
Given the attitude of some Intersex groups and
medical practitioners to people with transsexualism
and the distinct and different law reform and
societal interests of people who experience
transsexualism and those who express gender in a
transgender way, the distinct voice of people with
transsexualism tends to be lost or confused.
While that medical discourse has varied over
time (to the extent that it has from time to time
sought to truly hear and reflect the stories of
people with transsexualism rather than to shape
those stories to fit its own purposes and
presumptions), it came to be itself dominated until
very recently by Freudian inspired psychiatry and
psychoanalysis which, while offering no sustainable
explanation for the existence of transsexualism and
psychiatry’s inability to
‘treat’/eliminate/fix the phenomenon,
objectified, pathologised and infantilised the
people who experienced it; in the process
projecting a special genitocentrism and biological
fundamentalism that proceeded to colonise and
dominate the law in respect of transsexualism as
epitomised by the English decision of Corbett
–v- Corbett (orse Ashley)
[1971] P83
(“Corbett”).
I say ‘a special
genitocentrism’,15 because
the genitocentric determination of the
‘biological sex’16 of a
human being espoused in Corbett still seems to have
the singular ability to attract the fervent support
of such apparently disparate folk as the radically
religious and the radically feminist long after
others have abandoned it. The one uniting factor or
opinion at work here, and which was the cornerstone
of the Corbett decision and the
subsequent chain of decisions that relied upon the
scientific legitimacy of Corbett, is
the proposition that the biological
‘truth’ of an individual human
being’s sexual identity may be discerned by
only one means - the appearance of the
person’s genitalia at birth - no matter what
the individual says of her/his own sexual identity,
the evidence for the sexual differentiation of the
human brain, what changes occur to the
individual’s body (including the genitalia)
during a lifetime or how that lifetime is lived.
Even though the decision in Corbett
espouses a ‘biological test involving
chromosomes as well as internal and external
genitalia, the reliance on genitalia is confirmed
in the decision’s refusal to deal with the
question of the common law sex of people with
conditions of genital intersex.
It is ironic to observe the same feminists who
would have been presumed to have proclaimed loudly
with their sisters “I am not my body!”
adhere to anatomical fundamentalism with regard to
transsexualism17. It is ironic
that the same religious people who strongly
maintain the sanctimony of marriage, support (or do
not condemn) legislation (like that of NSW,
Victoria and other Australian States) which compels
a couple (whose marriage has been marvellous enough
to endure a spouse’s transsexualism) to end
that marriage with divorce in order for that spouse
to have a legal identity consistent with his or her
physically affirmed sex.18 The UK
Gender Recognition Act 2004 makes such a
marriage suddenly and automatically voidable on the
application of either party.
Nevertheless, the presumption that one is the
sex indicated by one’s genitalia is a subtle
and deep-seated one. Even legislation drafted to
enable people with transsexualism to re-assign
their legal sex to bring it into conformity with
their physically affirmed sex commonly define sex
affirmation (re-assignment) surgery in terms of
“…assisting a person to be considered to
be a member of the opposite
sex…”19; where
‘opposite sex’ is used to denote a
presumed pervasive biological truth evidenced by
the original assignment of a person’s sex
based solely upon the appearance of external
genitalia.
The determination of the biological sex of an
individual whose external genitalia have an
appearance at birth which is sexually inconsistent
with the individual's chromosomal formation and/or
gonads or which has the characteristics of both
male and female genitalia, is problematic under
this genitocentric regime and is said to be neither
male nor female but rather hermaphroditic; more
recently termed
‘Intersex’20.
This limited approach, which is inconsistent
with the culture’s insistence on people being
either male or female, caused problems too for
courts charged with the determination of whether
such an individual was legally male or female; when
at law there is no ‘third’ or
‘other’ legal space available in terms of
sexual identity21.
Until recently, this genitocentric vision of
biological sex and sexual identity has so dominated
our cultural psych, that transsexualism, as an
example of intersexual variation in human sexual
formation with no gross genital insignia, simply
did not exist as a recognised biological,
physiological or organic phenomenon and no
language, whether medical or cultural, existed with
which to describe it thus. While the discourse of
expert medical science was, by the commencement of
the Re Kevin proceedings, clearly
speaking of intersexual phenomena in general, and
transsexualism in particular, as examples of
diversity in human sexual formation rather than
aberration or disorder, general medical and
legislative language continued to be genitocentric
and to distinguish ‘psychological’ from
‘biological’ in respect of sexual
formation, determination and identity.
Language remains a challenge for those seeking
equal human rights for people with transsexualism,
their families and loved ones; containing such
misleading and misrepresentative terminology as
‘sex change’ and ‘sex change
surgery’ to describe one aspect of the medical
treatment for transsexualism - but in doing so
defining and characterising the phenomenon itself.
People with transsexualism are still burdened with
the misconceived, misleading and monistic
psychiatric diagnoses of Gender Dysphoria or
Gender Identity Disorder (“GID”)
derived from the outdated medical presumption that
the assertion by an individual of a sexual identity
contrary to the sex indicated by their genitalia,
gonads and chromosomes accompanied by a sustained
and compelling expressed need to alter their bodies
to obtain sexual harmony with that identity must
indicate disorder and/or illness.
In response to this predicament of language and
the mystification of transsexualism, there is a
need to adequately distinguish between
transsexualism and other phenomena such as
transgender expression, transvestism,
cross-dressing and sexuality, as well as mental
disorders properly described as Gender
Dysphoria/GID, and to develop a better cultural
appreciation of the shared biological continuum
occupied by transsexualism and other intersexual
variations in human sexual formation. To do so is
not to seek to devalue or offend any such group,
but to better express the true diversity of
humanity in respect of sexuality, gender
expression, sexual identity and mental health.
The answer to the challenge of language, as for
so many ‘liberation/rights’ movements,
has been to seek to create new language and
terminology which better reflect the experience of
people with transsexualism and its causation. The
result is a new language concerning transsexualism
which is in the process of being developed and
adopted domestically and internationally in a
similar manner to the legal and human rights
findings of the Re Kevin decision
itself.22 I have sought to both
use and explain this affirmative language in this
paper.
Terminology
At this point, it is useful to summarise and
discuss the terminology used in this paper:
- The human brain differentiates as to sex
(“brain sex”, “mental
sex” or “innate sex”)
in the same basic way as the other sexually
differentiated features of the body; such as the
gonads and external
genitalia23 as demonstrated in
scientific examination of animal, and human,
brains.24
The brain sex of an individual
develops as a biological process independently
of the individual’s other sexually
differentiated features. Such innate knowing of
one's sex was commonly referred to as
"psychological sex" and sometimes differentiated
from “biological sex”;
In the absence of mental ill health, an
individual’s brain sex is the sex
which the individual perceives the individual to
be (self perception, or knowing, of one’s
innate sex);
- Transsexualism is the predicament
experienced by an individual when the sex
generally indicated by the sexually
differentiated features of the individual’s
body or phenotype (and hence the
individual’s external genitalia and the
legal sex consequently first assigned to that
individual) are incongruous, or at odds with,
the individual’s innate or brain
sex.25
- When an individual with transsexualism
publicly reveals or affirms their innate sex,
they can be said to have transitioned
public sexes or to have undertaken the act of
sex affirmation.
- Medical science now recognises that
transsexualism is a form of
intersex;26
The Macquarie Dictionary defines
intersex as "an individual displaying
characteristics of both the male and female
sexes of the
species.27Transsexualism is
readily diagnosed by medical practitioners
familiar with the predicament and is a
biological predicament of human sexual formation
(and not a psychological one).28
- Thus, it is both factually and
scientifically accurate to assert that
transsexualism is a form of intersex and that it
is now recognised in medical science as such.
Transsexualism describes a condition in which an
individual experiences the predicament of having
a brain which has sexually differentiated to one
sex while having the balance of his or her body
sexually differentiated to the other sex. It is
now accepted ‘best medical practice’
that where an intersexual condition is detected
at or near birth then the assignment of that
individual’s legal sex should be postponed
until, or such assignment takes place on a
provisional basis only to be later affirmed or
reversed on the basis of, the disclosure or
affirmation by the individual of the
individual’s innate or brain
sex;29
- The only successful medical treatment for
the predicament of transsexualism is to
harmonise the sexually differentiated features
of the individual's body with the individual's
innate or brain sex so that the individual can
experience sexual unity. The Macquarie
Dictionary defines
‘transsexual’ as "one who has
undergone a sex change operation"; indicating
that it is this aspect of transsexualism that
distinguishes it from
transgender/transvestism/cross-dressing and
other such phenomena primarily associated with
gender expression.30
- Sex affirmation treatment,
properly undertaken, involves both medical and
social intervention. The medical treatment of
children with transsexualism consists of the
administration of chemical ‘blockers’
to delay puberty with the conservative
administration of reversible and, with
adolescence, irreversible hormonal treatment to
alter the sexual hormonal balance in order to
harmonise physical appearance with sexual
identity.
With the development of medical science
consideration should be given to the optional
preservation of in vitro reproductive capacity.
With adulthood the individual is free to undergo
surgical intervention to complete the physically
rehabilitative process of sex affirmation
treatment with irreversible surgery to the
individual’s sexually differentiated bodily
features. Of almost equal importance is enabling
and empowering people with transsexualism and
their families etc on the one hand, and their
social environment (from school yard to general
practitioner to the general public) on the
other, to experience the difference of
transsexualism in a healthy manner.
- The aspect of sex affirmation treatment
involving surgical intervention is referred to
as sex affirmation surgery (SAS).
This surgery has been/is also somewhat
genitocentrically referred to as “sex
re-assignment surgery” or
“SRS”)
- The nature and extent of sex affirmation
treatment differs between affirmed females and
males with transsexualism. Such treatment is
rehabilitative in purpose and, therefore, does
not require results that are either cosmetically
or functionally ‘perfect’ or complete
in order to be considered
successful;31 Some aspects of
hormone treatment alone can cause irreversible
changes to the body.32
- Australian culture, in common with most
others, perceives and requires its members to be
either male or female. Different cultures
associate certain distinctive characteristics of
dress and behaviour with each of the two sexes.
Gender is the cultural construct of sex.
An individual’s gender expression or
presentation is the cultural expression of
sexual identity, based upon, but not limited to
stereotypical representations of masculine and
feminine. A person’s gender expression or
gender identity can signal o
others not merely the sex to which that
individual belongs, but complex permutations of
femininity, masculinity and other reaching
across and beyond the culturally conceived
gender continuum.33 Thus, to
give either ‘sex’ or
‘gender’ the full potential of their
meanings it is necessary to distinguish between
the two; rather than using the word
‘gender’ as a euphemism for the word
‘sex’.
- Transgender has come to be used to
encompass anyone whose expression of gender or
gender identity is at odds with their legally
assigned or genital sex; be they homosexual or
straight cross-dresser, drag queen, gender
liberationist or intersexual. In this guise the
word, though politically correct and safely
imprecise, is worse than useless as it is
misleading in suggesting that the various people
included have something significant in common.
The word "transgender" was, in fact, coined by
married heterosexual cross-dresser Charles
(Virginia) Prince in the United States of
America to distinguish a transgender person, who
had no compelling need or desire to permanently
and significantly change or alter their body but
who wished to live out a gender expression
contrary to their sex, from a person who
experienced transsexualism.34
The word transgender is most clearly utilised as
describing a behavioural phenomenon where an
individual’s gender expression
(gender identity) is at odds with
their innate sex (sexual
identity).35 For people
who express transgender no fundamental
incongruity or conflict exists between the
sexually differentiated features of the
individual’s body and the individual's
brain sex and legal sex. Hence, even while
expressing a contrary gender, the transgender
individual does not require or desire full sex
affirmation treatment, and certainly not sex
affirmation surgery; even though some will use
hormonal and cosmetic treatment to enhance their
transgender expression. Transgender individuals
express gender contrary to their assigned sex
without a desire to physically affirm a sex
contrary to their assigned
sex.36 Many people do the same
thing on an occasional basis. While many people
with transsexualism are conservative in their
gender expression, some people with
transsexualism also express their gender in a
transgendered way.
- It is sometimes forgotten by those who would
confuse transsexualism and
transgender (and consequently
advocate that there should be no precondition of
bodily reformation by sex affirmation treatment
and SAS associated with the reassignment of
legal sex or the recognition of common law sex)
that people who experience transsexualism will
undergo, and throughout human history have
undergone, conclusive sex affirmation treatment
including SAS irrespective of the law or legal
consequence.37 People who
experience transsexualism undergo such
treatment, with all its difficulty, for its own
sake in order to sustain their lives. As a
matter of human rights this essential medical
treatment should be, but is not, funded by the
state in Australia through Medicare. (currently
approximately AUS$40,000.00 to $50,000.00) as a
result.
- In Australia, an individual’s legal
sex is the sex to which the individual is
assigned pursuant to the record of the
particulars of the individual’s sex
contained in a register or public record of
births, deaths and marriages maintained in each
State and Territory and published as, or
evidenced by, the individual’s “Birth
Certificate”. An individual’s legal
sex is most often first assigned at or near
the birth event on the basis (only) of a casual
inspection of the individual’s external
genitalia. For the great majority of Australians
the presumption that an individual’s brain
sex is in accord with the sex indicated by his
or her external genital formation is an accurate
one. For Australians who experience
transsexualism, and some other intersex
conditions, that is not the case. In fact, for
people who experience transsexualism, and some
other intersex conditions, our system for the
first assignment of legal sex guarantees that
they will be assigned to the ‘wrong’
legal sex;
- Once people with transsexualism have
undergone conclusive sex affirmation treatment
(and thus their ‘trans-ing’), such
people increasingly refer to themselves as a men
or a women of transsexual background; a
man or woman who has undergone treatment for the
intersex condition of transsexualism who can now
seek to live a full and fulfilling life
consistent with their innate sex.
- The medical and legal recognition of the
sexual differentiation of the human brain has
justified or ratified the experience of
transsexualism as natural (if not
‘normal’) and enabled a human
being’s affirmation as to their sexual
identity as either female or male to be given
greater weight than mere physical
characteristics of bodily formation, such as the
genitalia, in determining an individual's
biological, legal and common law sex.
The Causation Debate
Historically there have been three competing
‘nature verses nurture’ explanations
advanced by medical science and psychiatry for the
cause of transsexualism:38
- The Non-Conflictual Psychological
Theory - where transsexualism is seen as a
pathology (a mental illness, confusion or
disturbance of a normal psychological
development of sexual identity) where sexual
identity is precociously fixed and untreatable
except by assisting the sufferer to live as well
as possible with the pathology from which he or
she suffers; and
- The Conflictual Psychological Theory
- where transsexualism is seen as a pathology (a
mental illness, confusion or disturbance of a
normal psychological development of sexual
identity) where sexual identity is not fixed and
continues to remain ambiguous throughout
development and is thus treatable by
psychotherapy; and
- The Biological Theory – whereby
observations on the sexual dimorphic character
of the brain in animal studies (and lately some
human studies) proposes that a human
being’s sexual identity derives from the
sexual differentiation of human brain as to
either the male or the female sex, in the same
way as the other sexually differentiated aspects
of the human body such as the genitalia, and is
fixed and unalterable by the completion of
infancy at the latest irrespective of social
environment;
Transsexualism as a particular category of
pathology or mental illness (“gender dysphoria
syndrome”) was included in the United States
of America Psychiatrist’s Diagnostic and
Statistical Manual of Mental Disorders, edn III
(DSM-III) in 1980, but was then removed from the
DSM-IV in 1994 when it was assimilated/subsumed
into the more general category of sexual and gender
identity disorders. This significant change in the
way psychiatry perceived transsexualism coincided
with the removal from the DSM (after significant
political and medical lobbying) of homosexuality as
a pathology or mental illness or
disorder.39 The DSM-IV (See
Appendix E) changed the professional
psychoanalytic view that there was a difference
between transsexualism and Gender Dysphoria/GID
while at the same time providing a radically new
differential diagnostic criteria for children and
adults with transsexualism.40
As a consequence of this alteration to the DSM,
people who experience or exhibit all types of
non-normal behaviour in respect of sexual and/or
gender expression are now grouped together by
psychiatry in the DSM-IV.41 In
particular, this change to the DSM IV enabled
psychiatry to continue to ‘legitimately’
treat (try to change to heterosexual/normal)
homosexual children whose parents find their
behaviour unacceptable; even though adult
homosexuality is no longer able to be legitimately
treated as a mental illness.
Thus, the criteria for the diagnosis of
Gender Dysphoria /GID in childhood contained
in the DSM IV includes children with severe mental
disorders, those who merely transgress accepted
norms of gender expression such as those who
exhibit transgender/cross-dressing
behaviour/effeminate/tomboyish and those who are
homosexual as well as those who experience
transsexualism.42 This consummate
vagueness of diagnostic criteria enables
psychiatrists to continue to give the contradictory
evidence (as they do in Re Alex) of the uncertainty
of the diagnosis of Gender Dysphoria/GID in
childhood and adolescence and to express doubt as
to whether a child with that diagnosis will develop
adult transsexualism; while still identifying,
diagnosing and treating transsexualism in children
and adolescence.
The best of these practitioners will admit, as
they did in Re Kevin, that in
practice transsexualism is self-diagnosed and
medically confirmed by ruling out other phenomena
such as mental illness or delusional disorders and
physical intersex; rather than actually identifying
the causation of a person’s transsexualism. It
is misleading and confusing to maintain a
distinction between childhood and adult
transsexualism and/or the possibility that there
are varying degrees of a conglomerate phenomenon
encompassing Gender Dysphoria/GID and
transsexualism. Hence the creation of such further
misleading terms as “extreme GID” and
“extreme Gender Dysphoria” by some
experts seeking to deal with the inclusion of
transsexualism within the diagnostic hotchpotch of
Gender Dysphoria /GID.
In Re Alex, after expressing
himself to be uncomfortable with the term
‘disorder’ as applied by the psychiatric
experts to Alex, Chief justice Nicholson (as he
then was) created his own new hybrid term for
transsexualism in the young, ‘Gender
Identity Dysphoria’43 ,
and used it as part of the title of the case. Any
reading of the decision indicates, however, that of
all the participants in Re Alex, Alex
himself was the least confused (or dysphoric) about
his sexual identity.
Psychiatrists and psychologists have come to
rely upon the DSM terminology, notwithstanding its
difficulties, so as to give legitimacy and
professional protection when diagnosing
transsexualism; especially in children. The reality
is, however, that the real diagnostic process
applied by psychiatry and psychology in the
diagnosis of transsexualism, in both adults and
children, is to rule out illness as an explanation
for the phenomenon. The psychiatric evidence in
Re Kevin, for example, confirmed
Kevin’s transsexualism by satisfying itself
that his experience of himself as male in the face
of the evidence to the contrary was not as a result
of mental ill health, confusion or
delusion.44
The fact is that psychiatry, while
‘observing’ and interacting with
transsexualism over many years, has never been able
to either adequately explain or ‘cure’
it. The dominant role of the endocrinologist,
rather than the psychiatrist, in the treatment of
transsexualism has long been recognised. Given the
serious and sometimes irreversible nature of sex
affirmation treatment, it is necessary for
psychiatry to play its role in limiting treatment
for transsexualism to those who experience it and
at the same time to assume more responsibility in
the task of enabling all people with transsexualism
(children and adults), their families and love ones
to experience the difference of transsexualism in a
healthy way.
There is a developing campaign supported by
diverse human rights groups, people with
transsexualism and members of the medical and legal
professions to remove transsexualism from the DSM
as was achieved with homosexuality. Certainly,
people with transsexualism will tell you they have
never experienced Gender Dysphoria or any
confusion about, or unhappiness with, either their
gender or sexual identity. On the contrary, the
experience of transsexualism (in the absence of any
other phenomena or illness) is the experience of
certainty and congruity as to both such identities
in spite of all else. This is not to say that
Gender Dysphoria and/or GID does not
exist as a pathology or disorder. It is only to say
that it is mistaken to include transsexualism
within the same ambit.
It is hard to better the clarity and detail of
the discussion of the competing expert explanations
for transsexualism, including the phenomena of the
sexual differentiation of the human brain, carried
out by Justice Richard Chisholm in his reasons and
decision in Re Kevin45.
For convenience I set out his Honour’s primary
conclusions inrespect of that expert evidence in
Appendix F which confirm and explain the
overwhelming dominance of the biological
explanation of transsexualism in both medical
science and the law.
There will be no conclusive ‘scientific
proof’ of the causation of transsexualism
until medical science can identify and ratify the
sexual differentiation of the human brain and/or
genetic identifiers for transsexualism in living
human beings. In the meantime, I find it curious
that a sane person’s own consistent ‘say
so’ as to whether they are male or female
backed by a consistent need and willingness to
undergo sex affirmation treatment in order to live
and physically affirm that sexual identity should
not be more than adequate to confirm the biological
nature of transsexualism for all practical and
legal purposes.
Conflicting Australian Case Law
Re Kevin was both a turning point,
and a culmination, in the history of the
development of the human rights of people with
transsexualism, their families and loved ones; both
domestically and internationally. I said publicly
at the time that the decision demonstrated the
significant capacity of the Australian justice
system to manage difference. In Re Kevin, the
Applicant husband and wife successfully contended
that, notwithstanding the husband’s
transsexual background, the husband was entitled to
be married as a man because he was a man within the
meaning of that expression in section 46(1) of the
Marriage Act and section 43 of the
Family Law Act at the time of his
marriage. Justice Chisholm's original decision,
granting a Declaration of Validity of Marriage was
delivered on 12th October 2001. The appeal before
the Full Court of the Family Court of Australia was
heard on 18th and 19th February 2002. The Full
Court consisted of their Honours Chief Justice
Nicholson and Justices Ellis and Brown. The Full
Court of the Family Court of Australia delivered
its decision on 21st February 2003. In its
judgment, the Full Court dismissed the appeal by
the Attorney General for the Commonwealth of
Australian, thoroughly reviewed the applicable
evidence and legal issues and strongly affirmed the
original decision.
Re Kevin declared the law of
Australia to the effect that the question of
whether a person is a man or a woman for the
purpose of the marriage law of Australia is to be
determined as at the date of the marriage, that
there is no rule or presumption of Australian law
that the question of whether a person is a man or a
woman is to be determined by reference (only) to
circumstances at the time of the person’s
birth and that the answer to the question of
whether an individual is a man or a woman for the
purposes of the marriage law of Australia involves
a subtle determination taking into account all the
relevant sex differentiating facts and
circumstances of the individual’s life.
Anything to the contrary in the English decision of
Corbett –v- Corbett (orse Ashley)
[1971] P83
(“Corbett”) was declared
not to represent Australian law. It was the primary
contention of the Attorney General for the
Commonwealth in the case that the question of
whether a person is a man or a woman for the
purposes of the marriage law of Australia should be
determined pursuant to the reasoning and the test
of the congruence of an individual's gonads,
genitalia and chromosomal features (alone) as
assessed at birth (only) as espoused by the
judgment of His Honour Mr Justice Ormrod in
Corbett. The Corbett
decision also established the unfortunate legal
precedent for treating people with transsexualism
differently from those who experienced other types
of intersexual conditions; even where the same or
similar life/human rights issues, such as the need
for a declaration of the legal sex of an individual
or the right of an individual to marry, was
involved.46
As was noted by the Full Court in Re
Kevin-Full Court, not only did the expert
evidence in that case, and all the recent cases
dealing with the issue world-wide, contradict the
mental illness/psychological explanation for
transsexualism, support the biological explanation
and thus contradict the Corbett
distinction between so called ‘physical
intersex’ and ‘brain-body intersex’,
but the 2001 English decision of W v W
demonstrated the logical and ludicrous
result of the continued legal application of the
that distinction where aged shady memories of minor
irregularities of infant genital formation, such as
a temporarily undescended testis or the comparative
size of genitalia, could determine whether or not
an individual was to be diagnosed as experiencing
either a genital/bodily intersex condition or
transsexualism and, hence, whether or not an
individual could marry in her or his affirmed sex.
In W v W the successful litigant was
able to have her marriage declared valid in the
United Kingdom as not coming within the
Corbett regime, notwithstanding her
genitalia were unambiguously male at birth and she
possessed a ‘Y’ chromosome, because her
male genitalia could be said to have been smaller
than ‘the norm’ at birth and a medical
expert was able to retrospectively (she had
undergone SAS) hypothesise that she could have
experienced a degree of Androgen Insensitivity
Syndrome; and could thus be described as
‘intersex’ rather than experiencing
transsexualism. I recall a news report at the time
commented that in the case of W v W
“…size really did matter”.
Re Kevin has been relied upon in
several landmark international
decisions47 ; including the
decisions of I –v- The United
Kingdom and Christine Goodwin
–v- The United Kingdom, decided 11th
July 2002 by the European Court of Human Rights.
These decisions, which quote Justice
Chisholm’s decision in Re Kevin
at length and with approval, finally
determined that there had been violations of
articles 8, 12, 13 and 14 of the Convention for the
Protection of Human Rights and Fundamental Freedoms
in respect of the legal status of people who had
experienced transsexualism in the United Kingdom
and, in particular, such people’s treatment in
the spheres of employment, social security,
pensions and marriage. As a result of these
decisions the government of the United Kingdom
instigated the Gender Recognition Act 2004
which purports, though in my view fails, to honour
the word and spirit of those decisions with the
introduction of a program of law reform to remove
such violations of human rights.
Re Alex dealt quite narrowly with
the critical issue of the right of children and
adolescents with transsexualism and/or their
parents or guardians to obtain treatment for
transsexualism in childhood and adolescence.
Alex is a young person asserting and affirming
his male sex notwithstanding a female anatomy.
Given the evidence that Alex is sane and
doesn’t experience a disorder (other than
transsexualism as characterised), his consistent
male sex affirmation is, and should be, the best
evidence of his unalterable life-long brain sex and
hence transsexualism. Most surprisingly, in one of
only two cursory references to Re
Kevin in the decision, his Honour
represents Re Kevin as authority for
the proposition that the causation of
transsexualism is uncertain48;
although upon a reading of much of the decision one
could be forgiven for thinking that the two cases
dealt with different phenomena altogether.
Regrettably, and surprisingly, given the expert
evidence in and findings of Re Kevin,
the expert evidence in respect transsexualism in
Re Alex was dominated by psychiatric
opinion which adhered to the disorder/pathological
explanation of transsexualism. That perception of
transsexualism dominates Re Alex from
the very title of the case to the misconceived
public policy pronouncements concerning the
re-assignment of legal sex as determined by birth
certificate legislation with which it ends.
I realise how critical that must sound to those
involved in the case. Yet a clear perception of
Re Alex, free from the constraint of
the limited evidence available in that case,
demands such comment. Balance demands that I
simultaneously acknowledge that for Alex, former
Chief Justice Nicholson’s decision represents
the best chance yet Alex has had since his life
with his father to live a healthy and peaceful
life. I commend Alex for his extraordinary courage
and determination in pursuing his truth and his
human rights and I commend those who sought to
assist him to do so.
The reasoning of the Re Alex
decision, its legal and public policy
ramifications and its treatment outcome for Alex
gives rise to considerable concern. Re Alex
is a useful reminder for those dealing with
issues of difference in legal proceedings. The
biological/intersexual model of transsexualism, and
the clarification of the fallibility of the method
we use to allocate legal sex status in our culture,
are perspectives which, though previously
individually touched upon, only really crystallised
through legal proceedings like Re
Kevin which had the benefit of expert
evidence of extraordinary breadth, quality and
interdisciplinary character as well as people with
experience of transsexualism being advised and
represented by people with transsexualism;
especially given the evolutionary nature of our
culture’s perception of difference and the
stage that transsexualism has reached in that
evolutionary process. A person with transsexualism,
for example, is better able to advocate the
experience of transsexualism with clarity and
conviction in the face of mixed or contrary expert
theory.
The difference in the use of expert evidence
concerning transsexualism seen in Re
Kevin and Re Alex is crucial
from a human rights and law reform perspective as
denying equal human rights to people with
transsexualism is, regrettably, easier if they can
be perceived as people who experience disorder or
pathology.
In Re Alex, the court reached the
view that Alex should receive only some of the
medical treatment he requested for his
transsexualism because, as he suffered from
“Gender Dysphoria/GID” as described by
“Dr C”, there was a reasonable chance
that he would not go on to experience
transsexualism as an adult. Alex was ultimately
permitted to transition public sex and live his
life as a young adolescent male denied the
treatment necessary to do so with anything other
than a neo-pubertal female appearance. One only has
to review Kevin’s evidence in Re
Kevin to wonder what unnecessary
difficulties and pain the tentative approach to
treatment which the court approved must bring to
Alex’s adolescent life. In so doing the court
laid the foundation for the next step of conceiving
treatment for transsexualism in children and
adolescents as a “special medical
procedure” to which a parent or guardian
cannot consent. Thus, the court assigned such
treatment to the same category as sterilisation for
the mentally ill child and other procedures which
have no therapeutic benefit for the child or young
person and thus where a possible parent/child
conflict of interest is evidenced.
If the court had perceived Alex as requesting
treatment for a regularly diagnosed biological
phenomena (transsexualism) which is regularly
reported upon and reviewed by specialist medical
practitioners which required prompt non-surgical
treatment for Alex’s physical and
psychological health which was not novel but
routine in other respected medical jurisdictions,
rather than a pathological mental illness possibly
amenable to treatment and subject to diagnostic
variability, then I think it unlikely that the
court would have invoked its child welfare
jurisdiction to take the decision for treatment in
this matter out of the hands of the child’s
parents/guardians and treating doctors; especially
where that decision accorded with the informed
decision of the child or young person.
As it is, I have already received instructions
(and I understand they are but the first) from
parents of a child with transsexualism in New South
Wales who, as a result of the decision in Re
Alex, are required to obtain the Family
Court’s approval for the treatment of their
child when, prior to that decision, no such
approval was necessary and treatment had been
medically approved. Alex is not the first young
person treated for transsexualism in Australia and
he will not be the last. As the affects of shame
and cultural prejudice subside, it is likely more
young people with transsexualism will be able to
access help and medical treatment with the
assistance, approval and support of their families.
I submit that it is neither good medical practice,
humane (to the child and her or his family) or good
public policy that the medical treatment of each
such child or young person be subject to the delay
and cost of obtaining the approval of the Family
Court of Australia. The additional financial and
other impositions are likely to result in further
professional reluctance to diagnose and further
parental resistance to both diagnosis and
treatment.
It is of some concern that, although a
pre-eminent treatment centre for children with
transsexualism has existed in the Netherlands for
some years where such treatment is part of an
established and monitored program, no evidence from
that treatment centre was obtained for Re
Alex. If such evidence and the evidence of
the routine non-surgical treatment of other
children with intersexual conditions had been
before the court in Re Alex, there
must be doubt that the court would have found
either Alex’s request for treatment for
transsexualism, or the treatment itself,
‘novel’.49
In Re Kevin and Re
Alex it could be said that the Family Court
of Australia has now apparently accepted two
conflicting explanations for transsexualism. On
another view, Re Alex demonstrates
the misconceived differentiation between
transsexualism in childhood/adolescence and in
adults that is evidenced in the DSM. In my view
Re Alex should be distinguished, and
the explanation of transsexualism in Re
Kevin preferred, for all who experience it,
due to the narrow range and quality of the expert
evidence relied upon in Re Alex and
the fact that such expert evidence does not appear
to have been able to be adequately challenged or
tested in the particular circumstances, and
management, of that case. There also appears to
have been a failure of adequate submissions dealing
with a number of issues as commented upon by his
Honour in the judgement or as otherwise
implied.
My contentions in respect of the decision in
Re Alex can be summarised as
follows:
1. The decision was given per incuriam in
that, in circumstances where there is apparently a
significant/fundamental difference of expert
opinion in respect of the nature of transsexualism
in childhood/adolescence (as to whether it is a
natural intersexual variation in human sexual
formation as found in Re
Kevin50 in respect of
transsexualism generally or whether it is a mental
illness, disorder or psychological disturbance or
state of confusion, his Honour only had the benefit
of expert evidence of a limited psychiatric nature
which merely informed the court of the one such
opinion in circumstances where:
1.1 Such expert opinion was crucial to
the court’s categorisation of the
phenomenon of transsexualism in
childhood/adolescence and the categorisation of
its medical treatment and hence the court’s
decision as whether such treatment had, or had
not, a therapeutic purpose as well as whether
such medical treatment was, or was not, intended
for the benefit of the child/adolescent;
1.2 The expert evidence before the court in
Re Alex in respect of the nature
and (certainty of) diagnosis of transsexualism
in childhood/adolescence was essentially in
conflict with the extensive expert evidence and
the findings of Chisholm J (as he then was) and
the Full Court of the Family Court of Australia
in Re Kevin. This circumstance is
clearly unsatisfactory from a legal, human
rights and public policy perspective.
1.3 The limited and arguably inadequate
nature of the expert evidence as to the
phenomenon of transsexualism in childhood and
adolescence, its diagnosis and its medical
treatment upon which the court relied in
Re Alex brings into question the
courts determination of its jurisdiction in the
case.
2. The Court’s significant jurisdiction to
usurp the power of a child’s parents/guardian
in respect of the authorisation of the medical
treatment is not exercised or invoked lightly or
for every medical treatment or procedure that has
irreversible and possibly dire consequences. The
principles, which the court in Re
Alex purports to follow, were established
and set out by the High Court concerning the Family
Court’s child welfare/parens patriae
powers in Secretary, Department of Health and
Community Services v JWB and SWB (1992) FLC
92-293 (“Marion’s
Case”). That case involved the
sterilisation of an intellectually disabled
child/adolescent where the sole or predominant
purpose of the medical procedure in question was
the young person’s sterilisation.
3. In Marion’s Case the High
Court went to some length to stress that its
decision did not mean that the power of a parent or
guardian to authorise medical treatment for a child
was usurped by the court where sterilisation (or
other ‘invasive, permanent and irreversible
medical treatment’) was a likely or possible
by-product of medical treatment carried out for a
therapeutic purpose;
4. At paragraph 152 and following of the
judgement in Re Alex his Honour
confirmed that if the Family Court was to have
jurisdiction in respect of the medical procedures
proposed for Alex, the court first had to determine
whether Alex had capacity to consent to such
procedure (as per the Gillick
Test51) and, in the event
that Alex did not have that capacity, that the
proposed procedure was a Special Medical
Procedure. If Alex had capacity to consent
and/or the proposed procedure was not a Special
Medical Procedure, then the court had no
jurisdiction.
5. At paragraph 153 of the Re Alex
decision his Honour extracted the gravamen
of Marion’s Case in respect of
the determination of when a medical procedure is
special in so far as normal parental consent is
ineffective or insufficient consent as being when
the proposed medical procedure:
5.1 Is invasive, permanent and
irreversible; and
5.2 Is not for the purpose of curing a
malfunction or disease.
6. With the respect due to his Honour, I contend
there was error in applying the principles referred
to in respect of the determination of Alex’s
capacity to consent (particularly at paragraphs 157
to 173) when he finds that although Alex passes the
Gillick test of personal
understanding/appreciation and/or capacity, the
nature of the ‘sex change’
procedure is such that no child/adolescent
could have the requisite capacity to consent to
receiving such treatment. While it is contended
that his Honour’s judgment on this issue must
have been influenced by the erroneous/misleading
expert evidence which dominated Re Alex
concerning transsexualism in childhood, its
diagnosis and treatment, it is wrong to apply the
principles espoused both in Re Marion
and the Gillick test to the determination of
the question of Alex’s personal capacity to
consent by transforming the personal nature of that
assessment to one applicable to any and all
children/adolescents in respect of the medical
treatment of transsexualism.
7. I also question the finding of his Honour at
paragraphs 174 through to 200 where, with some
difficulty and clearly labouring both in the
absence of effective or detailed submissions and
with the confused and inadequate evidence, that the
treatment for Alex’s transsexualism (referred
to misleadingly and anachronistically as ‘sex
change’) was not for the purpose of curing a
malfunction or disease (ie was not therapeutic).
Thus, his Honour characterised treatment for
transsexualism in childhood/adolescence as legally
the same as treatment intended to sterilise a child
and where the consent of a parent was insufficient
due to a possible conflict of interest between
parent and child.
8. Another example of the misconception of the
phenomenon of transsexualism in
childhood/adolescence to be found in his
Honour’s judgement, no doubt founded upon the
failure of expert evidence, can be observed at
paragraph 180 of the judgement when his honour
observes that “The application before me would
seem a novel one…” when there is ample
evidence that transsexualism in
childhood/adolescence is diagnosed and treated on a
regular basis both in Australia and elsewhere.
9. The literature on the subject is clear that
the earlier people (especially children/adolescents
with transsexualism) receive treatment the better
the chances of the success of such treatment and
the better the overall quality of their lives.
Evidence of the existence of an urgent need for
Alex to receive treatment was before his Honour.
Thus, I believe it was wrong to fail to take
account of the financial and emotional burden of
his decision on the parents of children/adolescents
with transsexualism; and hence the adverse affect
of the decision upon children/adolescence with
transsexualism themselves in likely limiting and
delaying their opportunity and access to treatment.
These were considerations clearly present in the
decision of the High Court in Marion’s
case which led that court to so limit the
medical treatment that could be classified or
categorised as a Special Medical Procedure
and which should have led his Honour in Re
Alex to find that the treatment of
transsexualism in childhood/adolescence was
not.
At the same time, I do not consider that the
hearing process utilised in Re Alex,
described as based upon an
‘inquisitorial’ rather than
‘adversarial’ model (and similar to the
hearing process of a model program now being
conducted on a voluntary basis in children’s
issues cases), was itself necessarily responsible
for the failure and/or error I have contended are
present in the hearing and determination of
Re Alex. In fact, one could argue
that an inquisitorial hearing process, properly
funded and administered, should have been better
able to deal fully with difficult expert
evidentiary issues concerning difference. The
satisfactory and just result of the process,
however, is still dependent on the parties and the
judicial officer having a basic awareness of the
nature of the issues at trial. When difference is
on trial, as in Re Kevin and Re
Alex, there is a significant risk that no
such awareness will be present. Ideally, our
judiciary should be especially supported with
educational programs to enhance their knowledge and
awareness concerning minority groups and issues
concerning human difference, such as
transsexualism, and perhaps the introduction of
specialised amicus curiae so that judicial
officers are empowered to question expertise and to
call upon experts in addition to those introduced
by parties when dealing with matters that reach
beyond ordinary understanding and awareness. It is
a central proposition of this paper that special
considerations are required when having difference
on trail if we are to do justice to minorities
within our culture. It is therefore important to
emphasise that my criticism of the evidence,
hearing and the decision of the Family Court of
Australia in Re Alex neither makes or
implies a criticism of the medical experts, health
professionals and lawyers who participated in those
proceedings. Indeed, the goodwill, earnest intent
and efforts of those people to seek and obtain a
result in the case that honoured Alex and was in
his best interests is abundantly clear. There was
no conscious or individual prejudice at work in
Re Alex that could be held
responsible for the error I allege to have occurred
in that case. The responsibility for that error
lies with us all, is cultural, and is the product
of the process of our efforts to seek to
rehabilitate an aspect of ourselves that we have
long sought out of fear to deny; in this case
transsexualism.
There is prejudice in Re Alex, but
being cultural prejudice it is so
deep-rooted, reinforcing, almost
‘natural’ and pervasive that its presence
is all but impossible to see; except through the
eyes of Difference. Nevertheless, it is all about
‘Seeing’ and now that we have our
‘Sight’ we can venture to the next level
of our appreciation of the sometimes subtle
dynamics of dealing with difference in the legal
process and of our diversity and capacity for
cultural evolution and maturity.
Determining Common Law Sex
Justice Richard Chisholm concluded Re Kevin with
a discussion of the characteristics of a person
that should be assessed in ascertaining the
person’s common law sex52.
Although his Honour cautioned that no list could be
definitive, he highlighted the person's biological
and physical characteristics at birth (including
gonads, genitals and chromosomes); the person's
life experiences, including the sex in which he or
she is brought up and the person's attitude to it;
the person's self-perception as a man or woman; the
extent to which the person has functioned in
society as a man or a woman; any hormonal, surgical
or other medical sex reassignment treatments the
person has undergone, the consequences of such
treatment and the person's biological,
psychological and physical characteristics at the
time of the marriage, including (if they can be
identified) any biological features of the person's
brain that are associated with a particular sex, as
being the primary factors to be taken into
account.
At the same time his Honour acknowledged that
people with transsexualism who had undergone sex
affirmation surgery will normally be considered as
members of their affirmed sex at common law;
whether or not their legal sex had been reassigned
under State law.
But whereas Australian and New Zealand common
law prior to Re Kevin had judged that
sex affirmation surgery had taken place if the
person’s genital appearance and function
sufficiently imitated the normal genitalia of the
sex which the person had affirmed, Re
Kevin by implication accepted the medical
evidence that the purpose of sex affirmation
surgery was rehabilitative and did not depend upon
critical appearance or function benchmarks to be
considered to be complete. The surgical
‘bottom line’ or benchmark for
completeness of sex affirmation treatment
established by the expert evidence in re
Kevin is stated (in the negative) as being
that the person is no longer able to function in
the person’s first assigned or pre-affirmed
sex for the purpose of sexual intercourse and
reproduction.
For all practical purposes, I think it is safe
to now presume that a person who has undergone sex
affirmation surgery at the time of the commencement
of a relationship (marital or de facto) will be
considered of the person’s affirmed sex for
the purposes of that relationship by Australian
common law. I do not anticipate a court rejecting
that simple proposition on the basis that the
person does not otherwise strictly conform to
cultural norms in respect of gender expression or
the balance of the considerations set out by his
Honour or is not of a particular legal sex.
Determining Legal Sex (Birth Certificates)
Except in cases of obvious physical intersexual
genital formation, a medical practitioner’s
visual inspection of an infant’s external
genitalia is relied upon for the purpose of
determining “the sex…of the child”
and "the child's sex" as reported to the Registrar
of birth, deaths and marriages for all Australian
State and Territory birth, deaths and marriages
legislation. It is this reportage that provides the
record of the individual’s sex that is
included amongst the particulars of the individual
kept by the state that constitute the
individual’s legal identity; including his or
her legal sex.
While it is not specified, the common sense
presumption can be inferred that this regime for
the first assignment of a child’s legal sex,
based upon a casual inspection of the child’s
external genitalia alone, has developed because it
is accurate and works well for the great majority
of people whose external genitalia accurately
indicate their innate or brain sex.
Where there is an indication of a
physical/genital intersexual condition, it is best
medical practice that the assignment of the
child’s legal sex (and any genital surgery) is
postponed until the child, by word or action,
reliably indicates his or her innate or brain
sex.
It has now become clear that this standard
regime for the first assignment of legal sex
utterly fails those people who experience
transsexualism and some others who experience
certain types of traditionally recognised
intersexual conditions not physically observable at
birth because the external genitalia of those
individuals as infants do not correctly indicate
their innate or brain sex.
While it can be argued that in these
circumstances the resulting assignment of legal sex
is an error to be corrected pursuant to the
provisions for the correction of errors provided
for in all births, deaths and marriages
legislation, as is the case for at least childhood
intersexual conditions other than
transsexualism,53 the approach
adopted thus far by the States has been to create
special legislation with which to deal with the
reassignment of legal sex for people with
transsexualism and adults with intersexual
conditions.
One can only hypothesise that the legislature
has been concerned to ensure that people with
transsexualism and other adult intersexual
conditions only qualify to have their legal sex
reassigned once they have undergone sex affirmation
surgery. This at least preserves the cultural
expectation of male and female bodies, especially
given the ongoing improvement in the results of
phalloplasty, while ensuring that people other than
those who experience intersexual conditions
(including transsexualism) do not change their
legal sex.
The losers in the present legislative regime are
those with transsexualism who are medically
prohibited from undertaking sex affirmation surgery
for reasons of infirmity or age, those who are
married and want to stay that way, those with
intersexual conditions other than transsexualism in
States and Territories that provide no specific
legislative right for the assignment of such a
person’s legal sex and those born in other
countries where people with transsexualism are
unable to have their legal sex re-assigned.
Appendix H sets out my redrafting of
sections 32A to 32I of the NSW Births, Deaths
And Marriages Registration Act 1995 to provide
for the re-assignment of legal sex for all people
(be they young or old and no matter what variation
of human sexual formation) and which provides for a
compassionate approach to the reassignment of a
person’s legal sex.
Determining Jurisdiction
Re Kevin made it clear that the
validity of a marriage, and the sex of the parties
to a marriage, is to be determined at the date of
the marriage. This makes inherent sense given the
contractual nature of marriage. Justice Richard
Chisholm also examined the application of this
principle to the marriage of a person with
transsexualism who, subsequent to the marriage
ceremony (and the birth of any children of the
marriage) affirmed their innate sex and underwent
complete sex affirmation treatment. The
Commonwealth had expressed concern that in these
circumstances the marriage could be said to be
somehow ‘converted’ to a ‘same-sex
marriage’. His Honour did not share such
concerns.
Properly perceived, as such a marriage is
clearly between parties of different legal sex at
the time of it’s inception, there is no
concept in Australian law of a ‘voidable
marriage’ and as the treatment the party
undertook for transsexualism was for medical/health
reasons, and was not ‘optional’, the
scenario opened no ‘back door to homosexual
marriage’. There is no evidence that the
rights and welfare of children in such a scenario
are necessarily adversely affected. The marriage
itself is never made into anything other than a
heterosexual one given that the only reliable and
knowable guide to the sex of the parties at the
time of the marriage is their legal sex; which is
independent of, and can be different from, their
(often unknown and unknowable) biological sex.
Nothing of this reasoning or principle is disturbed
if human rights law reform enabled people with
transsexualism who are married to have their legal
sex reassigned so as to bring it into harmony with
their contemporaneous physically affirmed sexual
identity.
One can fairly safely assume that the same
principle would be applied to determining whether a
de facto relationship involving a person with
transsexualism, and any other intersexual
condition, was between a heterosexual or same-sex
couple; although there could well be conjecture as
to the appropriate time for the assessment of the
sex of a party who had affirmed a different sex
from that assigned to or affirmed by the party at
the commencement of the relationship. In assessing
this question in terms of the NSW Property
Relationships Act, I submit that if the
appropriate time is not the commencement of the
relationship then it may be two years prior to the
end of the relationship rather than the date of the
hearing to preserve certainty and so as to allow at
least the minimum period of a relationship in
respect of property division.
Transsexualism and Property Division
Transsexualism is properly pleaded as a natural
phenomena with predictable health and treatment
consequences in which treatment is not an optional
matter but a medical necessity. Appropriate
evidence is presented from treating doctors
confirming the party’s transsexualism and the
costs of sex affirmation treatment as well as the
economic consequences of that treatment, including
time off work and the specific impact of sex
affirmation upon the party in respect of future
earning capacity, there is no reason why a
party’s transsexualism should not be a
significant financial consideration to which a
court would have regard in respect of property
division under the provisions of the Family Law
Act. Detailed evidence of the cost of each proposed
medical procedure and treatment should be obtained
and related by the treating doctor/s specifically
to the party. Evidence should be available in
respect of he impact of the party’s sex
affirmation upon loss of income and the employment
prospects of the party from a person qualified to
give that opinion.
While the whole idea of a financial adjustment
being made in the favour of a party with
transsexualism in Family Law Act proceedings can
come as a surprise to the other party, who may well
blame their spouse’s transsexualism for the
end of the marriage, the concept is generally
accepted with reluctance and can, and should,
result in a significant financial adjustment in
favour of the party with transsexualism.
Appendix I is a simple example list of
liabilities dealing with sex affirmation treatment
and its immediate economic consequence for a high
income earner and an example of a short submission
in a Conciliation Conference Document of an
affirmed, but pre-operative, female.
The same cannot be said of the impact of this
evidence in de facto relationship proceedings due
to the limited scope given with regard to
adjustments or allowances for future need or any
obligation of one party to maintain the other in
State legislation such as the NSW Property
Relationships Act. One can only presume that the
jurisdiction concerning de facto couples will only
be referred to the Commonwealth to be administered
under the Family law Act if all relationships are
so dealt with.
There is the very real possibility, however,
that in a relationship involving a person with
transsexualism, who is either yet to affirm the
person’s innate sex or who is yet to undergo
all or any part of the person’s sex
affirmation treatment, the couple have discussed
and made plans for that affirmation and treatment,
its funding and its other short and long term
economic implications. If this is the case then
such evidence should be adduced to strengthen the
financial claim of the one party who will now bear
all that financia |
