Australia
— The medical view on transsexualism continues
to develop, and this should be combined with compassion,
courtesy and common sense in the law.
By Karen W
Gurney
The decision of the
Family Court of Australia in the matter of Re
Alex[1] <http://www.austlii.edu.au/au/cases/cth/family_ct/2004/297.html>
demonstrated yet again that there’s nothing like a
bit of under-age sex to raise the armchair experts from
their usual near-supine positions.
The opinions of
commentators like Bill Muehlenberg,[2] John
Flemming[3] and Babette Francis[4] and
even, unfortunately, the July 2004 “According to
Merit” article[5] have been unlikely to
advance the profession’s understanding of the
complex issues faced by people experiencing
transsexualism.
The factors that should
be considered in determining a person’s sex for the
purpose of the law in Australia are now well-settled, yet
controversies over diagnoses, access to treatment and
consequent legal status continue almost unabated as
Alex’s case has so aptly demonstrated.
Transsexualism –
the medical viewpoint
Dr Alfred Adler, in 1910,
wrote what was probably the first medical paper on gender
variance when he described a “male protest” in
psychological sexual ambivalence.[6]
In the same year, German
endocrinologist and sexologist Dr Magnus Hirschfeld
classified a group of individuals who wanted to live as
members of the opposite sex, intermittently or even
permanently. He described them as
“transvestites”.[7]
During the next decade of
research, however, Dr Hirschfeld came to realise there
was a sub-group of individuals who believed they actually
were members of the sex opposite that represented by
their phenotypes. In 1923, he classified the condition
affecting this latter group as
“transsexualism”[8] and, because of his
conviction that only a biological causation could explain
this phenomenon, placed transsexualism in the newly
defined intersex nosology describing relevant individuals
as “neurological gynandromorphs” in order to
distinguish them from
hermaphrodites”.[9]
In 1949, David Cauldwell,
an American psychologist, published his view that
transsexualism was a disorder of the mind, rather than
the body.[10] His stance was quickly picked up by
others in this new social “science”, and those
born with transsexualism were consequently consigned by
the majority to the double stigma of sexual deviance and
delusion for most of the remainder of the
millennium.[11]
Even so, there were
strong efforts made to continue research into the somatic
approach as the hormonal and surgical treatment of the
condition became ever more common and successful.
Foremost in these efforts was Dr Harry Benjamin, another
endocrinologist who had followed Dr Hirschfeld’s
earlier work with great interest.
In 1953, Dr Benjamin
advocated a biological explanation for the transsexual
syndrome, believing that the genetic and endocrine
systems must provide a “fertile soil” for
environmental influences. He said “if the soma is
healthy and normal no severe case of transsexualism ...
is likely to develop in spite of all
provocations”.[12]
Dr Benjamin clearly
distinguished between transvestism (psycho-somatic) and
transsexualism (somato-psychic) in his writings and
became more and more intrigued by the experiences of
those affected by the latter.[13]
His The Transsexual
Phenomenon <http://www.symposion.com/ijt/benjamin/>
was published in 1966 and defined transsexualism by the
individual’s belief they are a member of the sex
opposite their phenotype and a concurrent overwhelming
need for surgical reassignment.[14]
Dr Benjamin strongly
supported the view that transsexualism was a form of
intersex condition, saying: “Intersexes exist in
body as well as in mind. I have seen too many transsexual
patients to let their picture and their suffering be
obscured by uninformed albeit honest
opposition”.[15] And
“[b]iologically minded authors are likely to
consider ... TSism as an ‘intersexual’
phenomena but those are almost exclusively European
scientists. American writers[16] ... reserve the
term ‘intersexuality’ exclusively for visible
signs of disorders of sexual development, that is to say,
for hermaphroditic and pseudo-hermaphroditic
abnormalities. The Europeans, especially the Germans, use
the term in a much wider sense ...
”.[17]
Sir Harold Gillies and Dr
J Millard, the eminent British plastic surgeons, wrote in
1957 that “the definition of hermaphroditism should
not be confined to those rare individuals with proved
testes and ovaries but extended to include all those with
indefinite sex attitudes ... ”.[18] In more
recent years, a plethora of researchers have given
credence to the biological intersex nature of
transsexualism[19] and their findings used to
inform the common law of Australia.
Medical science knew for
decades that the brains of human males and females have
some distinct structural differences (for example, the
female brain is characteristically smaller). It was not
until 1995, however, that the first concrete evidence of
sexual dimorphism and its relationship to transsexualism
was revealed in the prestigious science journal Nature.
This research by Zhou et al shows “a female brain
structure in genetically male transsexuals and supports
the hypothesis that gender identity develops as a result
of an interaction between the developing brain and sex
hormones”.[20] It was closely followed by a
report produced on 18 January 1996 for the UK
Parliamentary Forum on Transsexualism chaired by Dr Lynne
Jones MP that stated “the weight of current
scientific evidence suggests a biologically-based,
multifactorial aetiology for
transsexualism”.[21]
Since then, many other
researchers have confirmed that the brain, like the other
sex organs, is sexually dimorphic (it biologically
differentiates into either a characteristically male or
female form) and the innate sense a person has of their
sex, irrespective of the state of their phenotype, is the
psychological manifestation of their physiological
development.[22] Most recently, work has been
focused on establishing the genetic factors that
determine sexual identity.[23]
In a preliminary report,
geneticists Professor Eric Vilain (UCLA) and Dr Vincent
Harley (Prince Henry’s Research Institute) have
announced their discovery of at least 15 genetic keys on
chromosomes other than the X or Y that influence the
process.[24]
It can therefore now be
justly claimed that transsexualism is nothing more than
another of the biological variations that can occur
during human sexual formation; an intersex condition in
which the sexual development of the phenotype has
proceeded opposite that of the
brain.[25]
Development of the
common law
It was Ormrod J, in the
UK decision of Corbett v Corbett,[26] who
established the first widely adopted legal test for sex,
albeit one based in biological essentialism that had
quite disastrous results for all people born intersexed,
including those with transsexualism. Arthur Corbett, a
bisexual man of means and heir to titled property, sought
to end his recent marriage to the model April Ashley, who
was a woman of transsexual background. To avoid the
distribution of property and maintenance orders that
would likely follow a divorce, Arthur sought and obtained
a declaration that the marriage was void ab initio on the
ground that April was in fact and in law a man and
therefore unable to marry another
man.[27]
His Honour certainly
rejected the medical evidence of several of the experts
before him, including that April was born intersexed and
that the psyche was an integral factor in determining
sex. He decided that, in order for a person to be
regarded as a man or woman, the sex of all three of their
gonads, genitals and chromosomes must be congruent.
Although often criticised,[28] this
“test” was incorporated into statute in the UK
and became an important part of common law decisions on
the issue in many other jurisdictions around the world.
As early as 1988,
however, some Australian courts began to depart from the
Corbett precedent.[29] An exception was the
judgment in C v D (falsely called C),[30] an
intersex marriage case in which it was held that,
applying Ormrod J’s test, the respondent was neither
male nor female and was consequently unable to enter into
a valid marriage. It was not until Chisholm J applied his
powers of reasoning towards it in Re Kevin[31]
that the inherent flaws in Ormrod J’s judgment were
exposed. <http://www.austlii.edu.au/au/cases/cth/family_ct/2001/1074.html>
Chisholm J heard evidence
from Kevin, his family and friends that Kevin had known
himself to be a boy from a very young age.[32]
Photos tendered of Kevin at age 3 show him wearing a
cowboy suit and two toy guns, and at age 8 with a soccer
ball and trophy.[33] Kevin regarded himself as
the brother of his three sisters and defended them as
only a brother could. His difference led him into fights
at school and he described his puberty as a time of great
“pain and dread”.[34] Chisholm J also
heard evidence from both domestic and international
experts in reproductive medicine, neuro-endocrinology and
psychiatry among others. On this basis he found that the
phenomenon of “brain sex” is a fact established
to the civil standard, leading him to state obiter that
the former distinction between intersex and
transsexualism was no longer consistent with the medical
reality since transsexualism is as much a conflict of
biology with biology as are (other) intersex
conditions.[35]
The nature and extent of
the evidence, which was not contested, convinced Chisholm
J to conclude that the factors to be considered in
determining a person’s sex for the purposes of
marriage[36] “include, but are not limited
to: 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, and 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”.[37]
Chisholm J said: “it
is clear from the Australian authorities that
post-operative transsexuals will normally be members of
their reassigned sex”.[38] He declared Kevin
to be a man within the ordinary, contemporaneous meaning
of the word and that his marriage to Jennifer was
therefore valid.[39]
The federal
Attorney-General appealed but the Full Court of the
Family Court not only confirmed the decision at first
instance,[40] it adopted the reasoning of the
Family Division of the UK High Court of Justice in W v W
(intersex case) [41] – which also departed
from the test established by Ormrod J – and held
that an intersexed person should be able to choose their
sex and marry in it. The Full Court further stated that
such rights should extend to a person with
transsexualism.[42]
In an unrelated decision,
Menzies v Waycott,[43] the Anti-Discrimination
List of the Victorian Civil and Administrative Tribunal
(VCAT) heard evidence from Dr Herbert Bower of the Monash
Gender Dysphoria Clinic that transsexualism is a
biological disorder[44] and that, following
hormonal and surgical treatment for it, a person no
longer has the condition and is simply a member of the
opposite sex. “[T]he disorder no longer
exists.”[45]
Thus, the Australian
position is quite clearly that transsexualism is not a
psychopathology of itself; rather it is another of the
natural biological variations that occur during human
sexual formation, one in which the phenotypic sex and the
karyotype are incongruent with the sex of the brain.
This is essentially the
position the Harry Benjamin International Gender
Dysphoria Association (HBIGDA) <http://www.hbigda.org/>
outlined in an amicus curiae brief presented last year to
the US District Court (Western District of Virginia) in
the matter of D’Elonta (Stokes) v Angelone et al.
[46]
HBIGDA submitted, inter
alia, that “there is now reason to believe that
transsexualism is a disorder of sexual differentiation,
the process of becoming man or woman as we conventionally
understand it”.[47]
Compassion, courtesy
and common sense
Although statistics on
the issue are lamentably scarce, the extreme distress
associated with transsexualism prior to treatment leads
to an inordinately high rate of attempted suicides. It is
not just the fact of transsexualism per se that brings
about the distress – much of it is attributable to
the negative responses from family, friends and the wider
community to the manifestation of the condition in the
affected individual. If gender dysphoria is an invisible
handicap, then the very visible public ignorance and
intolerance of it is by far the greater burden for people
experiencing transsexualism.[48] Most studies
suggest the rate of suicidal ideation is generally around
1 in 3 individuals prior to full transition, while the
rate of attempted suicide is around 1 in
4.[49]
One particular
study[50] found that 12 per cent of the
male-to-female and 21 per cent of the female-to-male
subjects had engaged in suicide attempts. Further
questioning, however, revealed that in virtually all of
these cases this behaviour was attributed to intense
frustration and exasperation over the gender dysphoric
condition. This finally reached a breaking point over
such reported issues as feeling isolated and not able to
talk to others, being rejected by family or an intimate
partner, or disgust with one’s anatomic state and
feeling that it could never change. All of the suicidal
attempts occurred prior to the individuals becoming
involved in specific gender treatment. None of these
patients had a suicide attempt after beginning therapy
for his/her gender issues.[51]
So how does all this
relate to the decision of the Family Court of Australia
in Re Alex?[52] All the evidence before the Court
was that Alex was suffering acute gender dysphoria and
had been experiencing suicidal ideation. The diagnoses
and recommendations of the treating psychiatrists and
other Australian experts were submitted to two
international experts in child and adolescent gender
issues who concurred with them. As retired Family Court
judge Travis Lindenmayer said recently in relation to
comments in the media about Alex and the Family
Court’s decision regarding his welfare: “If
Alex had been refused treatment and committed suicide,
there would still be questions and criticisms, just very
different ones. And death is absolutely
irreversible”.[53]
Alex is a boy. He
identifies as a boy and, paraphrasing the words of the
Equal Opportunity Act 1995 (Vic) <http://www.austlii.edu.au/au/legis/vic/consol_act/eoa1995250/>,
is identifying on a bona fide basis as a member of the
other sex (whether or not he is recognised as such) by
(i) assuming characteristics of the other sex, whether by
means of medical intervention, style of dressing or
otherwise; and (ii) by living, or seeking to live, as a
member of the other sex.[54] Treating him
differently to other boys, such as referring to him as a
girl, is a discrimination against him on the basis of his
gender identity and a serious failure to accord him a
social courtesy. Denying his biological reality and
foisting the stigma of delusion on him is a
travesty.
Common sense tells us
that a 13-year-old can read, listen to the radio, watch
television and surf the Internet. I wonder how many of
those armchair experts insensitive to the fact that a
13-year-old may be following the media have thought about
the impact their rejection of his reality and needs must
be having on Alex?
Explanation of
terms
gynandromorph
a person who is both male and female (gyno L = female,
andro L = male, morph L = form)
hermaphrodite a
living creature who has both male and female genitalia
and gonads
intersex
Stedman’s Medical Dictionary (24th edn), 1984
– the condition of having both male and female
characteristics – being indeterminate between the
sexes
Macquarie Dictionary
(2nd edn) – an individual displaying
characteristics of both the male and female sex of the
species
nosology the
scientific categorisation of medical conditions
somatic of the
body, corporeal, physical, opp. mental
Footnotes
[1] Re Alex:
Hormonal Treatment for Gender Identity Dysphoria
[2004] FamCA 297
[2] For example,
http://www.newsweekly.com.au/articles/2004may08_f.html
and http://www.newsweekly.com.au/articles/2003jun14_g.html.
[3] For
example,http://lifeissues.net/newsletters/mojo.cgi?flavor=archive&id=20040415191500&list=lifenews.
[4] For example,
http://www.endeavourforum.org.au/april04-08.htm
and http://www.endeavourforum.org.au/feb04-04.htm.
[5] Susan Borg,
“When being a girl is not enough” (2004) 78(7)
LIJ 87.
[6] Hirschfeld,
Dr M, “Die psychische Hermaphrodismus im Leben und
in der Neurose”, 10 Fortschritte die Medizin
486-93.
[7] Hirschfeld,
Dr M, Tranvestiten. Eine Untersuchung über den
erotischen Verkleidungstrieb put umfangreichen
casuistichem und historischem Material, (1910)
Pulvermacher, Berlin, (republished at Spohr in Leipzig in
1925).
[8] Hirschfeld,
Dr M, “Die intersexuelle Konstitution” (1923)
23 Jahrbuch für sexuelle Zwischenstufen 3-27.
Le premier usage du terme “transsexuel
psychique” (“seelischer
Transsexualismus”), qu’il distingue de la
“corporéité gynandromorphe” des
hermaphrodites physiologiques, mais sans individualiser
une catégorie nosographique. En
“Bibliographie de travail sur les troubles de
l’identité sexuelle” pris de La
métamorphose impensable: Essai sur le
transsexualisme et l’identité personnelle,
Gallimard (ed), Pierre-Henri Manor, Paris ISBN
2-07-076898-8, 2003. [Author’s translation:
Hirschfeld, Dr M, “The intersexual
constitution” (1923) 23 Yearbook for Sexual
Intermediaries 3-27.
[9] David
Cauldwell, “Psychopathia transexualis” (1949)
16 Sexology 274-280.
[10] Even today,
30 years after homosexuality was removed from texts of
mental disorders such as the DSM (APA) and ICD (WHO),
transsexualism continues to be described as a psychiatric
disorder in those same manuals, yet many of those who
specialise in the area say that, unlike the position for
GIDAANTS (transgenders/transvestites), there is no
evidence of undue psychopathology in the person treated
for transsexualism. See, for example, Patricia Miach et
al, “Utility of the MMPI-2 in assessing gender
dysphoric patients” (2000) 75 Journal of
Personality Assessment 268-280; Mikael Landen,
“Transsexualism, epidemiology, phenomenonology,
aetiology, regret after surgery, and public
attitudes” (1999) Institute of Clinical
Science, Goteburg University, Sweden.
[11] Harry
Benjamin, “Transvestism and transsexualism”
(1953) 5(2) Journal of Sex Research 13.
[12] Harry
Benjamin, “Transvestism and transsexualism as
psycho-somatic and somato-psychic syndromes” (1954)
8(2) American Journal of Psychotherapy.
[13] Harry
Benjamin, The Transsexual Phenomenon, 1966, Julian
Press.
[14] Note 13
above, at 2.
[15] Note 13
above, at 51.
[16]
Author’s note – American thinking was then
dominated by the new psychology.
[17] For example,
Helene Stourzh-Anderle, a Viennese physician, favoured a
biological approach and regarded transsexualism as
“anchored in an inborn constitution” and
therefore “an intersexual manifestation that could
be combined with infantile (subsexual) features”:
Sexuelle Konstitution (1955) Verlag f. Medizinische
Wissenschaften, Wien-Bonn.
[18] HD Gillies
and DR Millard, The Principles and Art of Plastic
Surgery (1957) Little Brown, 370-1.
[19] For further
information on the intersexed nature of transsexualism,
see also: Julie A Greenberg, “Defining male and
female: intersexuality and the collision between law and
biology” (1999) 41 Ariz L Rev 265; Milton
Diamond, “Sex and gender: same or different?”
(2000) 14 http://www.hawaii.edu/PCSS/online_artcls/intersex/sex_gender.html;
LJG Gooren, “Expert witness statement” provided
to the High Court in the case of Bellinger v
Bellinger [1999] High Court of Justice (Fam
Div) No. 99 of 1999 http://www.transgenderzone.com/library/fg/fulltext/38.htm;
LJG Gooren,
“Transsexualism, Medicine and the Law” (1993)
The Council of Europe’s 23rd Colloquy on European
Law April 14-16, 1993 http://www.mermaids.freeuk.com/gooren01.html;
Torres and Jurberg, “PAIS and MAIS Ligand-Selective
and the organic etiology of gender dysphorias”,
(2001) Presented at the 15th World Congress of Sexology,
Paris http://www.gendercare.com/library/wal_original2.html.
[20] Zhou,
Hofman, Gooren and Swaab, “A sex difference in the
human brain and its relation to transsexuality”
(1995) 378 Nature 68-70.
[21] D de Cegli,
J Dalrymple, L Gooren, R Green, J Money and R Reid,
“Transsexualism: the current medical viewpoint”
(1996) http://www.pfc.org.uk/medical/mediview.htm.
[22] For example,
Swaab et al, “Sexual differentiation of the human
hypothalamus” (2002) 511(1) Adv Exp Med Biol
75-100 http://else.hebis.de/cgibin/sciserv.pl?collection=journals&journal=01662236&issue=v18i0006;
Kruijver et al, “Male to female transsexuals have
female neuron numbers in a limbic nucleus” (2000)
85(5) The Journal of Clinical Endocrinology &
Metabolism 2034-2041 http://jcem.endojournals.org/cgi/content/full/85/5/2034.
[23] For example,
Laura Carruth, Ingrid Reisert & Arthur Arnold,
“Sex chromosome genes directly affect brain sexual
differentiation” (2002) NATURE Online
http://www.nature.com/cgi-taf/DynaPage.taf?file=/neuro/journal/v5/n10/abs/nn922.html.
[24] Carina
Dennis, “Brain development: the most important
sexual organ” (2004) 427 NATURE 390-392
http://www.nature.com/cgi-taf/DynaPage.taf?file=/nature/journal/v427/n6973/index.html
[25] Not
withstanding the unequivocal state of the law in
Australia, there is still controversy over the inclusion
of transsexualism in the same classification as
“traditional” intersex conditions
(hermaphrodism and pseudo-hermaphrodism) – this is
as much between activist groups as it is between
scientists.
[26] Corbett v
Corbett (otherwise Ashley) [1971] P
83.
[27] One has to
ask why the case proceeded in such a different direction
to another earlier one that also happened to involve a
landed title, and why it was that neither the court nor
the defence apparently knew this precedent existed. In
the unusual case of Dr Ewan Forbes, for which no court
documents can be located, the applicant changed his sex
from female to male and thereby defeated a claim by
another male heir to a Scottish baronetcy with
significant land holdings. Forbes also later married his
housekeeper: Zoe-Jayne Playdon, The Case of Ewan Forbes
(1996) http://www.pfc.org.uk/legal/forbes.htm.
[28] See, for
example, the comments of Mathews J in R v Harris and
McGuiness (1988) 17 NSWLR 158, at 190; Bellinger v
Bellinger [2001] EWCA Civ 1140 (Court of
Appeal) per Lord Thorpe at 116, 118, 131-34;
Secretary, Department of Social Services v SRA
(1993) 118 ALR 467 per Black CJ at 20.
[29]
Harris, note 28 above; R v Cogley
[1989] VR 799.
[30] C v D
(falsely called C) (1979) 5 Fam LR 636.
[31] Re
Kevin (validity of marriage of a transsexual)
[2001] FamCA 1074.
[32] Note 30
above, at 24.
[33] Note 30
above, at 25.
[34] Note 30
above, at 26.
[35] Note 30
above, at 270-72.
[36] Marriage was
the last major step for people of transsexual background
toward attaining human rights to be recognised
post-operatively as members of their affirmed sex for all
purposes. Status for the purposes of the criminal law,
social security and other administrative law,
anti-discrimination law and laws relating to birth
registrations has also been settled.
[37] Note 30
above, at 329.
[38] Note 30
above.
[39] Note 30
above, at 330.
[40]
Attorney-General of the Commonwealth and Kevin and
Jennifer and the Human Rights and Equal Opportunity
Commission [2003] FamCA 94.
[41] W v W
(intersex case) [2000] 2 WLR 673, Case No
4119.
[42] On the same
day the Full Court handed down its decision, Judge Gerard
O’Brien delivered his judgment in the Circuit Court
in Florida in the matter of Kantaras v Kantaras
[2003] 98-5375CA. He described the decision
in Re Kevin as “possibly the most important ever
delivered in the history of the jurisprudence of
transsexualism”.
[43] Menzies v
Waycott [2001] VCAT 13.
[44] Note 42
above, at 213.
[45] Note 42
above, at 216.
[46]
D’Elonta (Stokes) v Angelone et al
[2003] CA No 7:99-CV-00642 US District Court,
West Virginia.
[47] Note 45
above, at 14.
[48] M Brown and
C Rounsley, True Selves. Understanding
transsexualism (1996) Jossey Bass, San
Francisco.
[49] Robin Mathy,
“Transgender identity and suicidality” (2002)
14(4) Journal of Psychology & Human
Sexuality.
[50] Collier M
Cole, Michael O’Boyle, Lee E Emory and Walter J
Meyer III, “Comorbidity of gender dysphoria and
other major psychiatric diagnoses” (1997) 26(1)
Archives of Sexual Behavior 13(14).
[51] Note 49
above.
[52] Note 1
above.
[53] Travis
Lindenmayer, “How a judge rescued Alex”
Herald Sun, 27 April 2004 at 18.
[54] Act No
42/1995, s4(1).
