Lawyer Rachael
Wallbank <http://www.wallbanks.com/>
turned 50 on Saturday. Among those sharing the
family law specialist’s milestone were her grown
children, Rebecca, Kate and James. They often refer to
her as Rachael, but still think of her as — and
sometimes still call her — Dad.
The lives of people with
transsexuality, and their emotional, medical and legal
battles have entered the mainstream’s consciousness
with the release of firsttime writer-director Duncan
Tucker’s groundbreaking film Transamerica,
starring Felicity Huffman in a critically lauded role.
Huffman scored a Golden Globe in January for her
performance and was favoured to win a Best Actress Oscar
on Sunday for her role as Bree, previously known as
Stanley, who was born with transsexualism.
Wallbank, a formidably
intelligent woman, changed her “public sex” at
38, but does not call herself “a transsexual”
or a “transsexual woman”. Previously married
and known as Richard, and having fathered three children,
Wallbank refers to herself as a “female who has
experienced transsexualism”.
For her, the description
transsexual reduces a person to a condition. Pop
culture could now improve public understanding of people
with transsexualism. Last week, Wallbank and her son
James, 16, saw Transamerica. Felicity Huffman’s Bree
plans to undergo sex affirmation surgery (what used to be
commonly known as sex change surgery) to change her
genital sex to female, but her plan is diverted by the
discovery of a teenage son she never knew she’d
fathered.
Confused? So is Toby,
Bree’s 17-year old son, played by Kevin Zegers. He
takes her at face value as a female missionary as they
travel America’s roads together, only to spot her in
the rear view mirror standing, rather than squatting, to
take a roadside pee, in a fairly graphic
moment.
“I was pleasantly
surprised,” Wallbank says, seated behind her desk in
her office in Burwood, in Sydney’s innerwest.
“I enjoyed it. And I found it quite poignant,
particularly the parent-child issues; the reality of a
female father and her relationship to her son. It’s
used as a vehicle to tell a human story. It’s not
used as a circus routine.”
Sally Goldner, 40, a
spokeswoman for Transgender Victoria <http://home.vicnet.net.au/~victrans/>,
says Transamerica is a “landmark transsexual film
and very relevant”. In it, Bree’s parents
essentially say they love her but don’t respect
her.
“That was the part
that hit the spot for me,” says Goldner, who was
declared male at birth and today is happy to be called a
“transsexual woman” for the sake of
conciseness. Huffman, Goldner says, is very believable in
the role of Bree. One child’s question of Bree in
the film — “are you a boy or a girl?”
— is the classic experience of transsexual people,
says Goldner.
Wallbank was also
impressed by Bree facetiously telling her psychiatrist
how funny it is that cosmetic surgery can “fix”
a psychiatric condition: a reference to the continued
treatment in some medical and cultural quarters of
transsexualism as a mental disorder, sometimes referred
to as “gender dysphoria”.
Wallbank’s views are
noteworthy, and not only for the cause of the estimated
5000 Australians who live with transsexualism. Her
efforts in the Family Court on behalf of her clients
“Kevin and Jennifer” — not their real
names — who wed in 1999, established marriage rights
for couples where one partner has already had sex
affirmation surgery.
Kevin’s sex had been
“reassigned” in 1995. The full court of the
Family Court affirmed the marriage in 2003
<http://www.austlii.edu.au/au/cases/cth/family_ct/2003/94.html>,
dismissing the Commonwealth’s objection that Kevin
could not qualify as a husband because he was born with
female genitalia. In doing so, the court significantly
rebuffed the Howard Government’s views about who
should be allowed to marry.
An anticipated High Court
challenge has not materialised. In the past three years
many more such couples — at least a dozen that
Wallbank is aware of — are known to have also
married. Kevin, 40, and Jennifer, 39, remain married in
Sydney’s inner-west with their two sons, conceived
by donor sperm.
In essence, Wallbank
helped to advance the understanding that sexual identity
— as manifested in transsexualism — is
biological and innate and not a psychological disorder or
chosen.
Her case on behalf of
Kevin and Jennifer introduced influential scientific
expert evidence about “brain sex” into
Australian common law. It means that the common
assumption that genitalia automatically determine if we
are a boy or a girl has been overthrown. Rather, as
Wallbank puts it, sexual identity is “determined
between the ears, and not between the
legs”.
But there are still many
battles to be won. Wallbank likens Kevin and
Jennifer’s actions to those of Rosa Parks
<http://en.wikipedia.org/wiki/Rosa_Parks>,
the woman who sparked the US civil rights movement by
refusing to stand for a white man on a bus in Montgomery,
Alabama, in 1955.
In the journal
Nature in 1995, a team of endocrinologists and
sexologists published a landmark paper that established
the “brain sex” concept and challenged the
gender dysphoria model <http://www.symposion.com/ijt/ijtc0106.htm>.
In Kevin and
Jennifer’s case, two of those experts, Dutch
professor Louis Gooren and American professor Milton
Diamond <http://en.wikipedia.org/wiki/Milton_Diamond>,
gave evidence accepted by the court that some people are
born with a brain that recognises them as a member of the
sex opposite to that indicated by their chromosomes,
genitals and gonads at birth. This is the proposition the
Family Court of Australia recognised, concluding that
transsexualism is a biological variation in human sexual
formation <http://www.mtra.org.au/info/legal/summary.html>,
rather than a psychological disorder. Transamerica wins
Wallbank’s praise mostly because of the emotions it
shows between Bree and her son, given her experiences
with her own son, James. It takes almost the whole film
before Bree can declare of her son: “I am his
father.”
Wallbank, however, says
her own sex affirmation as a woman never stopped her
being a father. James was five when his Dad
“transitioned” from Richard to Rachael. As a
little boy, James tried to correct the occasional
stranger who referred to Rachael as his mother, telling
them she was his father. James’s two older sisters,
Kate and Rebecca, would try to stop him explaining the
whole story <http://www.mtra.org.au/press/03/0330.html>.
As her children have
grown, Wallbank has been aware that they were obliged to
share her difference. Kate is now 23 and Rebecca is
19.
Wallbank thinks they had
to mature sooner than their peers. But she does not think
they have experienced any significant emotional
difficulties as a result of her affirming her identity as
a female and as their father. “I loved being a
father. I really liked that role, and I still
do.”
Becoming Rachael, in the
mid-’90s, was tough, despite her children’s
ready acceptance. She had no way of knowing what would be
left of her legal practice after her transition.
Wallbank, as Richard, recognised she had become dependent
on alcohol and would have to stop drinking if she was to
survive “transitioning” and managing a new
life.
And there were other
emotional adjustments. Rachael’s mother, Clare, had
died two years earlier, and her father, Ed, could not
understand what had become of the person he thought of as
his son. “I knew he loved me, but he withdrew,”
Wallbank says.
One day, though,
Wallbank’s father phoned, and she visited him. Ed
gave Wallbank her mother’s engagement ring, and
said: “I know she’d be as proud of you as the
daughter you’ve become as I am.” He died in
1999.
Wallbank has found
herself on a spiritual journey — her belief in God
strengthened when she experienced the rejection,
isolation and despair that went with making the decision
to transition.
While Wallbank has
experienced her sexual identity as fixed, her sexuality
or sexual orientation appears more fluid. She loved and
was sexually attracted to her wife when they were married
but, in transitioning to Rachael, a “light went
on”, and she became attracted to men. Some might
describe this as bisexuality, but Wallbank says she
wanted to have a sexual relationship with a man because
she could do so with a female body.
Wallbank hopes one day to
marry. “I’ve met some nice guys, but I
haven’t met the right one yet,” she says.
“But then, neither have so many of my girlfriends.
I’ve been so busy, too. I’d have to meet
someone who so owned his own stuff, and was so sure of
his maleness, that he could handle me doing this public
reform work.”
The estimate of 5000
people with transsexualism in Australia is low, Wallbank
says, as an unknown number suffer in silence, harm
themselves or take their lives. Even trying to talk to a
medical practitioner about such lifelong feelings is
fraught with potential rejection and ignorance. “To
be seen is sometimes to be destroyed,” Wallbank
says.
If pop culture is now
making a mark — alongside internet home pages and
blogs by people with transsexualism announcing themselves
to the world — the law is far from satisfactory in
the eyes of many.
A person whose anatomical
sex has been “reassigned” or rehabilitated by
surgery can get themselves a new birth certificate under
NSW or Victorian law. But people who get married first
— as an opposite-sex couple according to genitalia
— and then have the same treatment cannot have their
legal sex changed unless they get divorced. Otherwise,
state authorities believe, same-sex marriage would be
effectively sanctioned.
As well, Australian laws
differ significantly from state to state, creating
“needless inhumane uncertainty and confusion”,
Wallbank says.
The next big battlefront,
as Wallbank sees it, is restoring the rights of children
with transsexualism to have medical treatment in their
teens. Access was restricted in a 2004 ruling that forced
parents to first obtain approval from the Family Court
before any treatment started <http://www.mtra.org.au/press/04/0419.html>.
Wallbank has been acting for the parents of a teenager
under 16 in such a case (she declines to give the
age).
The parents recently
obtained approval for the teenager to receive medication
to enable her to postpone the physical effects of puberty
while she is assessed for later hormonal treatment at 16.
The teenager, “on her own insistence and with
medical approval”, Wallbank says, has for several
years been living as a girl in her everyday life, even
though she was born a boy. The 2004 requirement, Wallbank
says, has caused considerable delay in
treatment.
