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Terminology
15
This Paper deals with
biological, cultural and legal matters which are the subject
of a number of recent developments in the wisdom of medical
science and law which have challenged accepted notions and
enhanced our appreciation of variation in human sexual
formation, the assignment of legal sex (“legal
sex”) as well as the confirmation of predominant
biological sex or brain sex in the circumstances of
incongruent legal sex (“sex affirmation”)
and the confirmation of the Full Court of the Family Court
of Australia as to how an individual’s sex is be
determined for the purposes of the Marriage
Act, the Family Law Act and the Common
Law ( “common law sex”). In the
circumstances it is helpful at this point to include a
number of definitions and explanations of the terminology
used throughout this Paper in order to clarify
meaning3
15.1 The human brain
differentiates as to sex (“brain
sex”, “mental sex” or
“innate sex”) in the same fundamental
way as the other sexually differentiated features of the
human body4;
such as gonads and external genitalia. The brain
sex of an individual develops as a biological process
independently of the individual’s other sexually
differentiated features. Before the process of brain sex
differentiation was appreciated, such innate knowledge of
one's sex was commonly referred to as "psychological
sex". In so doing, and in some circumstances, this
terminology and characterisation enabled or permitted
mere physical characteristics of bodily formation, such
as genital formation, to be given greater weight in
determining an individual's legal and common law sex than
the individual's brain sex;
15.2 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);
15.3 Australian society generally
perceives and requires its members to be either male or
female (“cultural sex”," gender
expression" or “gender”). An
individual’s gender is that sex, male or
female, to which that individual is generally perceived
to belong by the other members of his or her
society;
15.4 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 that is not the case. In fact, for people
who experience transsexualism, this system for the first
assignment of legal sex guarantees that they will be
assigned to the wrong legal sex;
15.5
In Australia and elsewhere, when the sexually
differentiated features of an individual’s body (and
in particular the genitalia) are incongruous, or fail to
provide a clear indication of the individual’s sex
the individual is said to be ("intersex",
"intersexual" or "intersexed"). It is now
accepted ‘best medical practice’ that where
this condition is detected at or near birth then the
assignment of that individual’s legal sex should be
postponed until, or such assignment take 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;5
15.6
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.6
For people who experience transsexualism the remedy for
this predicament is rehabilitative sex affirmation
treatment 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 and peace. It is sometimes forgotten by
those who confuse transsexualism with transgender, and
consequently advocate that there should be no
precondition of bodily reformation by sex affirmation
treatment associated with the reassignment of legal sex
or the recognition of common law sex, that people who
experience transsexualism will undergo, and historically
have undergone, sex affirmation treatment irrespective of
the law or legal consequence. People who experience
transsexualism undergo such treatment, with all its
difficulty, for its own sake. The Macquarie Dictionary
defines transsexual as "one who has undergone a
sex change operation".7
Medical science now recognises that transsexualism is a
form of intersex;8
The Macquarie Dictionary defines intersex as "an
individual displaying characteristics of both the male
and female sexes of the species.9
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. Clearly,
transsexualism describes a condition in which an
individual experiences the exquisitely difficult
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 also important to note, in the context of the
foundation of the fundamental human rights claims of
people who experience transsexualism, that in all the
many recent cases no expert evidence to the contrary to
explain transsexualism has been able to be even put in
evidence to Courts (let alone proved or accepted) by the
well resourced Respondent governments in both Australia
and the United Kingdom when opposing the human rights
applications of people who have experienced
transsexualism. Reading between the lines, one could
suggest that the descriptive problem causing offence to
the Intersex community when transsexualism has been
described as a form of intersex or type of intersex
condition has arisen with the adoption by the Intersex
community of the more general term "intersex" in
preference to the more specific term "hermaphrodite" in
the very successful public relations and education
campaign conducted by that community.
Hermaphrodite
is defined by The Macquarie Dictionary as "a person
with male and female sexual organs or
characteristics."10
A much more precise term. It would be impossible to
describe transsexualism as a form of hermaphroditism. At
the same time, one can also discern the understandable
reluctance of the Intersex community to risk sacrificing
a hard-won positive and distinct public image by
association and possible confusion with transsexuals and
transsexualism; especially as the transsexual community
(as it is) has been strikingly less successful in
rehabilitating the terms "transsexual" and
"transsexualism" and clearly communicating the meaning of
those terms to the public mind while adequately
distinguishing such terms from transgender;
15.7
When an
individual who has experienced transsexualism undergoes
the medical program of hormonal and/or surgical treatment
undertaken so as to conclusively alter the sexually
differentiated features of the body so as to bring it
into better harmony with the individual’s brain sex
then the individual has undergone "sex
assignment/re-assignment surgery", "a sex
change" or "sex affirmation treatment"
(“sex affirmation”). Such conclusive or
irreversible treatment is rehabilitative and, therefore,
does not require results that are either cosmetically or
functionally perfect or complete in order to be
considered successful;11
15.8
Transsexualism
is readily diagnosed by medical practitioners familiar
with the predicament and is a biological predicament of
human sexual formation (and not a psychological
one).12
Transsexualism is readily distinguished from
"transgenderism" or
"transgender").13
Transgender is a behavioural or psychological phenomenon
where an individual’s gender expression (gender
identity) is at odds with their brain sex (sexual
identity). For transgender people no or little
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 need, require or desire conclusive
sex affirmation treatment in order to bring his or her
body into sexual harmony with his or her mind.
Consequently the transgender individual does not need or
require the legal right to reassign his or her legal sex.
Transgender individuals express gender contrary to their
sex without a desire to change their sex.14
Many people do the same thing on an occasional
basis.
15.9 Perhaps some of the confusion
associated with this terminology has resulted from the
genuine efforts of some individuals, groups and
institutions seeking to simultaneously represent and/or
support people of difference, inclusive of both the
communities of people who have experienced transsexualism
as well as those who experience transgender, for funding,
political and other reasons. And perhaps it is the
inability of an oppressed, shamed, silenced, disbursed
and isolated transsexual community which has permitted,
and continues to permit, the meaning of transsexual and
transsexualism to be lost in the totalised and monistic
identity of transgender. After all, it has been the
imperative for most people of transsexual background,
having already lost their families in their choice of
life over conformity, to 'pass' or disappear into the
larger community so as not to further suffer the
prejudice and punishment that the ownership of their
reality and their histories has almost inevitably
delivered. Given the increasing emergence of publicly
identifiable individuals who are prepared to publicly own
their transsexualism and the rehabilitation of that
identity through the deeper appreciation and
understanding that now begins to exist, I am optimistic
that in the foreseeable future a true community of people
who experience transsexualism capable of a clear and
distinct community voice will emerge. Of course, an
essential factor in facilitating this process is law
reform; both in its common law aspect as per Re
Kevin and in its legislative aspect as per State
and Territory anti-discrimination and births, deaths and
marriages legislation adequately recognising the distinct
legal interests of each of the transsexual, Intersex and
transgender communities;
15.10 In the meantime, in respect
of the terms “transsexualism” and
“transgender”, there is now no longer any
justifiable reason or excuse to fail to do justice to
either the transsexual or the transgender communities by
continuing to fail to distinguish between these two
significantly different aspects of human
experience.
15.11 There seems also to be no
justifiable reason for the transsexual community not to
respect the sensitivity and understandable goals of the
Intersex community so as to refrain from the unnecessary
use of the term intersex in relation to transsexualism
without seeking to distinguish the two distinct
communities or in the absence of the need to identify
transsexualism as a form of intersex condition in order
to clarify its own meaning. At the same time I am
conscious that in many aspects of legislative reform the
interests of people who experience transsexualism and
people who experience intersex conditions requiring the
reassignment of legal sex are identical. I am, of course,
open to suggestion as to other and better ways of seeking
to honour both communities;
3 Some
of the same or similar terminology is used in other Papers
prepared for the Forum, and in particular the Paper of Mr
Anthony Briffa, but are given significantly different
definitions and meanings. In particular, I take issue with
the definitions of transsexualism contained in Anthony's
Paper. It seems to me that such definitions of
transsexualism are prone to confuse and result from an
attempt to distinguish the condition of transsexualism from
what are now called Intersex conditions. With the respect
due to Anthony as an undoubtedly effective and enthusiastic
advocate on behalf of his community, to the extent that the
definitions of transsexualism contained in Anthony's Paper
could be perceived to describe transsexualism as a
psychiatric or psychological malady or predicament in the
Corbett tradition (rather than the biological predicament it
has been so clearly shown to be by medical science and as
has been so clearly recognised for the purposes of the law
of Australia in Re Kevin), they are wrong and/or misleading.
At the same time I acknowledge Anthony's subsequent oral
assurance generously provided to me that it was not his
intention when drafting his Paper to say that transsexualism
was anything other than a biological predicament and a
natural variation in human sexual formation.
back
4
Sometimes
called "phenotype". Also see "Definition and Synopsis of
the Etiology of Adult Gender Identity Disorder and
Transsexualism" and the expert medical evidence in Re
Kevin referred to in footnote 1. back
5
See the
expert evidence adduced in Re Kevin. back
6
Ibid. and
op cit "Definition and Synopsis of the Etiology of Adult
Gender Identity Disorder and Transsexualism".
back
7
The
Macquarie Dictionary, 2nd ed, editors Delbridge, Bernard,
Blair, Peters and Butler, 1992, The Macquarie Library Pty
Ltd, Macquarie University, NSW 2109 Australia at page 1858.
back
8
op cit
Re Kevin as per footnote 4. In particular, see the
evidence of Prof Milton Diamond and Dr Jan Lesley Walker. To
quote Diamond: "I am convinced that "brain-sex" or
"mental-sex" is a biological reality that explains many
aspects of sexual identity. I have published that this inner
sense of sexual identity is the factor that alerts an
individual as to whether or not the social conditions
imposed by Society are or are not appropriate (Diamond 1995;
Diamond 1997). It is just that aspect of mentation that
alerted David Reimer to his situation. I believe it is
similar for transsexuals…In the transsexual the
differences between sexual identity and gender identity
manifest themselves early in life and the transsexual
individual strives to have the two identities come into
concert. The brain/mind being sex differentiated during
prenatal and neonatal development sees the discrepancy
between inner core sexual identity and external gender. The
solution for reconciliation, as seen by the transsexual, is
"Change my body, not my mind" (Diamond 1994)…One's
sexual identity is how the individual sees self at core;
one's gender identity is how the individual sees self in
society… I have published (Diamond 1999) that it is my
belief that transsexualism is a form of intersex." And to
quote Walker: "The literature on transsexuals suggests that
there is an early and enduring realisation that they are
actually of the opposite sex and that this is concordant
with their behaviour from early childhood… I would
agree with the contention therefore that transsexuals form
part of the spectrum of intersex because there is
discordance between their biologically apparent sex and
their sociological and psychological sex.";.
back
9
op cit The
Macquarie Dictionary, 2nd ed, at page 920. back
10
Ibid. at
page 825. back
11
op cit
Re Kevin. For a number of reasons set out in expert
evidence, and in the husband's evidence, such as medical
risk, present efficacy, cost and family obligation, the
Husband in Re Kevin, like many males experiencing
transsexualism, had not undergone phalloplasty (penile
construction) at the time of the hearing. The husband was
still considered by the same expert opinion to have
successfully undergone sex affirmation treatment sufficient
to permit medical certification pursuant to sections 32B and
32C of the Births, Deaths and Marriages Registration Act
1995 (NSW). back
12
See expert
evidence in Re Kevin. back
13
Although
"transgender" has been used as a inclusive 'catch-all' term
to include transgender individuals, people who experience
transsexualism as well as other types of people who exhibit
nonconformist gender behaviour, such vague and generalised
usage was never useful or accurate. The word "transgender"
was, in fact, coined by cross-dresser Virginia Prince to
distinguish between someone who had no desire to change or
alter either body or legal sex but wished to live out a
gender expression contrary to their sex from a person who
experienced transsexualism. See an interesting discussion by
Leslie Feinberg (a person who identifies as transgender) in
the Preface to her book "Transgender Warriors"1996, Beacon
Press, Boston Massachusetts, USA . It is my opinion that the
generalised use of the word "transgender" not only robs that
word of its meaning, but needlessly creates confusion; both
of expression and understanding. For an example of this
confusion and resulting convoluted expression one need only
look to the use of the terms "transgender" and "recognised
transgender" in the New South Wales Anti-Discrimination
Act.. back
14
For another
interesting discussion of such terminology see "Sex and
Gender are Different: Sexual Identity and Gender Identity
are Different", Milton Diamond, PhD. Clinical Child
Psychology & Psychiatry-Special Issue In Press for July
2002. University of Hawaii, John A Burns School of Medicine
Department of Anatomy and Reproductive Biology Pacific
Centre for Sex and Society. 1951 East-West Road, Honolulu,
Hawaii 96822 USA phone: (808) 956-7400,facsimile: (808)
956-9481 Diamond@hawaii.edu. Also see the discussion by
Leslie Feinberg in the Preface to her book "Transgender
Warriors"1996, Beacon Press, Boston Massachusetts, USA.
back
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RACHAEL
D. WALLBANK
ACCREDITED SPECIALIST
(FAMILY LAW) LSNSW
The
Legal Environment Following Re Kevin:
New Perceptions And Strategies For Effective Law Reform
In Respect Of The Legal Rights Of People Who Experience
Variation In Human Sexual Formation And
Expression
A DISCUSSION
PAPER
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WALLBANKS
LEGAL
1 MARION STREET
STRATHFIELD, NSW, 2135
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Tel:
(02) 9764 2922
Fax: (02) 9764 2900
Email: wallbanks@bigpond.com
Web: www.wallbanks.com
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