previous page | index | next page Transsexualism, Australian Common Law and Re Kevin 16 Re Kevin established a method for the subtle determination of a person’s common law sex having regard to aspects of biological sex, including evidence of the sexual differentiation of the human brain, whether a person had undergone sex affirmation treatment - being conclusive hormonal and/or surgical treatment to harmonise the sexually differentiated features of the person's body with the person’s brain (confirmation of transsexualism and decision to affirm brain sex), as well as a person’s lived, cultural sex or gender (perception by 17 In paragraph 3 of his decision Justice Chisholm acknowledged that “…the court has had the advantage of extremely detailed and scholarly presentations on each side, as well as evidence from some of the most distinguished medical experts in the world in this field. I am very grateful.” This observation was affirmed by the Full Court. 18 Re Kevin also determined that the words ‘man’ and ‘woman’ when used in legislation unless otherwise indicated have their ordinary everyday meaning according to Australian usage and that such meaning includes so called “post-operative transsexuals”. Specifically, Re Kevin established that there are circumstances in which a person who at birth had gonads, chromosomes and genitalia indicative of one sex, could nevertheless be legally of the other sex. Justice Chisholm also found, and the Full Court affirmed, that on the balance of probability, the overwhelming scientific evidence as to the physiological basis for a person’s core sex identity, or brain sex, was to be accepted. In paragraph 13 of his Judgement Justice Chisholm notes that there have traditionally been problems in respect of word usage and understanding concerning people who have experienced transsexualism in that for some the word “transsexual” may suggest a sexual transition or a passing from one sex to other. His Honour noted that while that word may reflect the physical changes to the individual’s body associated with surgery and/or hormonal treatment, it does not convey the fact that transsexuals say that they have always experienced themselves as belonging to the other sex before, as well as after, sex affirmation treatment. The Full Court also specifically affirmed this passage of Justice Chisholm's decision. 19 Notwithstanding the European Court of Human Right’s decisions in I –v- The United Kingdom and Christine Goodwin –v- The United Kingdom, there is some concern that confusion between transsexualism and transgender and their respective legal needs in the United Kingdom may well result in legislation that, while making it possible for people to have their legal sex reassigned without the requirement of undergoing conclusive sex affirmation treatment (and thus permitting people who have not experienced either transsexualism or Intersex to effect a reassignment of their legal sex), will require such people’s applications for legal sex reassignment to be approved by a board or boards of presumably 'wise persons'. At the same time, it is already apparent that the price of such misconceived reform of the system for the determination of legal sex in the United Kingdom will be the loss of equality of legal and social rights, and conditions or restrictions on the legal status of the persons whose sex has been legally reassigned pursuant to such legislation. I understand such proposed restrictions to include even restrictions on the type of employment such people can undertake in their reassigned legal sex. I trust that such misconceived and inequitable legislative reform will never be contemplated in Australia. In my opinion an individual's personal affirmation of sexual identity from time to time (be it a month, a year or otherwise) confirmed only by the assessment of a board of 'wise persons' while the individual continues to retain a body fully able to function in the individual's originally, or first, assigned legal sex, will never fulfil the purpose or ends, or attain the acceptance and recognition, necessary to obtain the acceptance of the vast majority of the culture sufficient to deliver true equal legal and social rights for people who have their legal sex reassigned. As I say otherwise in this Paper, it is my submission that the proposal for legal sex reassignment, based on assertion of sex identity and lived sex alone, is only of peripheral relevance, in any case, to the predicament of people who experience transsexualism. The only academic criticism I have heard of Re Kevin, is the proposition that it is a retrograde step in "transgender jurisprudence" to link a person's right to have their legal and/or common law sex reassigned to biological considerations such as brain sex or to cultural considerations, such as whether or not a person is perceived to be of one sex or the other. For the reasons referred to above, and otherwise in this Paper, I confirm my view that this criticism is fundamentally misconceived upon the bases that the judgment in Re Kevin concerns transgender people or that for people who experience transsexualism conclusive sex affirmation treatment is only undergone in order to effect a reassignment of common law and/or legal sex and is a burden that should not otherwise be imposed by the law. As I discuss otherwise in this Paper, people who experience transsexualism undergo conclusive sex affirmation treatment, if medically and financially able, for its own sake and the sexual harmony of mind and body that it brings. It is a personal imperative. At the same time, and also as I discuss otherwise in this Paper, a reassignment of legal sex does not take place in isolation from the rest of the culture but has implications for the determination of sexual identity for the whole of the culture. Any system for the determination, and reassignment, of legal sex that defies the understanding of the culture as a whole will not gain the acceptance of that culture essential for the fulfilment of the its purpose. 20 Re Kevin of direct relevance to a consideration of the current operation of various statutes concerned with transsexualism, either expressly or by implication, throughout Australia and the reform of that legislation so as to better serve the needs of people who have experienced transsexualism and other forms of natural variation in human sexual formation who require a reassignment of legal sex. The extensive expert and lay evidence in the case and the Courts’ discussion of that evidence, both in the first instance and an appeal, together with the resultant findings of fact and law, illuminate both the predicament of transsexualism itself as a natural variation in human sexual formation and the fallible regime whereby sex is first determined and assigned for the purposes of birth certificates as a record of legal sex and identity. 21 By way of example, I refer to the following passages in Justice Chisholm's judgement all of which have been specifically affirmed by the judgment of the Full Court of the Family Court of Australia: 21.1 At paragraph 247: "In my view the expert evidence in this case affirms that brain development is (at least) an important determinant of a person's sense of being a man or a woman. No contrary opinion is expressed. All the experts are very well qualified. None was required for cross-examination, nor was nay contrary evidence called". 21.2 At paragraph 248: "In my view the evidence is, in essence, that the experts believe that the brain development view is likely to be true, and they explain the basis for their beliefs. In the circumstances, I see no reason why I should not accept the proposition, on the balance of probabilities, for the purpose of this case." 21.3 At paragraph 252: "The traditional analysis that they are "psychologically" transsexual does not explain how this state came about. For example, there seems to be no suggestion in the evidence that their psychological state can be explained by reference to circumstances of their upbringing. In that sense, the brain sex theory does not seem to be competing with other explanations, but rather is providing a possible explanation of what is otherwise inexplicable". 21.4 At paragraph 253: "In other words (as I understand it) the brain of an individual may in some sense be male, for example, though the rest of the person's body is female". 21.5 At paragraph 265: "In my view the argument in favour of the "brain sex" view is also based on evidence about the development and experience of transsexuals and others with atypical sex-related characteristics. There is a vast literature on this, some of which is in evidence, and I can do no more than mention briefly some of the main points". 21.6 At paragraph 268: "It seems quite wrong to think of these people as merely wishing or preferring to be of the opposite sex, or having the opinion that they are". 21.7 At paragraph 270: "But I am satisfied that the evidence now is inconsistent with the distinction formerly drawn between biological factors, meaning genitals, chromosomes and gonads, and merely "psychological factors", and on this basis distinguishing between cases of inter-sex (incongruities among biological factors) and transsexualism (incongruities between biology and psychology)". 21.8 At paragraph 272: "in my view the evidence demonstrates (at least on the balance of probabilities) that the characteristics of transsexuals are as much "biological" as those of people thought of as inter-sex". 21.9 At paragraph 136: "I agree with Ms Wallbank that in the present context the word "man" should be given its ordinary contemporary meaning. In determining that meaning, it is relevant to have regard to many things that were the subject of evidence and submissions. They include the context of the legislation, the body of case law on the meaning of "man" and similar words, the purpose of the legislation, and the current legal, social and medical environment. These matters are considered in the course of the judgment. I believe that this approach is in accordance with common sense, principles of statutory interpretation, and with all or virtually all of the authorities in which the issue of sexual identity has arisen. As Professor Gooren and a colleague put it:- "There should be no escape for medical and legal authorities that these definitions ought to be corrected and updated when new information becomes available, particularly when our outdated definitions bring suffering to some of our fellow human beings." previous page | index | next page			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 WALLBANKS LEGAL 1 MARION STREET STRATHFIELD, NSW, 2135 Tel: (02) 9764 2922 Fax: (02) 9764 2900 Email: wallbanks@bigpond.com Web: www.wallbanks.com Home ·  About M.A.N. ·  Activism ·  F.A.Q.'s ·  Legal ·  Documents ·  Publications ·  Education ·  Health ·  Supporters ·  Links ·  Sitemap ·  Contact
	Last modified: 28 February 2003

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