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22 The statutory provisions introduced sometime ago in both South Australia and New South Wales were conceived without the benefit of the consideration of Re Kevin. Subsequent legislation in other States, developing from and/or reproducing that legislation is now similarly outdated by Re Kevin. It is submitted that Re Kevin is a decision which comes to grips with the most recent, relevant and persuasive medical science and law affecting the issues before the States in respect of the provision for the right of an individual to have their legal sex reassigned; particularly in respect of the relevance of the birth event with regard to the determination of a person’s sex. It is submitted that Re Kevin demonstrates a deep appreciation of the subtlety of, and variation, in human sexual formation and of the limitations of external genitalia as an indicator of the sex of a human being and hence the fallibility of our use of external genitalia as the determinant of an individual's sex at or near the birth event in respect of people who experience transsexualism as well as some of the Intersex community. 23 Professor Milton Diamond and eminent Australian Pediatric Endocrinologist, Dr. Jan Lesley Walker, gave evidence in Re Kevin that transsexualism was properly considered to be a form of intersex and that, like some other conditions derived from variations in human sexual formation, the condition of transsexualism is not able to be diagnosed at or near the birth event, but is only able to be detected and subsequently diagnosed later in life once the individual concerned can provide an indication of her or his innate or brain sex as being incongruent with her or his other sexually differentiated bodily characteristics (including external genitalia) and consequently the legal sex first assigned to the individual.15 24 The clear and uncontested evidence is that an individual’s innate or brain sex or core sex identity cannot be altered.16 25 Paediatric endocrinologist Dr. Jan Lesley Walker concludes that where incongruity of sexually differentiated bodily features (phenotype) is detected prior to a child’s sex being first legally assigned, it is now considered best practice to refrain from carrying out any surgical or hormonal intervention in respect of the child, or assigning a legal sex to the child, prior to the child being able to directly or indirectly indicate their core sex identity or brain sex. Thus, from a scientific and medical viewpoint, it is an individual’s core sex identity or brain sex, inalterable or “hard-wired”, which ultimately determines an individual’s sex in all circumstances where it is found that any variation or incongruity in human sexual formation has occurred. 26 It is the sex indicated by a child’s external genitalia alone that are relied upon for the purpose of determining “the sex…of the child” and "the child's sex" for the purposes of all State birth, deaths and marriages legislation in the first instance (or at or near the birth event). While it is not specified, the common sense presumption can be inferred that this regime for the 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 core sexual identity or brain sex. 27 It has now become clear that this standard regime for the assignment of legal sex by the recording of that sex by the Registrar at or near the birth event based upon an inspection of the external genitalia of an individual utterly fails those people who experience transsexualism and others who experience certain types of traditionally recognised intersex conditions. 28 As the individuals concerned are infants at the time of the birth event, given the very nature of the predicament they experience, it is presently simply impossible to detect or prevent this error in the first assignment of their legal sex taking place; such error being only discoverable at such time when they are old enough to express and then independently affirm their brain sex as their predominant sex. 29 Thus, for a number of Australians the standard regime for the assignment of legal sex based upon the appearance of external genitalia at or near the birth event fails because the external genitalia of those individuals as infants do not correctly indicate their innate or brain sex resulting in an error in the particulars of the individual’s sex as first reported to the appropriate Registrar of birth, deaths and marriages for the State and the consequent mistake in the first assignment of the individual’s legal sex as recorded in the relevant Register. 30 While representing a small number of Australians, the individuals concerned, namely people who experience transsexualism and several other classically or traditionally termed intersex conditions, suffer severe, and often critical, life predicaments and experience family, cultural, medical and legal hardship in the process of their assertion of their sex arising simply because of the failure of their external genitalia to indicate that sex at or near the time of their birth event and the failure of the system which determines legal sex to take that difference into account. 31 In these circumstances, it is an entirely proper and consistent application of the powers granted pursuant to the various births, deaths and marriages legislation and in accordance with the principles for the determination of an individual's common law sex in Australia as established by Re Kevin, to actually facilitate the correction of the record of an individual’s sex where the medical evidence available to the Registrar confirms that an individual has chosen to affirm the individual's innate or brain sex by undergoing conclusive sex affirmation treatment so as to bring the individual's sexually differentiated body into better harmony with their innate or brain sex. There should be no distinction between the legislative process for the reassignment of an individual's legal sex applicable to people who have experienced transsexualism and people who have experienced other traditionally recognised intersex conditions. 32 Similarly, it can now be seen that the right of an individual to effect a reassignment of their legal sex in these circumstances is a fundamental human right. The States of Australia should also recognise that as Australia proudly stands at the forefront of the legal recognition of the predicament and rights of people who experience transsexualism and Intersex, there are Australians and residents of Australia or experience transsexualism and Intersex, born in other countries which do not provide for a reassignment of an individual's legal sex, for whom the right to have their legal sex reassigned is no less a matter of fundamental human rights.
16 Ibid. back |
ACCREDITED SPECIALIST (FAMILY LAW) LSNSW The
Legal Environment Following Re Kevin: A DISCUSSION PAPER WALLBANKS
LEGAL Tel:
(02) 9764 2922
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Copyright © 2003 Marcus Patterson
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