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| 42 Much of the confusion and uncertainty associated with the efforts of legislators in New South Wales and elsewhere to grant sex correction/re-assignment rights and anti-discrimination protection to people who experience variation in human sexual formation and expression has been caused by the intrinsic difficulty of facing that task for legislators, and the interest group representatives upon which such legislators have relied, given the absence of a clarified and unified statement of medical science and the law in respect of this human condition. This predicament has resulted in legislation that seeks to perform the virtually impossible legislative act of granting human rights and providing anti-discrimination protection and remedies based on a clumsy quasi-scientific classification of human beings. This attempt has never been successful and continues to frustrate, disappoint and deny human rights to the neglected communities it seeks to serve and assist. Such legislation can now be clearly seen to be misconceived in its failure to distinguish between the legislative needs of people who experience transsexualism (and Intersex) and those described as transgender. In respect of transsexualism (and Intersex) there is the fundamental need for the legal recognition of the right of the affected person to be able to have a reassignment of their legal sex in order to correct the error of initial assignment of sex caused by the nature of their biological predicament. Transgender expression, on the other hand, demands the recognition of the fundamental human right to express gender along the whole of the possible gender continuum; including an expression at odds, or incongruous with, an individual’s legal sex. These interests and needs are factually different and legally distinct. 43 The opportunity now exists for New South Wales to take advantage of the new more subtle perceptions of transsexualism, Intersex and transgender so as to readily consider and introduce 'model' legislative and to take a leading role in establishing uniform legislation in respect of transsexualism, Intersex and transgender rights throughout Australia based directly upon the clear legislative needs of individuals rather than their classification. 44 The propositions and proposals which I have propounded and discussed in this Paper in respect of people who have experienced natural variation in human sexual formation and gender expression are now well founded in medical science and the law of Australia as well as common humanity. Democratic government at its best protects, empowers and facilitates those members of its constituency least able to do so themselves so as to be able to live full and useful lives within that democracy on the most equal terms possible with the rest of the constituency. It would be an act of democratic government at its very best to assist the members, families and loved ones who comprise the neglected communities of the people who experience transsexualism, Intersex and transgender to live whole and worthwhile lives less encumbered by their difference then they have been but for the legislative reforms now sought and appropriately included as the human beings of the sex they know themselves to be and free to express gender without fear in our society. In the great mystery of things, of course, such actions by government, expressing the best of the people they serve, enhance and make whole the existence of us all. RACHAEL WALLBANK 25th February,
2003
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ACCREDITED SPECIALIST (FAMILY LAW) LSNSW The
Legal Environment Following Re Kevin: A DISCUSSION PAPER WALLBANKS
LEGAL Tel:
(02) 9764 2922
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Last modified: 4 March 2003 |
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Copyright © 2003 Marcus Patterson
a GuyFaulk Publication for Men's Australian Network All Rights reserved