Guest Blogger

A Conservative Ruling: Australia High Court On Trans Identity

Filed By Guest Blogger | October 08, 2011 4:00 PM | comments

Filed in: Politics, Transgender & Intersex
Tags: Australia, Australian High Court, Gender Reassigment Act, Western Australia

zoe.JPGEditors' Note: Zoe Brain is a sometime rocket scientist, defense analyst, and naval combat system architect, and lives in Canberra, Australia with her partner and son. She blogs at A.E. Brain.

There is a tide in the affairs of men.
Which, taken at the flood, leads on to fortune;
Omitted, all the voyage of their life
Is bound in shallows and in miseries.
On such a full sea are we now afloat,
And we must take the current when it serves,
Or lose our ventures.

--Julius Caesar Act 4, scene 3, 218-224

Yesterday, the Australian High Court -- the equivalent of the SCOTUS -- issued a unanimous ruling about the meaning of an obscure state law. It was a very conservative ruling, entirely in keeping with Australia's rather conservative society.

It said that a man is, for the purposes of that Act (and no other), someone who appears to be a man, who is accepted as male, someone whom any reasonable person would look at and say "that's a guy" - and if transsexual, has had to have some form of body modification to look that way. One doesn't have to examine genitalia, or chromosomes, or anything deeper than superficial social appearance.

The ruling states that sex is a social construct. That when interpreting this particular law, all one has to do is go by common-sense, not some objective but non-obvious scientific standard, as the latter doesn't exist. And that laws should be interpreted humanely, as they're supposed to be beneficial.

From the UK Telegraph:

In the culmination of a three-year legal battle over the issue, the
High Court ruled that characteristics that identify a person as male
or female are "confined to external physical characteristics that are
socially recognisable." This recognition does not require knowledge of
a person's sexual organs, the court said.

The two transsexuals, who have not been named, have had double
mastectomies and testosterone treatment, which has rendered them
infertile, but have not had hysterectomies or penis construction
surgery and still retain some female sex organs.

One of the men welcomed the ruling, saying it would make it easier for
transsexual men to be protected under discrimination laws.

"The High Court has taken a common-sense approach to the
interpretation of the law, recognising that it is unrealistic to
require people to undertake specific, medically unnecessary surgical
requirements that are neither practical nor attainable," he said.

"The decision is completely in line with the recommendations of the
Australian Human Rights Commission, as well as with other, similar
cases around the world."

To have ruled otherwise would have led to a very slippery slope indeed. No surgeon in Australia considers themselves qualified to perform the very complex procedures of phalloplasty or metoidoplasty, necessary to give a trans man a phallus. They refer patients to a few specialists overseas, usually in Serbia or Belgium, literally on the other side of the world. And if a phallus is required, what about other aspects of anatomy? A hysterectomy? A bone-marrow transplant from an XY donor, so that after a number of years the patient's body will be mostly XY?

Yes, chromosomes can change. They do. Stem cells from the donor bone marrow gradually replace the originals in cell-turnover.

See Bone marrow-derived cells from male donors can compose endometrial glands in female transplant recipients by Ikoma et al in Am J Obstet Gynecol. 2009 Dec;201(6):608.e1-8 .

All those court rulings in other jurisdictions based on "chromosomes don't change" and "chromosomes define sex"? Poppycock. As is Janice Raymond's screed based on those two assumptions, Technology on the Social and Ethical Aspects of Transsexual Surgery, Janice Raymond, June 1980, a report for the Carter administration that led to existing medical coverage for Trans people being discontinued.

Raymond wrote:

"Chromosomal sex is the enduring reality which determines biological maleness or femaleness. This can never change."

Horse Puckey. Provably wrong on both counts. The High Court was aware of this when making its decision.

A 46,XY mother who developed as a normal woman underwent spontaneous puberty, reached menarche, menstruated regularly, experienced two unassisted pregnancies, and gave birth to a 46,XY daughter with complete gonadal dysgenesis. -- J Clin Endocrinol Metab 2008 Jan;93(1):182-9

If it's insane to require a bone-marrow transplant to change chromosomes - as they don't matter - it's no better requiring a hysterectomy. Neither a karyotype (gene test) nor an ultrasound is needed to determine sex in everyday life, it's obvious, common-sense.

One in 300 men aren't XY anyway. And there are plenty of men who have had penile cancer, accidents, war wounds, or an Intersex condition who don't have a phallus. A few with Persistent Mullerian Duct Syndrome have dysfunctional wombs. They're still men. Sex is as much a social construct as Race is.

The Western Australian Act requires that a Transsexual have sufficient body modification done to make them the opposite anatomical sex. It doesn't give a definition of "sufficient", leaving that up to the courts to decide. The reason that these men had to go through a three-year legal battle was that court opinions differed.

The men took their case to the High Court after Western Australia's state-run Gender Reassignment Board refused to certify them as male because their sex change surgeries were incomplete.

The case went to the State Administrative Tribunal and then on to the WA Supreme Court of Appeal, which refused to grant the men gender reassessment certificates because they "possessed none of the genital and reproductive physical characteristics of a male, and nearly all of the normal external characteristics and internal reproductive organs
of a female".

The High Court has now unanimously upheld the pair's appeal against that ruling.

That's the end of the line, a final verdict from the highest tribunal in the country. If the Western Australian Parliament doesn't like it, it must change the law. That means a parliamentary debate on what criteria to use, and will require scientific justification and a very public debate. Good luck with that.

That's because of another landmark ruling, this time by the Full Bench of the Australian Family Court, back in 2003. The Re Kevin decision. This examined the scientific evidence for causation of Transsexuality, and some of Justice Chisholm's remarks on that can be found here.

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."

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."

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)."

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."

Queer Theorists may now be livid at this judgement, as it affirms a strict gender binary, and worse, requires that a person be "passable" as their acquired sex. But I must emphasize the narrowness of this ruling. It applies to a state law that assumes as an axiom a strict gender binary, and only when it comes to transsexuals, no others. The ruling only applies to this particular act, in this very narrow context.

Other parts of Western Australian law do not use a gender binary model. For many years now, a birth certificate issued in Western Australia could define Sex as "M", "F" or "X", the last indicating a physically obvious Intersex condition, meaning it was unsafe to categorize the newborn as either sex.

It was this inconsistency with state law, as much as anything else, that drove the Australian Federal Government to allow an "X" option in passports, for such Intersex people - whether their states of birth recognized this biological reality or not.

As a separate issue, findings by the Australian Human Rights Commission regarding transsexual people also led them to drop the requirement for genital reconstruction in order for trans people to have their sex recorded accurately on their passport. This judgement by the High Court, conservative though it might be, is fully in accordance with that. Trans people require some appropriate medical treatment, if only psychological testing, but that's it, and are only eligible for M or F, not X. Hormonal treatment would be usual, genital reconstruction not uncommon, but neither are strictly necessary for legal recognition. A passport should accurately describe both the holder's identity, and their appearance. In case of mismatch, Identity trumps appearance, and for transsexuals, Identity is what the medics say it is, relying on the holder's testimony.

There is a tide in the affairs of men.... somehow, I don't know how, the stars are in alignment for trans and intersex people in Australia. There's been a lot of preparation over many years, programs on national TV in particular, educating people on the subject. These rulings, these policy changes, are just the beginning. Things are happening behind the scenes, as I told a rally outside Parliament House a few months ago.

Somehow, there's no resistance, there is bi-partisan agreement at the federal level anyway. At the end of the year, the report of the Australian Capital Territory (equivalent of DC) Law Reform Council will be given to the ACT legislature. The avowed intent is to act as a template of "best practices" for other states and territories to follow. This has the imprimatur of an advisory panel of legal, medical and scientific experts from the Australian National University behind it, an educational institution that has something of the same reputation within Australia as Yale, Harvard, MIT, Oxford and the Sorbonne. A national icon.

A panel of experts including both intersex and trans people, able to give both expert testimony, and their personal narratives, too, to the rest. We are, after all, drastically over-represented in Academe, especially law, science and medicine.

After years, decades of inaction, things are happening. The Australian Human Rights Commission's "Sex Files" report, which seemed to have been filed and forgotten, is suddenly a live -- and bi-partisan -- issue.

Where there has been pushback, they've lost, though not without a fight. Here's an article from the West Australian.

Applications by the men were initially refused by the Gender Reassignment Board of WA, but the decision was overturned by the State Administrative Tribunal in 2009. The tribunal ordered the board to grant certificates recognizing a change of gender.

Attorney-General Christian Porter, who had intervened in the case, then took the matter to the Court of Appeal to clarify the gender reassignment legislation which came into effect 10 years ago.

Mr Porter's appeal was upheld by a majority decision which found the transsexual men did not have the physical characteristics which would identify them as men according to "community standards and expectations". The majority decision found the transsexuals had none of the genital and reproductive characteristics of a male and had kept
all of the normal external and internal reproductive organs of a female.

The transsexuals have had double mastectomies, testosterone treatment and are infertile, but have not had penis construction surgery or hysterectomies.

This morning, the High Court unanimously upheld the appeals by the transsexual men and reinstated the tribunal's decision to grant them reassignment certificates.

A summary of the judgment said the court had held that for the purposes of the Gender Reassignment Act, the physical characteristics by which a person was identified as male or female were confined to external physical characteristics that were socially recognizable.

"Social recognition of a person's gender does not require knowledge of a person's remnant sexual organs," the judgment summary said.

"The requirements of the Act...are to be given fair and liberal interpretation in order that they achieve the Act's beneficial purposes. The Act contains no warrant for implying further requirements such as potential adverse social consequences or community standards and expectations."

The Liberal Party are the conservatives in Australia, by the way.


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Justus Eisfeld Justus Eisfeld | October 9, 2011 3:34 AM

Thank you for this exceptionally sound and thorough analysis - this is indeed an important ruling precisely because of its conservative nature. It also follows the same kind of reasonings of the German and Austrian Constitutional Courts in similar cases in recent years.

TMI...This is pure Psuedo-psycho/social-gender babble. Since they cannot impress us with their brilliance, (IE: S C I E N C E), they have baffled us with their b*llsh*t.

Now any Tom, Dick, or Hairy, can get the B/C of their choice.

Maaaaavelous...

Sorry you didn't understand it. I have a post-grad certificate in science communication, explaining complex concepts to intelligent but not knowledgeable people, so maybe I can pitch things better for your level. It's not your fault if you don't understand, it's mine.

First, I'll deal with a misconception:

Now any Tom, Dick, or Hairy, can get the B/C of their choice.

Nope. If they're Intersex, anatomically neither male nor female, and don't identify as either, they can get an X on their passport (not birth certificate). This policy has nothing to do with birth certificates, that's a state/territory matter.

As regards Western Australian birth certificates, it means only those who have been diagnosed with Transsexuality, and have also had some body modification, and also look like the sex they transition to, can have their Birth Certificates corrected.

Not exactly "any Tom, Dick or Harry" is it?

Maybe you're confused (and sceptical) because of the "sex is a social construct" bit. I must admit at first sight that seems like so much Humanities Department bafflegab. I also said that sex is as much a social construct as race - which sounds just as bad.

But consider: in the days of laws against miscegenation, someone who was 1/128 African-American was deemed White in some states, so prohibited from marrying a Black - yet Black in others (such as Virginia), so prohibited from marrying a white.

Their race could change just by crossing state lines.

Now, regarding sex:

“Taking this situation to its logical conclusion, Mrs. Littleton, while in San Antonio, Texas, is a male and has a void marriage; as she travels to Houston, Texas, and enters federal property, she is female and a widow; upon traveling to Kentucky she is female and a widow; but, upon entering Ohio, she is once again male and prohibited from marriage; entering Connecticut, she is again female and may marry; if her travel takes her north to Vermont, she is male and may marry a female; if instead she travels south to New Jersey, she may marry a male.”

The objective anatomy, the biological facts, don't change: the interpretation of which race they are, or which sex they are, as the result of those facts does. It is Socially Constructed.

Does that help?