Reconstructing Sex Australian and New Zealand Transgender Reform Jurisprudence

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Australian transgender jurisprudence now represents the frontier of transgender law reform, for it is in Australia that the most radical legal reconstruction of sex has recently occurred. In order to understand this claim it is necessary to sketch the background to this reform moment. Transgender jurisprudence is of relatively recent origin. It emerged in the postwar period and coincided with advances in sex reassignment surgical techniques. This jurisprudence has led to two distinct approaches to the legal determination of sex claims. In the first approach the courts have selected particular biological factors and have insisted that sex is determined at birth (the biological approach), (Corbett v. Corbett [1970] 2 All ER 33). This has led to the denial of the sex claims of transgender claimants. Within the second approach the courts have focused instead on present realities and, in particular, on the fact of sex reassignment surgery (the psychological and anatomical harmony approach), (Re Anonymous 293 NYS 2d 834 (1968); MT v. JT 355 A 2d 204 (1976)). This latter approach has enabled legal recognition of sex claims for a variety of purposes.

While the reform approach appears to be gaining the upper hand at judicial1 and, especially, legislative levels (the sex claims of postoperative transgender people have been recognized through legislation in New Zealand and in many states or provinces within the United States, Canada, and Australia, and similar legislation has been enacted by nearly all the European Community members and by other nation states), the biological approach continues to find favor.2 However, these two approaches should not be thought of as mutually exclusive. Rather, they share a number of commonalities. In particular, both approaches have privileged the genital factor in determining sex. Thus within the biological approach three factors are specified, namely, chromosomes, gonads, and genitalia at birth. Where these factors are "incongruent,"

however, it is the genital factor that proves decisive.3 In relation to reform jurisprudence, on the other hand, it is the surgical removal and reconstruction of genitalia subsequent to birth that proves crucial. Moreover, it is not merely a concern with bodily esthetics that has led to this focus. Rather, legal analysis has also exhibited concern over postoperative sexual functioning. In the biological approach this has manifested itself in terms of judicial horror at the prospect of "unnatural" sexual intercourse. Within reform jurisprudence it is the capacity for penetrative heterosexual intercourse postoperatively that has been emphasized repeatedly. In New Zealand the judiciary have dispensed with the requirement of postoperative sexual function (Attorney-General v. Otathuhu Family Court [1995] 1 NZLR 603). However, New Zealand law still requires genital reassignment surgery (see Sharpe, 2002).

Indeed, prior to a recent decision of the Family Court of Australia, no superior court or legislature anywhere in the world had recognized the sex claims of a transgender person whose genitalia had not been brought into "conformity" with his or her psychological sex. In Re Kevin and Jennifer v. Attorney General for the Commonwealth of Australia (Re Kevin and Jennifer v. Attorney-General for the Commonwealth of Australia [2001] FamCA 1074) the court held Kevin, a transgender man who had not undertaken phalloplastic surgery (phalloplasty refers to the surgical construction of a penis), to be a man for the purposes of Australian marriage law. The decision is especially significant, dealing as it does with marriage, for it has been in relation to issues of marriage that the greatest resistance to transgender law reform has been apparent across jurisdictions. In effect the decision rearticulates the reform test of psychological and anatomical harmony, one that had received prior endorsement by Australian courts (R v. Harris and McGuiness [1989] 17 NSWLR 158; Secretary, Department of Social Security v. HH [1991] 23 ALD 58; Secretary, Department of Social Security v. SRA [1993] 118 ALR 467), so as to uncouple sex claims from the genitocentrism of law. In this respect, and while the court placed emphasis on the fact that Kevin had undergone other irreversible surgical procedures (in addition to receiving hormone treatment Kevin had undergone a breast reduction procedure and a total hysterectomy), this decision represents a major step forward for transgender people. For a critique of the decision, see Sharpe, (2003).

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