Sunday, 19 March 2006

Transsexualism, Transamerica, and Australian Law

High-Profile Lawyer Rachael Wallbank spoke about her legal situation in an article in the Age. Her experience are different from my own, but the parallels are striking.
Lawyer Rachael Wallbank turned 50 on Saturday. Among those sharing the family law specialist’s milestone were her grown children, Rebecca, Kate and James. They often refer to her as Rachael, but still think of her as — and sometimes still call her — Dad.
I answer to "Zeddie", but yes, "Daddy" too. I always will.
The lives of people with transsexuality, and their emotional, medical and legal battles have entered the mainstream’s consciousness with the release of firsttime writer-director Duncan Tucker’s groundbreaking film Transamerica, starring Felicity Huffman in a critically lauded role. Huffman scored a Golden Globe in January for her performance and was favoured to win a Best Actress Oscar on Sunday for her role as Bree, previously known as Stanley, who was born with transsexualism.
Unfortunately, very few people in Australia will get the opportunity to see this film. Transamerica is appearing at the Dendy Cinemas - all four of them - and at a handful of speciality cult theatres such as Electric Shadows. There's one of the Village chain showing it, in Victoria, and one of the Greater Union chain in New South Wales. The dominant Hoyts chain isn't showing it at all. Not exactly huge coverage for a major Oscar nominee film in a nation of 20 million people. One would almost think that the film was too hideously embarressing for everybody to have it shown.
Wallbank was also impressed by Bree facetiously telling her psychiatrist how funny it is that cosmetic surgery can "fix" a psychiatric condition: a reference to the continued treatment in some medical and cultural quarters of transsexualism as a mental disorder, sometimes referred to as "gender dysphoria".
I found that scene particularly poignant too.
Wallbank’s views are noteworthy, and not only for the cause of the estimated 5000 Australians who live with transsexualism. Her efforts in the Family Court on behalf of her clients "Kevin and Jennifer" — not their real names — who wed in 1999, established marriage rights for couples where one partner has already had sex affirmation surgery.

Kevin’s sex had been "reassigned" in 1995. The full court of the Family Court affirmed the marriage in 2003, dismissing the Commonwealth’s objection that Kevin could not qualify as a husband because he was born with female genitalia. In doing so, the court significantly rebuffed the Howard Government’s views about who should be allowed to marry.

In Re Kevin is a very important milestone in case law. In particular :

"The words 'man' and 'woman' when used in legislation have their ordinary contemporary meaning according to Australian usage and that meaning includes post-operative transsexuals as men or women in accordance with their sexual reassignment."

Well, Hurray for common Sense.

This is exactly the opposite of opinion in many other places, for example West Virginia.
Fears that West Virginians who undergo gender-reassignment surgery might test the state’s ban on same-sex marriage prompted changes to the state’s vital records system that the House of Delegates unanimously passed Tuesday.

Among its numerous provisions, House Bill 4565 had originally allowed a court order to change a birth certificate following such surgery. But the House Government Organization Committee amended it to block such a change, even if approved by a judge.

Since birth certificates are used to obtain marriage licenses from county clerks, some committee members cited the 2000 state law that defines marriage as being between a man and a woman.

"The question was, could they use a new one to get around the law," said Delegate Ron Walters, a Republican. "That raised some eyebrows."
Only three states — Tennessee, Idaho, and Ohio — refuse to provide residents with a new or amended birth certificate after gender reassingment surgery, said Shannon Price Minter, legal director of the California-based National Center for Lesbian Rights.

Minter, whose group also studies and advocates on transgender issues, called West Virginia’s legislation "very cruel and irrational."

"That is no more defensible than passing a law that is meant to harm someone with any other medical condition," Minter said Tuesday. "What is the harm if a transgender person who has completed sex reassignment surgery then decides to marry a person of the other gender?"
The West Virginia Family Foundation worked behind the scenes on the bill, executive director Kevin McCoy said.

"We think all of that is part of the homosexual agenda’s attempt to get away from the recognized, traditional, male-female relationship," McCoy said.

Minter said transsexualism is wrongly equated with homosexuality.

Oi Ve.

The depths of ignorance shown there are truly breathtaking.

Back to the Age article:
In essence, Wallbank helped to advance the understanding that sexual identity — as manifested in transsexualism — is biological and innate and not a psychological disorder or chosen.

Her case on behalf of Kevin and Jennifer introduced influential scientific expert evidence about "brain sex" into Australian common law. It means that the common assumption that genitalia automatically determine if we are a boy or a girl has been overthrown. Rather, as Wallbank puts it, sexual identity is "determined between the ears, and not between the legs".

But there are still many battles to be won. Wallbank likens Kevin and Jennifer’s actions to those of Rosa Parks, the woman who sparked the US civil rights movement by refusing to stand for a white man on a bus in Montgomery, Alabama, in 1955.

I still think this is hyperbole, at least in an Australian context. But seeing the West Virginian story above, and many, many others like it, maybe not.
In the journal Nature in 1995, a team of endocrinologists and sexologists published a landmark paper that established the "brain sex" concept and challenged the gender dysphoria model.

In Kevin and Jennifer’s case, two of those experts, Dutch professor Louis Gooren and American professor Milton Diamond, gave evidence accepted by the court that some people are born with a brain that recognises them as a member of the sex opposite to that indicated by their chromosomes, genitals and gonads at birth. This is the proposition the Family Court of Australia recognised, concluding that transsexualism is a biological variation in human sexual formation, rather than a psychological disorder.

This proposition is contentious - the evidence for this is poor. But the other side was able to produce not a scintilla of evidence to refute it, nor even a shred to support an alternate hypothesis. In the three years since the ruling, nothing but supportive evidence has been found, though little enough of that.
Wallbank, however, says her own sex affirmation as a woman never stopped her being a father. James was five when his Dad "transitioned" from Richard to Rachael. As a little boy, James tried to correct the occasional stranger who referred to Rachael as his mother, telling them she was his father.

Yes, I know that feeling. My son Andrew had nearly turned four when the changes to Daddy's body became too noticeable to ignore, and had just turned four when I started transition (it's supposed to be the other way around, start transition then get changes, I know). I now answer to "Zeddie", but to "Daddy" too. I always will.
Wallbank thinks they (her children) had to mature sooner than their peers. But she does not think they have experienced any significant emotional difficulties as a result of her affirming her identity as a female and as their father. "I loved being a father. I really liked that role, and I still do."

Yes. I thought I'd have to give that up, and it was the one thing about the whole male schtick I really valued. I'm so glad that I can be a woman, and yet still Daddy too.
Becoming Rachael, in the mid-’90s, was tough, despite her children’s ready acceptance.

It's not exactly easy in the 2000's either. I'm incredibly lucky, I've had it far easier than anyone else I know. Of course "easy" is a relative term in a situation like this, "hard" is always fatal, quite literally and with no exaggeration.
While Wallbank has experienced her sexual identity as fixed, her sexuality or sexual orientation appears more fluid. She loved and was sexually attracted to her wife when they were married but, in transitioning to Rachael, a "light went on", and she became attracted to men. Some might describe this as bisexuality, but Wallbank says she wanted to have a sexual relationship with a man because she could do so with a female body.

(Zoe squirms in embarresment)
Yes, well, ah, um. This is the one area of transition I haven't gotten my head around yet. I don't want my sexual orientation to change, but it's happening anyway. I just have to accept what is. For a terribly strait-laced, conservative, slightly homophobic person like me, coming to terms with myself as being Lesbian was difficult enough, and I'm still not sure I fully accept that in anything other than an intellectual sense. It was a stumbling-block that kept me seeing myself as male, for how could I possibly be attracted to the same sex? Well, now there's far too much evidence that I've always been female for me to deny it, it doesn't pass the "giggle test". And now, like most women, I find guys really kinda interesting, and that is terribly distressing and confusing for me. How could something as fundamental to my personality as sexual orientation change? Still, I've seen greater and more fundamental changes elsewhere. Maybe it was always inside me, just repressed (though that doesn't ring true for me, I know what repressed parts of my personality feel like, and this doesn't feel the same). Maybe it's just a matter of proteins leaving receptors in my brain, the timing would support that.
We can't control who we are. We can control what we do about it though. At this point in time, celebacy looks good. Of course, my feelings may change after surgery, I'm told they usually do.
I have a lot to learn about Sex. Oh, I know the theory, but I can assure all my readers that having the wrong gendered body really makes the whole thing most uncomfortable. Cuddling, Lovemaking, close and loving intimacy is wonderful, but Sex on its own is not joyous, or natural, certainly not relaxing, it feels all wrong.
Still, there's something screamingly funny about a woman being both a 47 year old Father, and a terribly innocent, sexually inexperienced and repressed Virgin.
Discovering what is appropriate for me will be quite a challenge, one I have absolutely no idea how to face. I know this isn't Rocket Science, that I can do.

You may now laugh. I am.
The estimate of 5000 people with transsexualism in Australia is low, Wallbank says, as an unknown number suffer in silence, harm themselves or take their lives. Even trying to talk to a medical practitioner about such lifelong feelings is fraught with potential rejection and ignorance. "To be seen is sometimes to be destroyed," Wallbank says.

Oh Yes. One day I will blog about the first time I saw my family doctor (she's a fantastically good paediatrician) and told her of my problem. It didn't go well. Not al all. She did her best, but to say she was out of her depth is to put it far too mildly.
If pop culture is now making a mark — alongside internet home pages and blogs by people with transsexualism announcing themselves to the world
Hi There!
— the law is far from satisfactory in the eyes of many.

A person whose anatomical sex has been "reassigned" or rehabilitated by surgery can get themselves a new birth certificate under NSW or Victorian law. But people who get married first — as an opposite-sex couple according to genitalia — and then have the same treatment cannot have their legal sex changed unless they get divorced. Otherwise, state authorities believe, same-sex marriage would be effectively sanctioned.

So should two women ever end up married to one another through a medical oddity, one of them must be legally male. And this is supposed to protect the sanctity of marriage? Such a grotesequerie, a perversity, a nonsense can only bring the law, and the institution of marriage, into disrepute. Not since the days of Ancient Egypt, and Hatshepsut the transvestite female Pharoah has such an absurdity been seriously proposed as being "the law".
As well, Australian laws differ significantly from state to state, creating "needless inhumane uncertainty and confusion", Wallbank says.

Oh and it gets worse when someone was born in the United Kingdom, and is resident in the Australian Capital Territory. As I'm finding out.

You have to laugh.

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