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Andrew N. Sharpe[*]
A significant New Zealand decision in transgender jurisprudence.
This article highlights two particular and significant features of the recent New Zealand decision of Attorney-General v Otahuhu Family Court [1995] 1 NZLR 603 in the context of a developing transgender jurisprudence. While a common law body of reform-oriented transgender jurisprudence precedes Attorney-General v Otahuhu Family Court it is contended that the New Zealand decision represents the most ‘progressive’ moment to date within transgender jurisprudence. This is so not only in terms of the court’s findings but also with regard to its obiter statements.
The English decision of Corbett v Corbett [1970] 2 All ER 33, more than any other, inaugurated transgender jurisprudence in the common law world. In this case the petitioner, Mr Arthur Corbett, sought to have his marriage to April Ashley, a male to female transgender person who had undergone sex reassignment procedures, declared a nullity. While the practical effect of such a finding related to questions of maintenance the key legal question required a determination as to the sex of April Ashley for marriage purposes. In answering this question Ormrod J held that ‘sex is determined at birth’ and by a congruence of chromosomal, gonadal and genital factors (Corbett at 48). Accordingly, April Ashley was determined to be a male person. The decision has been subject to sustained and almost universal criticism within academic and law reform circles.[1] Despite this the Corbett decision has been followed consistently by the English courts[2] and has been influential throughout the common law world.
It is the Corbett decision primarily that reformers have sought to overcome. The first superior court decision to depart from the (bio)logic that is given expression in Corbett was the New York case of Re Anonymous 293 NYS 2d 834 [1968]. In this case, which involved an application by a male to female transgender person to have her birth certificate changed to reflect surgical intervention, Pecora J held the applicant to be female because her anatomy had been brought into conformity with her psychological sex. Unlike the Corbett analysis the decision created a legal space for the post-operative transgender body while it simultaneously drew a clear distinction between that body and pre or non-surgical transgender bodies. Moreover, and importantly in the present context, the judgment appears to understand ‘harmony’ as dependent on post-operative vaginal capacity for (hetero) sexual intercourse. It is difficult to account for this requirement in a case concerning an application to change a birth certificate.
The ‘psychological and anatomical harmony’ test formulated by Pecora J in Re Anonymous was consolidated in MT v JT 355 A 2d 204 [1976] at 206. In this case the New Jersey Supreme Court considered valid a two year marriage between a biological man and a post-operative male to female transgender person. Handler J distinguished the earlier New York decisions of Anonymous v Anonymous and B v B,[3] where the court had denied transgender sex claims for marriage purposes, on the basis that the transgender persons in those cases were pre-operative and were therefore incapable of (hetero)sexual intercourse. While reference was made to the fact that MT could no longer ‘function as a male sexually either for purposes of recreation or procreation’ (MT at 206), the court placed particular emphasis on her post-operative sexual capacity and desire:
Implicit in the reasoning underpinning our determination is the tacit but valid assumption of the lower court and the experts upon whom reliance was placed that for purposes of marriage under the circumstances of this case, it is the sexual capacity of the individual which must be scrutinized. Sexual capacity or sexuality in this frame of reference requires the coalescence of both the physical ability and the psychological and emotional orientation to engage in sexual intercourse as either male or female. [MT at 209]
In relation to MT’s sexual functioning the court explored in some detail her genital topography. Drawing on the evidence of Dr Ihlenfeld, MT’s medical doctor, Handler J noted that MT had ‘a vagina and labia which were adequate for sexual intercourse and could function as any female vagina, that is, for traditional penile/vaginal intercourse’ (MT at 206). There is no reference in the judgment or the medical evidence as to any sexual pleasure that MT might derive from her vagina.[4] Rather, law seeks reassurance that MT’s vagina can function as a site of heterosexual male pleasure. The functionality of MT’s vagina in this regard finds further expression in the evidence of Dr Ihlenfeld, who pointed out that MT’s vagina had been ‘lined initially by the skin of [her] penis’, that it would, in all likelihood, later take on ‘the characteristics of normal vaginal mucosa’, and that though at ‘a somewhat different angle, was not really different from a natural vagina in size, capacity and the feeling of the walls around it’ (MT at 206).
This judicial emphasis on (hetero)sexual capacity is also apparent in the US case of Richards v United States Tennis Association [1977] 400 NYS 2d 267. Here the Supreme Court of New York held Renee Richards to be female for the purposes of competing in the US Tennis Open because of ‘overwhelming medical evidence’ that she was female.[5] The concern with functionality is evident in Ascione J’s assertion that transsexuals ‘desire the removal of … [their genital] apparatus and further surgical assistance in order that they may enter into normal heterosexual relationships’ (Richards at 271). Here not only is heterosexual functioning scripted as a prerequisite to legal recognition. Rather, sexual function is understood as the end to be realised through the means of sex reassignment surgery. Here the value and meaning of surgery lies in the male to female body’s capacity to be sexually penetrated. Moreover, Ascione’s anxiety over this matter is assuaged by medical testimony that ‘[f]or all intents and purposes, Dr Richards functions as a woman’ (Richards at 271).
More recently, the test of ‘psychological and anatomical harmony’ has found favour in the Australian context. In R v Harris and McGuiness 17 NSWLR 158 the New South Wales Court of Criminal Appeal held Lee Harris, a post- operative male to female transgender person convicted of procuring ‘another’ male person to commit an act of indecency, to be female for the purposes of criminal law.[6] However, legal recognition proved dependent on what Mathews J described as ‘full’ sex reassignment surgery as distinct from the mere fact of surgical intervention (Harris at 193). While Mathews J pointed out that surgery had deprived Lee Harris of ‘the capacity to procreate or to have normal heterosexual intercourse in her original sex’ (Harris at 194), and while the prospect of having a sexually/procreatively functional male classified as female concerned the court, these forms of irrevocable loss do not ground the decision. Rather, it is the capacity for (hetero)sexual intercourse which ‘full’ sex reassignment provides that proves crucial. In this regard the reasoning of Handler J in MT v JT is replicated.
The requirement of functionality becomes particularly clear in the context of the judicial reasoning adopted toward the fact that Lee Harris was unable to have sexual intercourse as a female due to the closing-up of her vagina post-surgically. In refusing to treat as significant this inability Mathews J placed emphasis on its ‘temporary’ nature. That is to say, it is assumed that this inability will be surgically corrected. It would seem that a permanent inability to engage in (hetero)sexual intercourse would fall short of ‘full’ sex reassignment. It is, perhaps, curious that capacity for (hetero)sexual intercourse should have any bearing upon determining sex for the purposes of the criminal law. This is especially so given the facts of, and the charges brought in, Harris and McGuiness. That is to say, it is difficult to see the relevance of vaginal capacity in relation to the practice of fellatio.[7]
The test of ‘psychological and anatomical harmony’ has also been adopted in New Zealand in the case of M v M [1991] NZFLR 337. More pertinently, this decision represents the first in Australasia to extend the analysis to marriage. In M v M Aubin J upheld the validity of a 12 and a half year marriage between a post-operative male to female transgender person and a biological male. In considering M to be female for marriage purposes Aubin J declined to follow Corbett. In rejecting biological factors as determinative of the issue, and in allusions to the judgments of Ormrod J in Corbett and Nedstadt J in the South African case of W v W [1976] 2 SALR 308, Aubin refused to view M as a ‘pseudo-woman’, as a ‘pastiche’ or as an ‘imitation’ (M v M at 344). Rather, and in purporting to follow the Australian criminal law decision of R v Harris and McGuiness [1988] 35 A Crim R 146, Aubin J took the view that, although the question of sex cannot be decided ‘merely upon sympathetic or compassionate grounds’, a change of sex, ‘in a real sense’ had occurred in the case of M (M v M at 348).
The reference to change ‘in a real sense’ maps Mathews J’s insistence in Harris and McGuiness on the need for ‘full’ sex reassignment surgery. Thus Aubin J states that ‘the proper inference to be drawn from the evidence available to me is that the applicant undertook all medical procedures that it was possible for her to take to change her sexuality from that of a man to that of a woman’ (M v M at 339) and that ‘as a result sexual intercourse is possible and [the applicant] states that she actually achieves a sexual orgasm on occasion’ (M v M at 340). Moreover, while the medical report on which he relied was five years old Aubin J found that there was ‘nothing in the evidence to suggest that there was any change’ (M v M at 340) and concluded that ‘sexual intercourse was possible throughout this marriage’ (M v M at 340). Further, while the marriage ultimately failed, hence the proceedings, Aubin J noted that ‘Mr M [the respondent] did not attribute its failure … to sexual difficulties within the marriage’ and that had that been the case ‘it seems very improbable that the marriage would have lasted as long as it did’ (M v M at 339). In view of the fact that ‘[a] valid marriage in New Zealand law does not require that sexual intercourse takes place’ (Otahuhu at 612) and that ‘[t]here is now no legal means of ending a marriage merely for non-consummation’ (Otahuhu at 612) the significance of Aubin’s multiple references to heterosexual capacity cannot be accounted for by their legal relevance. Rather, they point to the centrality of sexual function in judicial attempts to comprehend the resexing of the body.
Prompted by the case of M v M the Attorney-General made an application on behalf of the Registrar of Marriages for ‘a declaration as to whether two persons of the same genetic sex may by the law of New Zealand enter into a valid marriage where one of the parties to the proposed marriage has adopted the sex opposite to that of the proposed marriage partner through sexual reassignment by means of surgery or hormone administration or both or by any other medical means’ (Otahuhu at 604).
In deciding the case the High Court purported to follow the legal analyses in MT v JT, Harris and McGuiness and M v M insisting that legal recognition of sex claims for marriage purposes was dependent on sex reassignment surgery. The court made it clear that bodily change brought about through hormone administration or other medical means was insufficient in this regard:
There is clearly a continuum which begins with the person who suffers from gender dysphoria (a state of mental unease or discomfort) but who has not chosen to cross-dress on a regular basis and has embarked on no programme of hormonal modification or surgery, through to the person who has embarked on hormone therapy and perhaps had some minor surgical intervention such as removal of gonads, through to the person who undergoes complete reconstructive surgery ... in order for a transsexual to be eligible to marry in the sex of assignment, the end of the continuum must have been reached and reconstructive surgery done. [Otahuhu at 614–5]
Thus, like other common law decisions, the pre or non- surgical transgender body is excluded. However, it would be misleading to suggest that the decision in Otahuhu followed, in any simple way, previous decisions articulating the test of ‘psychological and anatomical harmony’. While Otahuhu shares much with prior transgender jurisprudence recognising sex claims there is a striking difference. In MT v JT, Harris and McGuiness and M V M the judiciary had insisted that legal recognition was dependent on, not merely sex reassignment surgery, but also, post-operative capacity for heterosexual intercourse. In Otahuhu however, while Ellis J stated ‘that in order to be capable of marriage two persons must present themselves as having what appear to be the genitals of a man and a woman’ (Otahuhu at 612), he insisted that they did not ‘have to prove that each can function sexually’ (Otahuhu at 612) for ‘there are many forms of sexual expression possible without penetrative sexual intercourse’ (Otahuhu at 615).
The judgment of Ellis J is significant in this regard irrespective of the New Zealand Births, Deaths and Marriages Registration Act 1995 (No 16), then a Bill before parliament. The legislation provides for the issue of a birth certificate where the Family Court declares that the applicant has undergone surgical and medical procedures that have effectively given the person the physical conformation of the opposite sex (s.28(3)(c)(i)(B)). Nevertheless as Ellis J explained:
Even if a birth certificate was issued for a person in the alternate sex, that would not automatically allow a person to marry as a member of that sex unless the Courts were willing to endorse such a marriage. It is possible that even though a person has a birth certificate as a female, for example, pursuant to such legislation, a Court could still hold that the person did not have the attributes to marry in that sex. [Otahuhu at 616]
The de-emphasis of sexual function in determinations of sex is to be welcomed. There appears to be no good reason why a person’s sexed or gendered identity should in any way be contingent on capacity for sexual intercourse. The abandonment of this requirement is also significant given the complications that can arise after sex reassignment surgery and in view of functional difficulties associated with phalloplasty.[8]
The decision in Otahuhu is significant in another crucial respect. While Ellis J emphasised that ‘the declaration sought is to resolve the capacity to marry and is not intended to resolve questions that arise in other branches of the law such as criminal law, and the law of succession’ (Otahuhu at 607) he departed from previous transgender jurisprudence expressing the opinion that:
It may be that for other legal purposes, a transsexual who has not had reconstructive surgery or only minimal surgical intervention (such as removal of the testes) could be classified in his or chosen sex for certain purposes such as the employment law, criminal law and the law of inheritance. [Otahuhu at 615]
In other words, Ellis J, at the very least, held out the possibility of dispensing with the requirement of anatomical change. While, given the irrelevance of consummation to New Zealand marriage law, it is unclear why marriage law should be exempted from this imagined reform, the obiter statements represent the first time in the common law world that a superior court has been willing to think beyond the test of ‘psychological and anatomical harmony’.[9] This is particularly encouraging in practical terms given that the great majority of transgender persons do not undergo sex reassignment surgery.
This article has highlighted how sex reassignment surgery and heterosexual capacity have operated as preconditions of legal recognition in reform oriented transgender jurisprudence. In departing from Corbett this body of law has not merely abandoned chromosomes in favour of anatomical form. Rather, it is the sexual workings of the body that the judiciary has scrutinised. Indeed, it would seem that it is precisely post-operative sexual functioning that has enabled the judiciary to comprehend the desire for surgical intervention. Against this background the recent New Zealand decision of Attorney-General v Otahuhu Family Court proves significant. The case is important because it de-emphasises sexual function in determinations of transgender sex claims. It also provides some encouragement for the possibility of future departure from the ‘psychological and anatomical harmony’ test that has been at the heart of transgender law reform for the past three decades.
[*] Andrew Sharpe teaches law at Macquarie University, Sydney.©2001 Andrew Sharpe (text)©2001 Stuart Roth (cartoon)email: asharpe@law.law.mq.edu.au
[1] For previous discussion and criticism of the Corbett decision see, for example, Green, D., ‘Transsexualism and Marriage’, (1970) 120 New Law Journal 210; David, E.S., ‘The Law and Transsexualism: A Faltering Response to a Conceptual Dilemma’, (1975) 7 Connecticut Law Review 288; Samuels, A., ‘Once a Man, Always a Man; Once a Woman, Always a Woman — Sex Change and the Law’, (1984) Medicine and Science Law 163; Dewar, J. ‘Transsexualism and Marriage’, (1985) 15 Kingston Law Review 58; and Taitz, J., ‘The Law Relating to the Consummation of Marriage where one of the Spouses is a Post-Operative Transsexual’, (1986) 15 Anglo-American Law Review 141.
[2] See Dec C.P. 6/76 National Insurance Commissioner Decisions; E.A. White v British Sugar Corporation [1977] IRLR 121; Social Security Decision numbers R (P) 1 and R (P) 2 [1980] National Insurance Commissioner Decisions; R v Tan [1983] QB 1053; Peterson v Peterson, The Times, 12 July 1985; Franklin v Franklin [1990] The Scotsman, 9 November; Collins v Wilkin Chapman [1994] EAT/945/93 (Transcript); S-T (formerly J) v J [1997] 3 WLR 1287, [1998] 1 All ER 431.
[3] Anonymous v Anonymous 67 Misc. 2d 982; 325 N.Y.S. 2d 499 (Sup. Ct. 1971); B v B 78 Misc. 2d 112, 355 N.Y.S. 2d 712 (Sup Ct. 1974).
[4] Indeed, a concern with one’s own sexual pleasure is not typically read as a sign of ‘authentic’ transsexual identity within the medical arena. See Benjamin, H., The Transsexual Phemomenon, The Julian Press, Inc, NY, 1966, pp.13-14, 54; Money, J. and Primrose, C., ‘Sexual Dimorphism and Dissociation in the Psychology of Male Transsexuals’, in Green and Money (eds), Transsexualism and Sex Reassignment, The Johns Hopkins Press, Baltimore, P., 1969, pp.121-2; Stoller, R.J, ‘Male Transsexualism: Uneasiness’, (1973) 130 American Journal of Psychiatry 536–9..
[5] In this case the United States Tennis Association had required Renee Richards to pass the Barr (chromosomal) body test in order to be eligible to participate in the women’s singles of the United States Open. The Supreme Court held that requirement to be ‘grossly unfair, discriminatory and inequitable, and violative of her rights under the Human Rights Law of this State’.
[6] Section 81A, Crimes Act 1900 (NSW) (now repealed).
[7] The appellants had been charged in relation to their offer to perform fellatio on a vice squad officer. The emphasis on both ‘psychological and anatomical harmony’ and heterosexual capacity occasioned by surgery has also proved crucial in other Australian transgender cases. See Secretary, Department of Social Security v HH [1991] AATA 94; [1991] 13 AAR 314; Secretary, Department of Social Security v SRA [1993] FCA 573; [1993] 118 ALR 467.
[8] Phalloplasty refers to the construction of a penis in a female to male transgender person. See W.A.W. Walters and M.W. Ross (1986) Transsexualism and Sex Reassignment. Oxford University Press, p.113.
[9] The test of ‘psychological and anatomical harmony’ was supplanted with a test of ‘psychological, social and cultural harmony’ by the Social Security and Administrative Appeals tribunals in Secretary, Department of Social Security v SRA [1992] 28 ALD 361. This decision was overturned on appeal to the Federal Court and its legal reasoning emphatically rejected ([1993] [1993] FCA 573; 118 ALR 467).
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