Sharpe, Andrew N --- "From Functionality to Aesthetics: the Architecture of Transgender Jurisprudence" [2001] MurdochUeJlLaw 4; (2001) 8(1) Murdoch University Electronic Journal of Law

From Functionality to Aesthetics: the Architecture of Transgender Jurisprudence

Author:	Andrew N Sharpe LLB (Hons), LLM Senior Lecturer in Law, Macquarie University Department of Law
Issue:	Volume 8, Number 1 (March 2001)

Contents:

• Introduction
• The Birth of a Jurisprudence
• From (Bio)Logic to Functionality
• From Functionality to Aesthetics
• Conclusion
• Notes

Introduction

1. This article will consider the significance of the New Zealand decision of Attorney-General v Otahuhu Family Court[1] in the context of a developing transgender jurisprudence. It will highlight how, in one respect, this case represents a significant departure from prior, law reform oriented, decisions. That is to say, and for the purposes of determining the sex claims of transgender persons, the case deemphasises a concern over the sexual functioning of the body. While this is to be welcomed it also serves to foreground the bodily aesthetics of law that prior transgender jurisprudence has partially masked through a preoccupation with (hetero)sexual capacity. In other words, the decision highlights how transgender jurisprudence is underscored by a concern with the 'monstrosity' of bodies as much as, and perhaps more than, law's phallocentric imperative. Moreover, it is important not to overstate the departure that Attorney-General v Otahuhu Family Court represents. On the contrary it will become clear that a focus on a shift from functionality to aesthetics, from substance to form, belies an important commonality, other than a continued requirement for surgical intervention, that links the New Zealand decision to prior transgender jurisprudence oriented toward reform. This link is, as we shall see, to be found in judicial anxiety over proximity to the homosexual body. Before considering the shift from functionality to aesthetics within transgender jurisprudence it is first necessary to refer to the landmark English decision of Corbett v Corbett[2] which provides a context to situate transgender law reform.

   The Birth of a Jurisprudence

2. The English decision of Corbett v Corbett, 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.[3] According to this (bio)logic 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.[4] Despite this the Corbett decision has been followed consistently by the English courts[5] and has been influential throughout the common law world. Judicial thinking in relation to transgender persons it would seem always commences with Corbett. That is to say, the development of transgender jurisprudence is to be understood through its relation with Corbett. Thus for the body of reform oriented transgender jurisprudence, traceable most notably to the New Jersey decision of MT v JT,[6] a point of unity has been to think beyond this English decision. However, we shall see that a further unifying theme of law reform jurisprudence, culminating in Attorney-General v Otahuhu Family Court, is to be found in judicial anxiety over proximity to the homosexual body. Interestingly, this commonality links not only law reform judgments, but transgender jurisprudence more generally given that Corbett itself is riddled with homophobic anxiety.[7]

   From (Bio)Logic to Functionality

3. 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.[8] 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 especially difficult to account for this requirement in a case concerning an application to change a birth certificate. In this context, a legal concern over the adequacy of the vagina would seem to be explicable only in terms of phallocentric and performativist assumptions about the female body.

4. The 'psychological and anatomical harmony' test formulated by Pecora J. in Re Anonymous was consolidated in MT v JT.[9] 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,[10] 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",[11] 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.[12]

   The reference to the "psychological and emotional orientation to engage in sexual intercourse" is significant. It suggests that the creation of a 'functional' vagina, while essential, is, in and of itself, insufficient for the purposes of legal recognition of male to female transgender sex claims. Rather, recognition for the purposes of marriage proves to be dependent on the additional requirement of heterosexual desire. In this regard, the legal regulation of MT's body is concerned with more than her submission to genital reconstruction. Law desires to know her desire, to know that it is heterosexual, and to be assured through that knowledge as to the 'authenticity' of MT's transsexuality.

5. 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".[13] There is no reference in the judgment or the medical evidence as to any sexual pleasure that MT might derive from her vagina.[14] 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".[15]

6. This judicial emphasis on (hetero)sexual capacity is again apparent in the US case of Richards v United States Tennis Association.[16] Here the Supreme Court of New York held Renee Richards, a male to female transgender person, to be female for the purposes of competing in the US Tennis Open because of "overwhelming medical evidence" that she was female.[17] 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".[18] 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".[19]

7. More recently, the test of 'psychological and anatomical harmony' has found favour in the Australian context. In R v Harris and McGuiness[20] 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.[21] However, legal recognition proved dependent on what Mathews J described as 'full' sex reassignment surgery as distinct from the mere fact of surgical intervention.[22] 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",[23] 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.

8. 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.[24]

9. The legal analysis in Harris and McGuiness received further judicial endorsement in Australia in Secretary, Department of Social Security v HH.[25] In this case the Administrative Appeals Tribunal upheld a decision of the Social Security Appeals Tribunal that a male-to-female post-operative transgender person was a woman for the purposes of section 25(1) of the Social Security Act 1947 (Cth) and was therefore entitled to an age pension at sixty, rather than sixty-five. While unanimous that the sex of HH was female for the purposes of section 25(1) the panel of three (O'Connor J., Muller and Brennan) produced two distinct judgments. However, for present purposes it is sufficient to point out that the primary judgment (O'Connor J. and Muller) endorsed the story of 'psychological and anatomical harmony'.

10. As in Harris and McGuiness the decision in HH is significant for the way in which it foregrounds heterosexual capacity as a condition of legal recognition. Thus O'Connor J and Muller insist that anatomy must be the overriding factor in sex determination if "overwhelmingly contrary to the assumed sex role".[26] This contention that the female sex role can only be properly fulfilled with the 'right' anatomical parts, specifically a vagina, assumes that the role requires penetrative sex. This phallocentric view of the female sex role finds further expression in the assertion that after reassignment surgery the male-to-female transsexual is "functionally"[27] a member of her 'new' sex. As in Re Anonymous and R v Harris and McGuiness, it is far from clear that vaginal capacity has any relevance to the subject matter of the litigation, namely, an age pension. Indeed, it is the complete lack of relevance in relation to the case facts which serves to emphasise the centrality of heterosexual capacity within transgender jurisprudence.

11. This view finds further support from O'Connor J and Muller in what appears to be a direct quotation from Richards v United States Tennis Association:

    Transsexuals are not homosexual. They consider themselves to be members of the opposite sex burdened with the wrong sexual apparatus. They desire the removal of this apparatus and further surgical assistance in order that they may enter into heterosexual relationships.[28]

    As in the previous cases cited heterosexual capacity proves to be more than an essential precondition of legal recognition. It is through an analysis around functionality that law comprehends and makes sense of the desire for and the fact of sex reassignment surgery. In this regard law conflates gender identity and sexual desire in thinking about transgender persons. Further, the analysis adopted in HH reproduces a view of heterosexual relations as realisable only through penetrative sex. Moreover, the statements that "transsexuals are not homosexual" and that they desire "surgical assistance in order that they may enter into heterosexual relationships", apart from and through erasing gay, lesbian and other non-heterosexual transgender subjectivities, serve once again to bring to the surface judicial anxiety over proximity to the homosexual body when dealing with transgender sex claims. The view that the production of heterosexual capacity is central to this line of reform oriented jurisprudence finds further expression by the Federal Court of Australia in Secretary, Department of Social Security v SRA.[29] This case concerned a pre-operative male to female transgender person who had been recognised as female by the Administrative Appeals Tribunal for the purposes of a Wife's Pension. The tribunal departed from the test of 'psychological and anatomical harmony' relied on in prior reform oriented jurisprudence preferring instead a test of 'psychological, social and cultural harmony' thereby dispensing with anatomical considerations.[30] On appeal the Federal Court rejected this approach emphatically rearticulating the 'psychological and anatomical harmony' line. In the process the court stressed that SRA, unlike a male to female post-operative transgender person, was not "[f]unctionally ... a member of her new sex and capable of sexual intercourse".[31]

12. The test of 'psychological and anatomical harmony' has also been adopted in New Zealand in the case of M v M.[32] 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,[33] Aubin refused to view M as a "pseudo-woman",[34] as a "pastiche"[35] or as an "imitation".[36] Rather, and in purporting to follow the Australian criminal law decision of R v Harris and McGuiness,[37] Aubin took the view that, although the question of sex cannot be decided "merely upon sympathetic or compassionate grounds",[38] a change of sex, "in a real sense"[39] had occurred in the case of M.

13. 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"[40] and that "as a result sexual intercourse is possible and [the applicant] states that she actually achieves a sexual orgasm on occasion".[41] 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"[42] and concluded that "sexual intercourse was possible throughout this marriage".[43] Further, while the marriage ultimately failed, hence the proceedings, Aubin 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".[44] In view of the fact that "[a] valid marriage in New Zealand law does not require that sexual intercourse takes place"[45] and that "[t]here is now no legal means of ending a marriage merely for non-consummation"[46] 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 function in judicial attempts to comprehend the resexing of the body. In M v M, as in the earlier cases considered, knowledge of heterosexual capacity and practice of the transgender body serves to reduce judicial anxiety over proximity to homosexuality.

14. This anxiety over homosexuality is evident in Aubin's judgment in another respect. Thus, Aubin J. asks rhetorically whether the surgery undertaken by M amounted to "no more than some ultimately futile attempt to change her from an anguished Mr Hyde into a well-adjusted Mrs Jekyll, producing a kind of hermaphroditic mutant unable to enter into a valid marriage with a man, or indeed with a woman".[47] This passage is revealing irrespective of, and perhaps despite, the fact that Aubin J. did not view M's sex reassignment surgery as futile. The literary reference to Jekyll and Hyde invokes the notion of the monstrous body. Moreover, it is clear from the reference to "an anguished Mr Hyde" that it is the pre-operative body that Aubin views as monstrous. This invocation of the figure of the monster is interesting, and perhaps revealing, given the etymology of the term 'monster'. While there is some debate about the term it would appear to come from monere, to warn, or monstrare, to show forth or demonstrate.[48] Both these words, then, and importantly, refer to signs as well as defective births or malformations. It is contended that one sign that the pre-operative body emits before the legal gaze is the sign of homosexuality. In particular, the male to female pre-operative body is imagined as the locus of sodomy. Thus it is not merely that the coupling of the words "hermaphrodite" and "mutant" represent a heightened moment of insensitivity toward transgender and intersexual persons or that Aubin J.'s resort to the "hermaphroditic mutant" serves to remind us that law cannot, and will not, think sex in any other than binary, oppositional and genitocentric terms that calls for attention. Rather, the invocation of the monstrous serves to issue forth the spectre of homosexuality. This negation of the sex claims, and the homosexualisation, of the pre-operative body serve as prelude to the moment of departure from Corbett. That is to say, the depiction of the pre-operative body as monstrous serves to reduce anxiety with regard to the (re)sexing of M's body which the court subsequently sanctions.

    From Functionality to Aesthetics

15. Before turning to the decision of Attorney-General v Otahuhu Family Court[49] it is first necessary to return to the judgment of the Federal Court of Australia in Secretary, Department of Social Security v SRA.[50] For it is here that the shift from function to aesthetics within transgender jurisprudence is first evident. After expressing satisfaction with regard to post-operative male to female heterosexual capacity, Lockhart J. contended that:

    The female-to-male transsexual is probably in a rather different situation because even successful surgery cannot cause him to be a fully functional male, although he can be given the appearance of male genitals.[51]

    This view is both curious and problematic. In the first place, judicial comparison of female to male and male to female transgender bodies serves to highlight law's reproduction of the active/passive sexual dichotomy. The 'inadequacy' of the female to male transgender body is inextricably tied to a legal assumption about the (hetero)sexual practices it is to perform. Further, because law reads the vagina as absence or lack it is easier for the judiciary to be satisfied as to the post-surgical sexual functioning of the male to female transgender body.[52] The penis is clearly viewed as a more complex organ, one considerably more difficult to replicate.

16. However, in the present context the significance of Lockhart J's statement that "successful surgery cannot cause [a female to male transgender person] to be a fully functional male" lies in the fact that this in no way precludes legal recognition for the purposes of social security provisions. That is to say, Lockhart J. makes it quite clear that the post-surgical female to male transgender body is to be regarded as male irrespective of a capacity for heterosexual intercourse.[53] It is less clear whether the same view is taken with regard to the male to female transgender body as Lockhart J. places emphasis here on post-surgical vaginal capacity for heterosexual intercourse. Thus, at least, in relation to the female to male transgender body the decision in SRA differs from MT v JT and Harris and McGuiness, where legal recognition and heterosexual capacity were viewed as inextricably connected. To the extent that these obiter statements in SRA depart from these decisions, that departure might be explicable in terms of a view of social security legislation as being beneficial in character.

17. In Attorney-General v Otahuhu Family Court this analysis is applied to the case facts. This is perhaps especially significant in that the case is concerned with marriage, an area of law traditionally most resistant to transgender sex claims. Moreover, it is clear that the decision applies to both male to female and female to male transgender persons. 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".[54]

18. In deciding the case the New Zealand 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.[55]

    Thus, like other common law decisions, the pre or non-surgical transgender body is constructed as necessary 'outside' to a resexed transgender body that is given a presence within law. 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"[56] he insisted that they did not "have to prove that each can function sexually"[57] for "there are many forms of sexual expression possible without penetrative sexual intercourse".[58]

19. The uncoupling of sex reassignment surgery from the capacity for heterosexual intercourse is significant as it serves to highlight law's concern over bodily aesthetics. While an aesthetic concern over bodies is a consistent theme of transgender jurisprudence it is usually masked, at least partially, by a preoccupation with heterosexual capacity. In the judgment of Ellis however, law's anxiety over bodily aesthetics is foregrounded. Irrespective of sexual functioning, and guided by an obvious genitocentrism, Ellis J. seeks, and finds, reassurance in the fact that the male to female post-operative body "can never appear unclothed as a male"[59] and that the female to male post-operative body "can no longer appear unclothed as a woman".[60] Absent a concern over sexual functioning law's view of phallic female, and vaginaed male, bodies as monstrous becomes all the more evident as does the homosexual sign they emit in the legal imaginary. These monstrous bodies are required to undergo "a risky surgical procedure"[61] if they are to accord with law's aesthetic sensibility and to reduce homophobic anxiety.

20. 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"[62] 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.[63]

    In other words, Ellis J., at the very least, held out the possibility that a superior court might dispense with the requirement of anatomical change. However, while this aspect of the judgment is, perhaps, to be welcomed the potential for differential treatment of transgender bodies across legal subject matters serves to redraw attention to the bodily aesthetics of law. That is to say, why is it that law can entertain the possibility of creating a legal space in the areas of employment, crime and inheritance for the monstrous body of marriage law? or to put it another way, why is it that law's aesthetic sensibility cannot be compromised in the marriage context? Such questions might be responded to in a number of ways. One possible explanation might invoke a visibility/invisibility distinction. That is to say, the genital region of the body, which law seeks to police, while visible to parties to a marriage, is not visible in the other contexts referred to by Ellis J. While such an argument may have some explanatory power it appears dubious in the criminal law context where a number of sexual offences would locate the genitalia of non or pre-surgical transgender bodies on the visibility side of the distinction.

21. It is my contention that a more convincing explanation for differential treatment of transgender bodies in the marriage context lies in the sexual significance genitals have in/for law. In other words, and as we have already seen, legal anxiety over homosexuality surfaces whenever parties whose genitals are not dissimilar, and therefore not 'complementary', assert heterosexual identity and desire. In sex reassignment surgery law finds, at least some, assurance that marriage, the institution of heterosexuality, will be insulated from the spectre of the homosexual body. In this sense law produces heterosexuality not only as identity or sexual practice, but as an effect of the present, and of course 'oppositional', anatomical form of the parties to desire.

22. The concern over proximity of the homosexual body to marriage finds expression in other portions of Ellis' judgment. Thus in a passage that evinces a concern that law should not hinder the heterosexualisation of transgender bodies effected by sex reassignment surgery, Ellis J. expressed the view:

    If the law insists that genetic sex is the pre-determinant for entry into a valid marriage, then a male to female transsexual can contract a valid marriage with a woman. To all outward appearances, such "marriages" would be homosexual marriages. The marriage could not be consummated.[64]

    Anxiety over the prospect of "homosexual marriages" is evident in the fact that Ellis J. problematises the word "marriages" even though such marriages are quite clearly lawful. Moreover, the homophobia of the judgment is further evidenced by Ellis' assertion that such a marriage "could not be consummated". It is curious why reference to consummation should be made given its obvious irrelevance to the law of marriage in New Zealand, a point rendered abundantly clear by Ellis J. in other portions of the judgment.[65] Rather, it would seem that the idea of consummation is deployed against what Ellis J. sees as the transgender homosexual body in order to 'denaturalise' that body and its desires. This concern over the proximity of the homosexual body to marriage manifests itself in yet another regard:

    From a practical point of view, sex change procedures are unlikely to be undertaken by legitimate medical personnel in New Zealand without the individual having first obtained a dissolution of his or her marriage in the original sex. There is always the possibility that a person could undergo such procedures with less ethical professionals.[66]

    This passage of the judgment is revealing. While it is true that psychiatrists are reluctant to refer married persons for sex reassignment procedures and surgeons reluctant to perform those procedures on married persons,[67] that attitude is premised on a view of homosexual desire, a desire which medicine, not unproblematically, inscribes onto married bodies, as inconsistent with transgender. It is significant that Ellis J. finds it necessary to delegitimise and to characterise as unethical medical practitioners who might be capable of imagining non-heterosexual transgender identities and desires.

    Conclusion

23. 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 have 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 New Zealand decision of Attorney-General v Otahuhu Family Court proves significant. The importance of the case lies in its deemphasis of sexual function in determinations of transgender sex claims.

24. While Attorney-General v Otahuhu Family Court might be viewed as a 'progressive' decision removing a further obstacle to legal recognition it also serves to foreground the bodily aesthetics of law that prior transgender jurisprudence has partially masked through a preoccupation with (hetero)sexual capacity. In other words, the decision highlights how transgender jurisprudence is underscored by a concern with the 'monstrosity' of pre-operative bodies especially in the marriage context. Importantly, this view of the pre-operative body as 'monstrous' is explicable in terms of judicial anxiety over proximity to the homosexual body. In the final analysis functionality and aesthetics, as means through which to resolve the question of legal sex, find their unity in keeping the homosexual body at bay.

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Notes

[1] [1995] 1 NZLR 603.

[2] [1970] 2 All ER 33.

[3] Ibid at 48.

[4] For previous discussion and criticism of the Corbett decision see, for example, D. Green (1970) 'Transsexualism and Marriage' New Law Journal 120:210; E.S. David (1975) 'The Law and Transsexualism: A Faltering Response to a Conceptual Dilemma' Connecticut Law Review 7:288; A. Samuels (1984) 'Once a Man, Always a Man; Once a Woman, Always a Woman - Sex Change and the Law' Medicine and Science Law, 163; J. Dewar (1985) 'Transsexualism and Marriage' Kingston Law Review 15:58; and J. Taitz (1986) 'The Law Relating to the Consummation of Marriage where one of the Spouses is a Post-Operative Transsexual' Anglo-American Law Review 15:141.

[5] 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.

[6] 355 A 2d 204 [1976] 206.

[7] See A Sharpe (1997) 'Anglo-Australian Judicial Approaches to Transsexuality: Discontinuities, Continuities and Wider Issues at Stake' Social and Legal Studies 6(1):23-50.

[8] 293 NYS 2d 834 [1968].

[9] 355 A 2d 204 [1976] 206.

[10] 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).

[11] MT v JT 355 A 2d 204 [1976] at 206.

[12] Ibid at 209.

[13] Ibid at 206.

[14] 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 H. Benjamin (1966) The Transsexual Phemomenon, NY: The Julian Press, Inc at 13-14, 54; J. Money and C. Primrose, 'Sexual Dimorphism and Dissociation in the Psychology of Male Transsexuals', in Green and Money (eds) Transsexualism and Sex Reassignment, Baltimore: The Johns Hopkins Press (1969) p121-122; R.J Stoller (1973) 'Male Transsexualism: Uneasiness' American Journal of Psychiatry 130:536-9.

[15] 355 A 2d 204 [1976] at 206.

[16] [1977] 400 NYS 2d 267.

[17] Ibid. 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"(at 272).

[18] Ibid at 271.

[19] Ibid per Dr Money.

[20] [1989] 17 NSWLR 158.

[21] Section 81A NSW Crimes Act 1900 (now repealed).

[22] R v Harris and McGuiness [1989] 17 NSWLR 158 at 193.

[23] Ibid at 194.

[24] Lee Harris and Phillis McGuiness had been approached by a vice squad officer who had requested oral sex.

[25] [1991] AATA 94; 13 AAR 314.

[26] Ibid at 320.

[27] Ibid.

[28] Ibid at 317.

[29] [1993] FCA 573; [1993] 118 ALR 467.

[30] [1992] 28 ALD 361.

[31] Secretary, Department of Social Security v SRA [1993] FCA 573; [1993] 118 ALR 467 at 493.

[32] [1991] NZFLR 337.

[33] [1976] 2 SALR 308.

[34] [1991] NZFLR 337 at 344.

[35] Ibid.

[36] Ibid.

[37] R v Harris and McGuiness [1988] 35 A Crim R 146.

[38] [1991] NZFLR 337 at 348.

[39] Ibid. Interestingly, uncertainty as to whether the determination of sex involves a question of law or fact is apparent in Aubin J's judgment. This is particularly evident in references to the Australian case of R v Cogley [1989] VicRp 70; [1989] VR 799. In R v Cogley the Victorian Court of Criminal Appeal unanimously held that the determination of sex was "a question of fact to be determined by the jury". For a discussion of this case and the law/fact distinction in the context of transgender sex claims see A. Sharpe (1994) 'The Precarious Position of the Transsexual Rape Victim' Current Issues in Criminal Justice 6(2):303-7.

[40] Ibid at 339.

[41] Ibid at 340.

[42] Ibid.

[43] Ibid.

[44] Ibid at 339.

[45] Attorney General v Otahuhu Family Court [1995] 1 NZLR 603 at 612.

[46] Ibid.

[47] M v M [1991] NZFLR 337 at 347.

[48] See J. Epstein, (1995) Altered Conditions: Disease, Medicine and Storytelling. Routledge. P91.

[49] [1995] 1 NZLR 603.

[50] [1993] FCA 573; [1993] 118 ALR 467.

[51] Ibid at 493.

[52] This view of the female body is traceable to a body of liberal theory and perhaps most notably to the writings of Immanuel Kant (The Metaphysics of Morals). See Ngaire Naffine (1997) 'The Body Bag' in N. Naffine and R. Owens (eds) Sexing the Subject of Law. Sweet and Maxwell. p79-93.

[53] Ibid.

[54] Attorney-General v Otahuhu Family Court [1995] 1 NZLR 603 at 604.

[55] Ibid at 614-615.

[56] Ibid at 612.

[57] Ibid.

[58] Ibid at 615.

[59] Ibid at 607.

[60] Ibid at 615.

[61] Ibid at 614.

[62] Ibid at 607.

[63] Ibid at 615. While such a view was articulated by the Social Security and Administrative Appeals tribunals in the Australian decision of Secretary, Department of Social Security v SRA (above note 30) the judgment of Ellis J represents its first airing by a superior court within a common law jurisdiction.

[64] Ibid at 629.

[65] Ibid at 612. Of course, the shift from sexual function to bodily aesthetics evident in Attorney-General v Otahuhu Family Court is perhaps unlikely to be followed in common law jurisdictions where consummation continues to play an important role in determining marriage questions.

[66] Ibid at 619.

[67] See D. King (1993) above note 21. Indeed, the famous transsexual Jan Morris went to Casablanca for her surgery in 1972 after she was told she must divorce her wife in order to receive surgery in the UK (Jan Morris (1986) Conundrum: An Extraordinary Narrative of Transsexualism. NY: Holt).