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Making sex: law's narratives of sex, gender and identity

Published online by Cambridge University Press:  02 January 2018

Laura Grenfell
Laura Grenfell*
Affiliation:
University of Adelaide Law School, Australia
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Abstract

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From the 1970 decision of Corbett onwards, legal narratives established two modes of categorising complex social identity in relation to sex and gender. These narratives responded to complex identity questions by attempting to simplify identity by limiting it to biological factors or anatomical and psychological factors.

I demonstrate that the law's struggle to ‘make’ sex is reflected to a certain extent by feminism's trajectory, in that feminisms have also attempted to grapple with these complex questions, and often opted for the same simple solutions to the problem of understanding gender, sex and identity. The aim of this paper is to show that some strands of feminist theory, specifically post-structuralist feminist theory, can produce a more progressive and constructive approach to determining sex in their ability to illuminate the complexities of identity. In particular, my aim is to urge those courts that ‘make’ sex to consider these complexities and the implications that flow from placing transgender people into rigid and narrow categories.

Type
Research Article
Information
Legal Studies , Volume 23 , Issue 1 , March 2003 , pp. 66 - 102
Copyright
Copyright © Society of Legal Scholars 2003

References

1. Corbett v Corbett [1971] P 83.

2. Corbett v Corbett [1971] P 83.

3. By the term ‘transgendered people’ I mean all those persons whose gender identity does not conform to the rigid gender binary of male/female. It includes those who cross-dress, those who perform in drag, those whose gender presentation is ambiguous, those who live and identify as a sex that differs from the sex they were assigned at birth, those who do not identify as any sex and those who undergo surgery in order to have their anatomy match their self-identified sex. Those in this very last identification are often referred to as ‘transsexual’, a term which can be used at times interchangeably with the term ‘transgender’.

4. See, for a contemporary example, the discourses of the gene. According to D Nelkin and M Lindee, these discourses ‘conform to and complement existing beliefs about identity, family, gender and race’: The DNA Mystique: The Gene as Cultural Icon (New York: Freeman, 1995) p 197.

5. Weedon, C Feminist Practice and Poststructuralist Theory (London: Blackwell, 2nd edn, 1996) p 128.Google Scholar

6. EEOC v Sears, Roebuck and Co 628 F Supp 1264 (ND III, 1986).

7. Laqueur, T Making Sex: Body and Gender from the Greeks to Freud (Cambridge, Mass: Harvard University Press, 1990)Google Scholar; Gallagher, C and Lacqueur, T (eds) The Making of the Modern Body: Sexuality and Society in the Nineteenth Century (Berkeley: University of California Press, 1987)Google Scholar.

8. Rousseau, J J Emile (London: Dent & Sons, 1972) p 324.Google Scholar

9. Eg Aristotle asserted that ‘as between male and female, the former is by nature superior and ruler, the latter is inferior and subject’: Aristotle Politics T Sinclair (trans) (Harmondsworth: Penguin, 1962) p 33.

10. [1971] P 83.

11. [1971] P 83 at 107.

12. [1971] P 83 at 107.

13. [1971] P 83 at 104.

14. [1971] P 83 at 104.

15. [1971] P 83 at 105–106

16. [1971] P 83 at 96.

17. After Corbert , the common law rule that a marriage could be declared voidable on the grounds of non-consummation owing to the incapacity of one party was given statutory effect in s 12(a) of the Matrimonial Causes Act 1973.

18. [1971] P 83 at 107.

19. See A Sharpe ‘Transgender Jurisprudence and the Spectre of Homosexuality’ (2000) 14 Australian Feminist LJ 23. Sharpe points out that it is more likely that Ormrod J would describe the relationship as a same-sex relationship. In interpreting the words ‘natural heterosexual intercourse’, he draws attention to the following words of Ormrod J: ‘The mischief is that by over-refining and over-defining the limits of “normal” one may, in the end, produce a situation in which consummation may come to mean something altogether different from normal sexual intercourse’: at 108. In my view, this interpretation is persuasive but fails to explain Ormrod J's statement regarding the ‘essential role of a woman in marriage’. See below.

20. [1971] P 83 at 106.

21. [1983] QB 1053. Here the court decided to extend Corbett 's application because ‘common sense and the desirability of certainty and consistency demand’ it so: at 1064. In this case, Gloria Greaves, a post-operative MTF transsexual, appealed her conviction of living on the earnings of prostitution and her husband's conviction of living on the earnings of the prostitution of another man, on the ground that she was a woman. Although Greaves had been living as a woman for 18 years and had undergone a sex change operation, the court deemed her to be a man for the purposes of the Sexual Offences Act 1967. The court applied the Corbett test ‘without hesitation’: at 1064. In it's view, consistency is desirable. Ironically, this need for consistency was not considered to be desirable by Ormrod J in the case of Corbett. Critically, the court in Tan made no attempt to demonstrate any similarities between family law and criminal law, or to show that sex was an ‘essential determinant’ of the relevant crime or of criminal law in general. Furthermore, it did not consider the inconsistency between Greaves' National Insurance identity and her identity for the purposes of the criminal law to be a problem. It appears that no argument was submitted as to an alternative definition of sex and that the submissions were limited to whether the Corbett test should apply in criminal law.

22. See the decision of the Employment Appeal Tribunal in Chief Constable of West Yorkshire Police v A and Secretary of State for Education und Employment (2002) IRLR 103.

23. [1998] Fam 103. In this case a pre-operative FTM transsexual defendant sought ancillary relief after his marriage with the plaintiff was declared void by reason that the defendant was not male at the time of the ceremony. The plaintiff challenged the defendant's claim for relief on the ground that it was against public policy as the defendant had committed perjury at the marriage ceremony by declaring he was a bachelor. The defendant failed to inform the plaintiff of his birth sex before or during their 18-year marriage. Judging the defendant's claim for ancillary relief on its merits, the court held the defendant's claim unsuccessful.

24. (2002) 2 WLR 411.

25. The majority held that the Corbett test was the only basis upon which to decide upon the sex of a child at birth. They were more equivocal as to whether the assignment made at birth is immutable given the medical evidence of the possibility that transsexualism is a medical condition with a biological basis by reason of sexual differentiation of the brain after birth. However, the majority decided that such findings were ‘at such an early state that… a court could not accept them as clear indications’: (2002) 2 WLR 411 at para 55. Thorpe LJ dissented, finding that the evidence was sufficient for the Corbett approach to be rejected.

26. (2002) 2 WLR 411 at para 98.

27. (2002) 2 WLR 411 at para 99.

28. (2002) 2 WLR 411 at para 104. The court held that if the post-operative gender of transsexuals were recognised, then the preconditions of recognition would be questions of public policy that a court could not decide. This contrasts with the MT v JT 335 A 2d 204 (1976) approach: see section 3a. below. The court decided to leave these matters to Parliament, despite the government's failure to act on the Report of the Inter-Departmental Working Group on Transsexual People and its ‘failure to recognise the increasing concerns and changing attitudes across Western Europe’: at para 96.

29. This case has since been appealed to the House of Lords, whose judgment is presently pending. The matter was heard on 13 March 2002. In my view, the House of Lords is likely to take a bolder approach than that of the Court of Appeal and find that, in the face of legislative inaction, the common law should be changed to reflect current social and medical views of transsexuality which were not extant at the time of Corbett over 30 years ago.

Note that the extension of the Corbett test to intersex persons was recently rejected in W v W [2001] Fam III. Here, the Family Division Court was asked to determine whether an intersex respondent was male or female at the date of marriage on a petition for nullity by the petitioner. Charles J held that the case did not concern a transsexual and therefore the Corbett test was not appropriate, thus distinguishing ‘inter-sex’ persons from transsexuals. He described the former as suffering partial androgen sensitivity which is caused by mutations of the androgen receptors so that the male body is unable to ‘see’ testosterone. In this case, the respondent had male chromosomes, ambiguous gonadal sex, ambiguous external genital appearance, no female internal sex organs, female body habitus (eg little body hair) and female gender identity.

30. Corbett v Corbett [1971] P 83.

31. (1986) 8 EHRR 56, Series A No 106. See also Van Oosterwijck v Belgium (1980) Series A No 4, which is the earliest case before the European Commission of Human Rights. Here a post-operative FTM transsexual brought a case against the government of Belgium for its refusal to alter her birth certificate to reflect her altered sex. The matter was not heard by the European Court of Human Rights due to the claimant's failure to exhaust local remedies.

32. (1990) 3 EHHR 622, Series A No 184. This case was chronologically followed by B v France [1992] 2 FLR 249, Series A No 232. where a post-surgical MTF transsexual successfully complained under Art 8 of the Convention that the French court's refusal to order the rectification of her birth certificate or to allow her to have a female forename violated her right to respect for privacy. The decision appears to have turned on particularities of the French civil registration system.

33. (1998) 27 EHRR 163.

34. 22 April 1997, Reports of Judgments and Decisions 1997-II. Here, the applicant was appealing the extension of the Corbett approach into the realm of paternity law. X, an FTM transsexual, claimed paternity, under the Human Fertilisation and Embryology Act 1990, of his partner's child, which had been conceived by means of artificial insemination donor. X unsuccessfully argued that the UK's refusal to give him the same recognition as is given to biological men under the Act violated his right to respect for family life under Art 8.

35. Rees v United Kingdom (1986) 8 EHRR 56 at para 49; Cossey v United Kingdom (1990) 3 EHHR 622 at paras 45–46.

36. Cossey v United Kingdom (1990) 3 EHHR 622 at paras 45–46.

37. Cossey v United Kingdom (1990) 3 EHHR 627 at paras 45–46.

38. Rees v United Kingdom (1986) 8 EHRR 56 at para 28. Of course, if in fact the right to marry in Art 12 is intended to be about procreation (which is spurious in my view), then this explains the significance of a biological interpretation of sex. But such an assumption is never explicitly stated in Corbett.

39. The Marriage of C & D (1979) 35 FLR 340. This point is contestable as, in a strict sense, this case did not concern transsexualism. The respondent husband was a hermaphrodite/intersex who had been born with the sexual organs of both sexes, had female hormones and had undergone operations to alter his external sex organs to become a male. In her application for a declaration of nullity, the wife asserted that the husband was unable to consummate the marriage. Ostensibly applying Corbett , the court declared that as the husband was ‘neither man nor woman but a combination of both’ he was incapable of entering a valid marriage with either sex: at 345. For commentary, see R Bailley-Harris ‘Family Law - Decree of Nullity of Marriage of True hermaphrodite Who Has Undergone Sex-Change Surgery’ (1979) 53 Australian LJ 659.

40. In Re T (1975) 2 NZLR 449, the court refused the application of an MTF transsexual applicant for an order to change the registration of her birth details. Although this was not a family law case, the Supreme Court here examined the applicant's breasts and vagina and the fact that she was ‘capable of playing the part of a female in sexual intercourse’: at 450. The court concluded by saying that the question was for the legislature to decide. In other words, the court viewed the biological approach to sex as the natural and uncontentious approach that could only be changed by parliament. The court offered no justification or authority for the decision except for Corbett.

41. InW v W [1976] 2 SALR 308, the MTF transsexual plaintiff filed for divorce on the grounds of adultery, causing the validity of her marriage to the defendant to come under question. Unlike Corbett , it was an uncontested fact that the marriage had been successfully consummated. In this case, the court applied the same biological criteria as in Corbett , but without any direct medical evidence and with minimal examination of the issues. The court acknowledged that the wife had breasts and a ‘vagina-like cavity’, she looked like a woman, was accepted in society as a woman and was capable of having sex with a male ‘(… despite her inability to procreate)’: at 313. It recognised that psychologically the plaintiff regarded herself as a woman, and yet it concluded that there was ‘no evidence (nor, one imagines, could there be) to justify a finding that merely on this basis the plaintiff was a woman’: at 312. Thus the court held that the plaintiff was a man and the marriage was void. In its reasons, the court never explicitly stated that the Corbett biological criteria were necessary for the purposes of procreation, nor that procreation was an essential part of marriage. But it is, arguably, the only explanation for the court's use of such limited criteria in circumstances where consummation and ‘normal sexual relations’ took place.

42. 325 NYS 2d 499 (1971).

43. Corbett Y Corbett [1971] P 83.

44. 325 NYS 2d 499 at 500 (1971). Quoting from Mirizio v Mirizio 242 NY 74 at 81 (1928).

45. 355 NYS2d 712 (1974).

46. 355 NYS2d 712 at 717 (1974).

47. 9 SW 3d 223 (Tex App, 1999).

48. Note that this amendment was made when litigation was proceeding. In the view of Katrina Rose, the timing of this amendment means that Littleton's marriage was legally a same-sex marriage and Littleton therefore ‘deserved to lose’ her action: ‘The Transsexual and the Damage Done: The Fourth Court of Appeals Opens Pandora's Box by Closing the Door on Transsexuals' Right to Marry’ (2000) 9 Law and Sexuality 41 at 74.

49. Justice Karen Angelini wrote a concurring opinion. See the dissent of Justice Alam Lopez. In her view, a transsexual's self-identify can be a criteria in the determination of sex. She held that a fact-finder should determine whether a transsexual's sex is reflected by their original or amended birth certificate.

50. 9 SW 3d 223 at 224 (Tex App, 1999).

51. 9 SW 3d 223 at 230 (Tex App, 1999).

52. Corbett v Corbett [1971] P 83.

53. 9 SW 3d 223 at 227 (Tex App, 1999).

54. Part of the question was whether there were any guidelines which would enable a jury, as a fact-finder, to determine the legality of a marriage such as that of Christie. It held that a jury could not make such a determination in the absence of legislative guidelines.

55. 9 SW 3d 223 at 230 (Tex App, 1999).

56. 9 SW 3d 223 at 231 (Tex App, 1999).

57. 9 SW 3d 223 at 231 (Tex App, 1999).

58. This ruling effectively means that gay and lesbian transsexuals can marry their partners. There are reports that such couples have already married in a number of states: see T Flynn ‘Transforming the Debate: Why We Need to Include Transgender Rights in the Struggles for Sex and Sexual Orientation Equality’ (2001) 101 Col LR 392 at 418. Ironically, the prevention of same-sex marriages was the main policy issue that motivated Hardberger J in following a biological approach.

59. 42 P 3d 120 (Kan, 2002).

60. In this case, evidence was presented that the deceased knew of the appellant's transsexual nature and that they had enjoyed a ‘consummated marriage relationship’.

61. Such an approach was used by the English Industrial Tribunal in the first English case dealing with a transsexual discrimination claim made under the UK's Sex Discrimination Act 1975: White v British Sugar Corpn [1977] IRLR 121. In this case. the complainant was a non-operative FTM transsexual whose employment as an electrician's mate was terminated when her biological sex became known. The court stated: ‘[the Oxford English Dictionary] defines male as of or belonging to the sex which begets offspring or performs the fecundating function. The same dictionary defines female as belonging to the sex which bears offspring.’ The court thus used these simplistic definitions to determine that the complainant was a woman (at para 7) and held that she had not been discriminated against on the basis of her hex.

62. White v British Sugar Corpn [1977] IRLR 121 at para 9.

63. 335 A 2d 204 (1976).

64. Corbett v Corbett [1971] P 83.

65. 335 A 2d 204 at 209 (1976).

66. 335 A 2d 204 at 209 (1976).

67. 335 A 2d 204 at 209 (1976).

68. 335 A 2d 204 at 209 (1976).

69. 335 A 2d 204 at 209 (1976).

70. 335 A 2d 204 at 209 (1976).

71. 335 A 2d 204 at 207 (1976).

72. 335 A 2d 204 at 209 (1976).

73. 335 A 2d 204 at 210 (1976).

74. 335 A 2d 204 at 211 (1976).

75. 57 Misc 2d 813 (1968).

76. 57 Misc 2d 813 at 837 (1968).

77. 57 Misc 2d 813 at 836–838 (1968).

78. 57 Misc 2d 813 at 836 (1968).

79. 22 P 3d 1086 (Kan App. 2001). See above for discussion of the decision of the Kansas Supreme Court.

80. 22 P 3d 1086 at 1110 (Kan App, 2001).

81. Note that this was the criteria suggested by J Greenberg ‘Defining Male and Female: Intersexuality and the Collision between Law and Biology’ (1999)41 ArizLR 265.

82. 22 P 3d 1086 at 1090 (Kan App, 2001).

83. (1990)3 EHHR 622.

84. Corbett v Corbett [1971] P 83.

85. Martens J was specifically referring to the example of Mark Rees who was the applicant in the decision preceding Cossey Rees v United Kingdom (1986) 8 EHRR 56. Series A No 106. In Martens J's view, this case was wrongly decided in regards to Rees' claim under Art 8.

86. (1990) 3 EHHR 622 at para 33.

87. (1990) 3 EHHR 622 at para 33.

88. Bellinger v Bellinger (2002) 2 WLR 411.

89. He held that the Corbett test was ‘wrong’ in light of subsequent medical findings in the past thirty years which evidence that there are postnatal developments that affect one's sex: (2002) 2 WLR 411 at para 155. These developments, which relate to brain sexual differentiation, demonstrate the significance of psychological factors in the determination of one's sex for the purpose of marriage.

90. (2002) 2 WLR 411 at para 132.

91. (2002) 2 WLR 411 at para 132. Thorpe LJ also questioned that validity of Ormrod J's proposition that ‘Marriage is a relationship which depends on sex not gender’. He stated: ‘The proposition seems to me to be now of very doubtful validity. The scientific changes to which I have referred have diminished the once cardinal role of procreative sex’: para 130.

92. 11 July 2002, unreported, Application No 25680/94.

93. 11 July 2002. unreported, Application No 28597/95.

94. [2001] Fam CA 1074 (12 0ctober 2001).

95. 11 July 2002: paras 62 and 82 respectively. The applicants complained, in particular, about their treatment in relation to employment, social security and pensions, and their inability to marry either as a man or a woman. Note that while these decisions do not override UK law, they must be taken into account by future courts. The Lord Chancellor has reportedly reconvened the Interdepartmental Working Group on Transsexual People in order to consider the implications of the decisions.

96. (1988) 35 A Crim R 146. Note that this case was followed by R v Cogley [1989] VR 799, where the Full Court of the Supreme Court of Victoria decided that the question of a victim's sex (eg in a case of attempted rape of a post-operative transsexual such as this) is a question of fact and should be decided by a jury rather than a trial judge. The court distinguished Harris on the ground that it did not involve a jury trial. In my view, leaving the question of a victim's sex/gender provides a transsexual with too much legal uncertainty.

97. Corbett v Corbett [1971] P 83.

98. (1988) 35 A Crim R 146 at 161.

99. (1988) 35 A Crim R 146 at 180.

100. (1988) 35 A Crim R 146 at 180.

101. (1988) 35 A Crim R 146 at 181.

102. (1988) 35 A Crim R 146 at 158.

103. (1988) 35 A Crim R 146 at 158.

104. (1988) 35 A Crim R 146 at 159.

105. [2001] Fam CA 1074 (12 October 2001). This decision is currently on appeal to the Full Court of the Family Court of Australia. It was heard in February 2002.

106. [2001] Fam CA 1074 at paras 107–109.

107. [2001] Fam CA 1074 at paras 329–330.

108. Compare the result of Chisholm J's exercise of statutory interpretation to that in In the Matter of the Estate of Gardiner 42 P 3d 120 (Kan, 2002) above. Note also that, with minimal discussion of the issue, Chisholm J purported to draw a ‘convenient and workable he’ between pre-operative and post-operative transsexuals: [2001] Fam CA 1074 at para 332.

109. [1995] 1 NZLR 603. This was perhaps prompted by the vague and indeterminate decision given on this issue by Aubin J in M v M NZFLR LEXIS 133 1991. Here, a post operative MTF transsexual applicant sought a declaration that her marriage was invalid on the ground that she was a biological male at the time of the ceremony. Aubin J of the Family Court of Otahuhu examined whether, for the purposes of family law, other factors can override the chromosomal test in the case of a post-operative transsexual. In his view, the effect of the Corbett approach was to produce ‘a kind of hermaphroditic mutant’, ‘a sexual twilight zone’. Aubin J gave no clear test for sex, and his finding. in regard to the post operative MTF transsexual applicant, was that, ‘however elusive the definition of “woman” may be, the applicant came within it for the purposes of and at the time of the ceremony of marriage’: pp 12,11. Aubin J commented that Ormrod J's conclusion in Corbett ‘seems to flow not so much from the medical evidence which was given in the case as from His Lordship's own finding that certain biological features should be determinative of a person's sex’: p 10. Thus he declared the marriage in issue to be valid and held that the applicant wife was a woman at the time of the ceremony.

110. [1995] 1 NZLR 603 at 606.

111. [1995] I NZLR 603 at 606. In contrast to the UK (see n 17 above), under the New Zealand Family Proceedings Act 1980, a marriage cannot be declared voidable on the grounds of non-consummation.

112. [1995] 1 NZLR 603 at 606.

113. [1995] 1 NZLR 603 at 607.

114. Ellis J examined the implications of the Corbett approach in regards to the question of same-sex marriages. He stated ‘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 and a female to male transsexual can contract a valid marriage with a man. To all outward appearances, such would be same sex marriages’: [1995] 1 NZLR 603 at 607.

115. Corbett v Corbett [1971] P 83.

116. Lockhart J in Secretary, Department of Social Security v SRA (1993) 118 ALR 467 at 493.

117. See eg Martens J in Cossey v United Kingdom (1990) 3 EHHR 622, Series A No 184 at para 2.7.

118. See Secretary, Department of Social Security v SRA (1993) 118 ALR 467.

119. See Horrtin v Director of the Bureau of Records 347 NYS 2d 515 at 518, where the court describes sex reassignment surgery as ‘an experimental form of psychotherapy …mutilating surgery’.

120. R v Harris and McGuiness (1988) 35 A Crim R 146.

121. 335 A 2d 204 (1976).

122. 57 Misc 2d 813 (1968).

123. (1993) 118 ALR 467.

124. (1993) 118 ALR 467 at 468.

125. (1993) 118 ALR 467 at 469.

126. (1993) 118 ALR 467 at 495.

127. (1993) 118 ALR 467 at 495.

128. There is a certain irony in the fact that these ‘dangers’ regarding pre-operative transsexuals' procreativity were used by the court to deny them legal recognition for the purposes of administrative law when, at the same time, the inability to procreate is used in the Corbett approach to deny post-operative transsexuals legal recognition for the purposes of marriage. The use by the anatomical approach of biological factors such as procreativity (to justify its refusal to give legal recognition to pre-operative transsexuals) is perplexing. It appears that, to a certain extent, courts using both approaches employ, at times, the ability to procreate as a tool to categorise a person's sex for various purposes of the law.

129. [1999] AATA 626.

130. This involves removal of the testicles which triggers the development of female muscle/fat ratio and the development of breasts.

131. [1999] AATA 626 at para 20.

132. [1999] AATA 626 at para 27.

133. [1999] AATA 626 at paras 30, 32.

134. [1999] AATA 626 at para 33.

135. Arguably, there should be a different test for what constitutes ‘irreversible’ surgery for FTM transsexuals, given the wide recognition of the acute difficulty and cost of male genital reconstruction.

136. Littleton v Prange 9 SW 3d 223 (Tex App, 1999).

137. In the Matter of the Estate of Gardiner 42 P 3d 120 (Kan, 2002).

138. [1998] Fam 103.

139. (2002) 2 WLR 411. See, in particular, the dissent of Thorpe LJ at para 110ff.

140. [1998] Fam 103 at 142.

141. [1998] Fam 103 at 120. The European Court of Human Rights also urged the United Kingdom to keep this area under ‘review’ in Sheffield and Horsham (1998) 27 EHRR 163 at para 60. Note that Ward LJ pointed out in ST v J that the New Zealand authorities were of no assistance to the transsexual defendant because his anatomy was not in ‘conformation’ with his psychology as he had not undergone a penis construction.

142. [1998] Fam 103.

143. [1998] Fam 103 at 122, 153. This argument was accepted by Charles J in W v W [2001] 2 WLR 674 at 708, where he stated that ‘on the true construction of the [Act] greater emphasis can be place on gender rather than sex’. The argument was rejected by the majority and Thorpe LJ in dissent in Bellinger v Bellinger (2002) 2 WLR 411 at paras 18–23, 148. The majority distinguished Charles J's judgment as dealing specifically with a different disorder within gender dysphoria and not with transsexuality: para 64.

144. S Poulter ‘The Definition of Marriage in English Law’ (1979) 42 MLR 409 at 424.

145. Corbett v Corbett [1971] P 83.

146. A Bradney ‘Transsexuals and the Law’ (1987) 17 Fam Law 350 at 353.

147. 335 A 2d 24 (1976).

148. 355 A 2d 204 (1976) at 209.

149. (1988) 35 A Crim R 146 at 161. Thus pre-operative and no-operative transsexuals embody the disharmony of sex and gender.

150. See eg the work of Dr J Money and Drs J and J Hampson in the 1950s at the John Hopkins University: ‘Hermaphroditism: Recommendations concerning assignment of sex, change of sex and psychologic management’ (1955) 97 Bulletin of John Hopkins Hospital 284. According to the Oxford English Dicrionary , the first usage of ‘gender’ in this sense is recorded in 1963.

151. See below for discussion.

152. It is apparent that the sex/gender distinction debate may be limited to English-speaking feminisms, as the word ‘gender’ does not figure in the same way in the Romance languages, for example. It appears that non-English, Western European feminisms are more likely to debate the notion of sexual difference: see Butler, J ‘Feminism by Any Other Name - Interview with Rosi Braidotti’ in Weed, E and Schor, N (eds) Feminism Meets Queer Theory (Bloomington: Indiana University Press, 1997) pp 41–42.Google Scholar

153. See eg Firestone, S The Dialectic of Sex (London: The Women's Press, 1979)Google Scholar. Firestone argued that reproductive technologies could assist women in their claim for equality in that it could free them from the oppressive conditions of procreation, a difference which blocks women's access to equality. Thus she asserted a disembodied view of women's capacity for equality. At the same time, she can be construed as positing a biological determinist view in that she characterises biology as providing a natural block to women's equality.

154. Or more radical, as that proposed by Firestone: bee n 153 above.

155. Radical and Cultural feminists were united in their rejection of liberal feminism's model of equality which, in their view, failed to address or recognise women's embodied differences.

156. Robin West's ‘Jurisprudence and Gender’ (1988) 55 U Chi LR 1 is commonly cited as the most controversial legal example of Cultural feminism. She argued that modem legal theory did not reflect women's critical experiences of pregnancy, heterosexual intercourse, breast feeding and menstruation, and the intimacy involved in these experiences. Thus West drew sexual difference as rooted in biology, rather than in social constructions of biology.

157. See below for a discussion of how MacKinnon's approach differs from other social constructionist approaches. However, MacKinnon's theory is similar to that of other ‘second wave’ feminists in that it divides human beings into two internally homogenous and rigid categories, men and women.

158. MacKinnon, C Toward a Feminist Theory of the State (Cambridge, Mass: Harvard University Press, 1989) pp 110–11Google Scholar.

159. Butler, J Gender Trouble: Feminism and the Subversion of Identity (New York: Routledge, 1990) p 6.Google Scholar

160. 335 A 2d 204 (1976).

161. R v Harris and McGuiness (1988) 35 A Crim R 146.

162. Such a reading can be made of M Daly Gyn/Ecology: The MetaEthics of Radical Feminism (Boston: Beacon Press 1978).

163. Daly, n 162 above, p 36.

164. Daly, n 162 above, p 36.

165. See eg Butler and Scott, discussed below.

166. Scott, J ‘Some Reflections on Gender and Politics’ in Ferrec, M M, Lorber, J and Hess, B B (eds) Revisioning Grizder (London: Sage Publications. 1999) p 73.Google Scholar

167. Scott, n 166 above, p 73.

168. Butler, n 159 above, p 38.

169. Butler, n 159 above, p 36.

170. Butler, n 159 above, p 7.

171. Butler, n 159 above, p 37.

172. Butler, n 159 above, p 7.

173. Butler, n 159 above, p 7.

174. Moi, T What is a Woman? And Other Essays (Oxford: Oxford University Press. 2000) pp 30–31.Google Scholar

175. Moi, n 174 above, p 31.

176. Moi, n 174 above, p 46.

177. Moi, n 174 above, pp 9–10.

178. Moi, n 174 above, p 48.

179. Moi, n 174 above, p 58.

180. Moi, n 174 above, p 51.

181. Moi, n 174 above, p 53.

182. Moi, n 174 above, p 58.

183. Moi, n 174 above, p 95.

184. K Franke ‘The Central Mistake of Sex Discrimination Law: The Disagreggation of Sex from Gender’ (1995) 144 U Penn LR 1 at 3.

185. Franke, n 184 above, at 99.

186. Franke, n 184 above, at 3.

187. M A Case ‘Disaggregating Gender from Sex and Sexual Orientation: The Effeminate Man in the Law and Feminist Jurisprudence’ (1995) 105 Yale LJ 1 at 3.

188. Case, n 187 above, at 11.

189. Case, n 187 above, at 11, quoting J E B v Alabama, ex rel TB 114 S Ct 1419 at 1436 n 1 (1994).

190. Case, n 187 above, at 11.

191. Case, n 187 above, at 105.

192. Moi, n 174 above, p 111.

193. This is clearly contentious. Moi believes that she is avoiding the sex/gender distinction. In my view, she advocates the use of this distinction. Moi's strategy is based on the work of Beauvoir. She claims that Beauvoir's account of woman as ‘an open-ended becoming’‘rejects both biological determinism and the limiting distinction between sex and gender’: p 83. This claim that Beauvoir successfully avoids the sex/gender distinction is contested by Butler, n 159 above, pp 111–12.

194. Corbett v Corbett [1971] P 83.

195. Moi, n 174 above, p 93.

196. Moi, n 174 above, p 94.

197. Moi, n 174 above, p 97.

198. Moi, n 174 above, p 98.

199. Moi, n 174 above, p 98.

200. Moi, n 174 above, pp 97–98. But to Ormrod J. marriage is all about sex, as opposed to gender.

201. Moi, n 174 above, p 99. Note that Moi fails to elaborate further on this matter.

202. Moi, n 174 above, p 96.

203. Moi, n 174 above, p 94.

204. Moi, n 174 above, p 97.

205. Moi, n 174 above, p 97.

206. Furthermore, the behavioural approach I suggest in the text below would retain a degree of ambiguity in that it would not demand that masculinity be necessarily related to male subjectivity and femininity be related to female subjectivity.

207. 335 A 2d 204 (1976).

208. (1992) 28 ALD 361. Note also the judgment of (Australian) Administrative Appeals Tribunal member Brennan in Re Secretary, Department of Social Security and HH (1991) 13 AAR 314 at 324, where she said that ‘psychological, social/cultural gender identity are the matters of primary importance’ in the case of a post-operative MTF transsexual applicant for the old-age pension.

209. (1992) 28 ALD 361 at para 25. See also Secretary, Department of Social Security v SRA (1993) 118 ALR 467.

210. It must be noted that the decision was made in the area of social policy and for this reason the Tribunal was able to distinguish it from R v Harris and McGuiness (1988) 35 A Crim R 146 and the area of criminal law.

211. Corbett v Corbett [1971] P 83.

212. Bornstein, K Gender Outlaw: On Men, Women and the Rest of Us (New York: Routledge, 1994)Google Scholar.

213. Note that courts have generally not considered psychology as inhering a sufficient element of stability, despite the current medical evidence that psychology is not mutable. See eg the report of Jaap Doek, ‘Literature and research indicate that the prevailing opinion among professionals working with transsexuals is that a person's gender identity cannot be changed because this identity ha5 been definitively formed during the early years (between 2–4 years of age)’: Transsexualism, Medicine and the Law - Proceedings of the Twenty-Third Colloquy on European Law (The Netherlands: Council of Europe Publishing. 1995) p210.

214. Re SRDD v Department of Family and Community Services [1999] AATA 626.

215. [2001] Fam CA 1074.

216. One commentator, Andrew N Sharpe, argues that this proposed test of psychological, social and cultural harmony is ‘not one premised on transgender autonomy’ in that it ‘transfers control to another locale’. He suggests that we should be cautious of this approach as the psychological component allows continued medical control, while the social and cultural components depend on judicial consideration of community attitudes towards transgender people: Transgender Jurisprudence: Dysphoric Bodies of Law (London: Cavendish Publishing Ltd, 2002) pp 77.78. In my view, it is not realistic to have transgender autonomy as the sole premise of such a test because, as every court has made evident, the test must also take into account the public interest in determining sex status. The proposed test is to be preferred as it clearly provides all transgender people with a greater level of agency than allowed by the two main legal narratives.