Diversity In Sexual Formation and The Tyranny of Difference

Presentation by Rachael Wallbank - Wallbanks Legal website

Acknowledging the inspiration for this title from Geoffrey Blainey's book and the title of the second album by Washington, D.C. rock band Ted Leo and the Pharmacists

Diversity in Sexual Formation

  • Chromosomal Sex
  • Genital Sex (Internal and external genitalia)
  • Neurological sex/'brain sex'
  • Hormonal Sex
  • Genetic Sex (present in plant, animal and human beings)

Male external genitalia as observed at birth

XY (Standard)
XXY (Klinefelter Syndrome) 
XY (Transsexualism)^

Female external genitalia as observed at birth

XX (Standard)
XO (Turner Syndrome) 
XX (Congenital Adrenal Hyperplasia)*^
XY (Complete Androgen Insensitivity Syndrome)^
XY (Partial Androgen Insensitivity Syndrome)*^
XY (5alpha-RD)*^
XY (17beta-HSD)*
XX (Transsexualism)^

*  Gross genital ambiguity may be apparent at birth
^  can be assigned to a legal sex at odds with neurological sex/gender identity due to genital appearance at birth - only observable at puberty or later


An example of human diversity in gender expression in which an individual's cultural expression of their sex is at odds with their assigned sex or which challenges normally  acceptable or expected norms of gender expression and where there is no or little  brain/body sexual disharmony and the individual does not require Sex Affirmation Treatment including Genital Reassignment Surgery - Contentment with genital appearance and function.


An example of human diversity in sexual formation in which an individual experiences a critical discordance between the individual's sexually differentiated body (eg body parts such as genitalia) and sexually differentiated mind ("brain sex") - where the individual requires Sex Affirmation Treatment including Genital Reassignment Surgery as a medical and personal life necessity.

Science + Law = Human Rights

Transsexualism ?

  • Nature/Biological = Natural = legal/human rights to affirmed sexual identity and medical treatment
    A natural variation in human sexual formation - neurological sex/brain at odds with balance of sexually differentiated body parts - a natural and inherent aspect of a person - an example of difference or diversity rather than disorder - an intersexual phenomenon. (Re Kevin)


  • Nurture/Psychological = Disorder = denial of legal/human rights and medical treatment
    DSM IV categorisation - mental disorder/illness referred to as Gender Identity Disorder or Gender Dysphoria ("GID") (Re Alex)

Defining Male and Female (1)

"Recent advances in the field of the genetics of sexual development have shown the extreme complexity of defining males and females from a biological standpoint. There is no one biological parameter that clearly defines sex. The second point is that there are differences between male and female brains very early in development. This suggests that the sexualization of the brain happens very early during embryonic life. The last point is that significant minorities of individuals are left out of simple civil rights because they don't fit established categories of sex." 
 Dr Eric Vilain, paediatrician, Chief of Medical Genetics at the University of California USA. ABC Radio National 'The Health Report' 14.03.2005

^ Back to top

 Defining Male and Female (2)

"And what I began to realise very early on is that in order to discover who or what a child is or for that matter who or what an adult is you have to ask them…I have a six year old, two seven year olds, (and) two eight year olds who spontaneously declare it (a sex different from that assigned based upon genitalia). They say "I'm a boy and I don't know how you could not know that.." and sometimes they'll start just saying "My name is Bob…" 

Dr. William Reiner, child psychiatrist, University of Oklahoma Health Sciences Center ABC Radio National 'The Health Report' 14.03.2005

Defining Male and Female (3)

"Traditionally an individual's primary sex characteristic is the person's gonads. It is now understood that an individual's gonads or other characteristics frequently do not correspond with other features of self and variations are common. And this is the case in conditions of transsexuality and intersex* (and transsexuality can be considered a form of intersexuality)... "

*individuals with apparent admixtures of male and female biological characteristics

Professors M Diamond & H G Beh "Ethics & Gender: The Right to be Wrong" University of Hawaii (publication pending)

Australian Common Law (1) - Re Kevin (2001-2003)

"In my view the expert evidence in this case affirms that brain development is (at least) an important determinant of a person's sense of being a man or a woman. No contrary opinion is expressed. All the experts are very well qualified." (Chisholm J at para 247)

Australian Common Law (2) - Re Kevin

"In my view the evidence demonstrates (at least on the balance of probabilities) that the characteristics of transsexuals are as much "biological" as those of people thought of as inter-sex".
Chisholm J - at paragraph 272 Re Kevin: Validity of Marriage of Transsexual (2001) 28 Fam LR 158; [2001] FamCA 1074

Australian Common Law (3)

Chisholm J - Re Kevin - The Fundamental Task of the Law

"…the fundamental task of the law…, in a legal and social context that divides all human beings into male and female, is to assign individuals to one category or the other, including individuals whose characteristics are not uniformly those of one or other sex." (para 315)

"It is clear from the Australian authorities that post-operative transsexuals will normally be members of their reassigned sex" (para 329) 

Chisholm J - Re Kevin: Validity of Marriage of Transsexual (2001) 28 Fam LR 158; [2001] FamCA 1074

Australian Common Law (4) - as a result of Re Kevin

  1. Transsexualism is a biologically derived intersexual condition and should be treated as such at law
  2. Sex affirmation Treatment (including SRS) is rehabilitative of the condition of transsexualism, and not purely cosmetic or imitative, and is intended the resolve the brain/body gender identity disunity that is transsexualism
  3. After sex affirmation surgery, a person with transsexualism or other intersexual condition is of their affirmed sex under common law and entitled to legally marry in that sex.

^ Back to top

Australian Common Law (5) - Punishing Adolescents

As a result of:

  • In Re A - (1993) 16 FamLR 715 and
  • Re Alex (hormonal treatment for gender dysphoria) - (2004) 31 Fam LR 503 

Unique to Australia, the lives of young people are ruined and/or put at risk by the imposition of the legal precondition of Court approval in respect of adolescent Sex Affirmation Treatment which impose unnecessary costs, delay and trauma as well as making the young person's essential medical treatment a potential site for parental conflict.

Legal Sex = Assigned Sex

  • Part of the legally recorded particulars of a person created by a state or government at or near the birth event
  • Determined by a casual inspection of the external genitalia (only) - may not equate with a person's predominant biological sex
  • Evidenced by a 'Birth Certificate'
  • Is a legal (and not a biological) act and can be altered/amended by the State

Australian Statute Law (1)

  • Laws for the reassignment of legal sex and anti-discrimination law to protect people with diverse gender expression
  • Some States, like New South Wales, treat all people with intersexual conditions, including transsexualism, (except infants) the same way
  • Only Western Australia has a Panel Approval System
  • All require Genital Reassignment Surgery (SRS) as a pre-condition to the reassignment of Legal Sex (although the test for what is "post-op" for affirmed males is not the same as for affirmed females

Australian Statute Law - Key Issues

1. *Section 32A of NSW Births, Deaths and Marriages Registration Act 1995 defines "sexual reassignment surgery" as "a surgical procedure involving the alteration of a person's reproductive organs carried out:

(a) for the purpose of assisting a person to be considered to be a member of the opposite sex, or
(b) to correct or eliminate ambiguities relating to the sex of the person."

Australian Statute Law - Key Issues

2. *Section 32I of NSW Births, Deaths and Marriages Registration Act 1995 clearly states the effect of a change of a person's birth particulars as to their sex: "A person the record of whose sex is altered under this Part is, for the purposes of, but subject to, any law of New South Wales, a person of the sex as so altered."

* As in any reassignment of Legal Sex due to an intersexual condition, the primary legal particulars and the actual birth certificate are amended

3. Current Law Reform Issues:

  • The introduction of compassionate exceptional provisions to provide the re-assignment of legal sex where sex affirmation surgery is impossible due to age or health related issues
  • Removal of prohibition on married people having their legal sex reassigned
  • A Centre of Excellence to provide dedicated health services (especially for the young) and medical education

^ Back to top

Human Rights (1)

The Preamble to the Universal Declaration of Human Rights:

"…recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world". 

Human Rights (2)

  • universal and inalienable
  • a concept that acknowledges the equality of all human beings;
  • Acknowledges the mutually dependent need each of us has for the respect and honourable regard other
  • Require Clarity of Expression and Reception as much as Assertion

Difference/Diversity as Spiritual/Cultural Treasure
Pied Beauty by Gerard Manley Hopkins (1844-89)

Glory be to God for dappled things -
For skies of couple-colour as a brinded cow;
For rose-moles all in stipple upon trout that swim;
Fresh-firecoal chestnut-falls; finches' wings;
Landscape plotted and pieced-fold, fallow, and plough;
And all trades, their gear and tackle and trim.
All things counter, original, spare, strange;
Whatever is fickle, freckled (who knows how?)
With swift, slow; sweet, sour; adazzle, dim;
He fathers-forth whose beauty is past change:
Praise Him.

Difference/Diversity as a valuable part of a person's and a culture's health

  • Biological health
  • Psychological health

A 'SHADOW' OF THE HUMAN PSYCHE* the difference feared and the richness needed for a healthy and real experience of human diversity

* Dr Jung - that part of us we fail to see or know - Robert A. Johnson "Owning Your Own Shadow".


"Umuntu ngumuntu ngabantu" - "a person is a person because of other people. You can do nothing if you do not get the support of other people" (Nelson Mandela)

"It refers to gentleness, to compassion, to hospitality, to openness to others, to vulnerability, to be available to others and to know that you are bound up with them in the bundle of life" (Archbishop Tutu) 

Current Australian Human Rights Tyrannies for people with Diversity in Sexual Formation*

  1. Non-therapeutic Infant genital normalisation surgery
  2. The requirement of expensive, stressful and potentially harmful (Family Court) legal proceedings Court Order as a precondition for non-surgical adolescent Sex Affirmation Treatment
  3. The compassionate/provisional re-assignment of a person's (especially a treated adolescent's) Legal Sex
  4. The lack of any adequate unprejudiced (non-mental illness) Medical, Psychological and Social Worker Education concerning the needs and treatment of people with Diversity in Sexual Formation
  5. The provision of specific Medicare Item Numbers to facilitate Affordable Medical Treatment

*The author considers that the current project by the Australian Human Rights Commission for the "Sex and Gender Diverse" (called "Sex Files") fails to properly distinguish sexual diversity issues from gender expression issues or to properly prioritise human rights reform issues.

"If the 20th Century can be said to be the one in which the world was made safe for democracy, let it be said that the 21st century was the one in which the world was made safe for diversity." 
Shashi Tharoor - Author and UN Undersecretary-General for Communications and Public Information

"My Life is My Message" - M Ghandi

^ Back to top