Recognition of Non-Binary Genders on Birth Certificates: The Case for Gender Abolitionism from Queer & Feminist Perspectives

This is the critical essay based upon my earlier Project Proposal, which you can read here. I achieved 20/20 for my Project Proposal, and this Major Project (my critical essay) achieved 60/60.

Introduction

Considering the important, if not central, place that the law plays in the development and maintenance of social regulation,[1] it is not surprising to see how entrenched the heteronormative/cis-normative conception of sex/gender is within Australian law.[2] This paper will examine the current position in law regarding the recognition of transgender, intersex and other non-binary genders within Australian law,[3] focusing on the ability given to adults to register change from their assigned sex/gender at birth in acknowledgement of their self-identified gender outside the gender binary. This will involve an examination of the historical development of the understanding of sex/gender in UK, Australian and international law, [4] before turning to a close examination of the current Births, Deaths and Marriages Registration (‘BDMR’) laws in Queensland (as an example of the continued persistence of a bio-medical model[5] within Australian law), compared to the more progressive reforms in Tasmania and Victoria (as examples of a move towards a self-identification model of sex/gender).[6]

My critique will involve exploring various aspects of queer and feminist theories that relate to how sex/gender could be conceptualised, the relationship between embodiment and gender, sex as biological fact versus gender as social construct, and of the concept of ‘value-free science’.[7] Applying these various theoretical perspectives, I will critique the relevance of gender in law, and argue for developing towards a genderless society – as envisioned by certain queer and feminist theorists.[8]

Historical Development of the Law’s Understanding of Sex/Gender

Sex has always been assumed to be an important marker on a person’s birth register, especially being essential to the person’s future in terms of marriage and family. The leading UK case of Corbett v Corbett (otherwise Ashley)[9] discussed the relevance of gender to the law, as well as the issue of developing a test for determining the legal gender identity of an individual (particularly with reference to the essential place that biological sex played in the marriage relationship). The court affirmed a biological essentialist position in which sex was determined based on the chromosomal, genital and gonadal configuration of an individual’s body at birth. While some acknowledgement was given to the psychological and social aspects of sex/gender, these were considered irrelevant when considering sex/gender for the purpose of marriage law.[10]

A shift of attitude in the understanding of sex/gender in Australian case law is evidenced in the earlier cases of Re Kevin[11](which was discussed in the UK in the case of Bellinger v Bellinger[12] in 2003), in which the court declined to follow the precedent set in Corbett v Corbett, and affirmed that in relation to marriage, sex should be determined based on physical characteristics (chromosomes, genitals and gonads), but as evident at the time of the marriage, rather than being set at birth.This shift in Australian and UK law must be understood within the context of developments over the past decade and a half in international law. There have been calls to make legal recognition for transgender people a global priority.[13] Within international criminal law, gendered violence against trans people has been discussed as being invisible, perpetuating injustice, especially as the wording around gendered crimes such as rape and sexual assault are dated and explicitly framed within the gender binary.[14] It states:

For the purpose of [the Rome Statute], it is understood that the term “gender” refers to the two sexes, male and female, within the context of society. The term “gender” does not indicate any meaning different from above.[15]

The fact that gender and sex are equated, and it is expressly limited to male and female as the ‘two sexes’ is troubling, in spite of the words ‘within the context of society’, which could imply some aspects of the social construction of gender being acknowledged. This strong support for the gender binary, which impliedly could be in support of the biomedical model of sex equating gender, contrasts with the more recent developments in the Yogyakarta Principles,[16] in which gender identity is defined broadly as:

…refer[ring] to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms’.[17]

This definition of ‘gender identity’ evidently shows support for the acknowledgement of the self-identification model of sex/gender, which will be discussed below, through the legislative capacity of the State.[18]

Turning back to consider developments in Australian case law, the cases related to AB v Western Australia[19] clearly affirmed that the biological test of Corbett v Corbett[20] had been replaced by what has come to be known as the “multifactorial approach”, based on Re Kevin,[21] which balanced biological “facts” with social and psychological factors. A further step forward was evident in the unanimous decision of the High Court in Registrar of Births, Deaths and Marriages (NSW) v Norrie,[22] in which it was declared that sex is not binary (only male or female), nor is it set according to the assignment of sex at birth. The High Court affirmed that the NSW legislation empowered the Registry to note Norrie’s sex as ‘unspecified’.

It was from my research into the continuing development since Norrie of acknowledgement for transgender, intersex and non-binary genders in Australian official documents that forms the basis for this paper.[23] In examining the BDMR legislation regarding applications for change of sex markers on the birth register, I will be focusing primarily on the process for adults, whereas there are more complex processes for children, involving consent by parents or guardians. There are also some differences, such as in Victoria’s legislation for residents of the State who were born elsewhere, as opposed to those born within Victoria. For the sake of discussion of the current legal position as the basis for further theoretical discussion of the biomedical versus self-identification models of sex/gender, and further, theoretical discussions of sex/gender and embodiment more broadly, I will limit the discussion to these elements of the law.

The Bio-Medical Approach and NSW/Queensland BDMR Legislation

The bio-medical model is essentially the traditional model of sex/gender as a gender binary of male and female, with an implicit understanding that any departure from the binary is abnormal and requires rectification. It also underpins the historical diagnosis of transgender and diverse gender identities as a mental disorder.[24] In many ways, ongoing research into the course of individual gender development and the diversity of non-conforming embodiment (requiring ongoing enforced invisibility of such phenomenon)[25] has broken down the hegemonic dominance of biomedical models of sex/gender, with non-binary gendered experiences  no longer being pathologized.[26] The detrimental impact of the traditional biomedical model of sex/gender is particular evident in the traditional ‘treatment’ of intersex infants and children by so-called “gender normalization surgery”.[27] There has been a shift towards normalization and acknowledgement of intersex status as a valid sex/gender identity.[28]

The Queensland Act governing BDMR is the Births, Deaths and Marriages Registration Act 2003 (Qld). Queensland’s Act speaks of ‘reassignment of sex’,[29] including the requirement that an applicant undergo a ‘sexual reassignment surgery’[30] – and provide evidence through two statutory declarations from registered medical practitioners that they have done so.[31] The emphasis is upon a person’s ‘reproductive organs’ and the procedure is done for the purpose of assisting a person to be considered (by others) as a member of the ‘opposite sex’. Thus, Queensland law, at least on its face, appears to affirm an approach closer to the biological essentialist approach in Corbett v Corbett,[32] (though closer to the later position in Bellinger v Bellinger)[33] as well as implicitly affirming the gender binary, with transition being from one sex to its “opposite”.

Sex as Biological Fact vs Gender as Social Construct

An interesting example of the kinds of alleged research and findings into the sex/gender binary as a biological fact[34] is discussed by Judith Butler in her Gender Trouble,[35] in which a researcher into human genetics allegedly had discovered the ‘binary switch upon which hinges all sexually dimorphic characteristics’.[36] Further research, however, has shown the existence of chromosomally XX individuals who were identified as males based on their primary and secondary “sex characteristics” (genitalia and other characteristics impacted by hormonal levels) and chromosomally XY individuals who were similarly identified as female based on their primary and secondary “sex characteristics”.[37] These show clear cases of where the component ‘parts of sex’ (relied upon in the traditional Corbett test)[38] ‘do not add up to a recognizable coherence or unity that is usually designated by the category of [biological] sex’.[39]

The fact that such discontinuities exist should challenge the act of giving recourse to a single determinant of sex – whether chromosomal, genital, gonadal, hormonal, or otherwise[40] – and expose the multidimensional nature of human biology when it comes to ‘the taken-for-granted world of sexual categorization’.[41] It is also evident how, rather than acknowledging the ambiguity and lack of perfect explanatory power of a biological sexual binary model, most medical practitioners settle for assuming recourse to the external genitalia to resolve the issue.[42] The existence of such ambiguously-sexed individuals should challenge the implicit cultural assumptions underlying the construction of the binary relation of gender itself which frame and focus research into biological sex[43] (an issue that I will discuss further down in relation to the critique of alleged ‘value-free science’).

The desire to determine the sex of an individual – and to categorise them as one or the other – issues not from the objectivity of science, but from the ‘social organization of sexual reproduction through the construction of the clear and unequivocal identities and positions of sexed bodies with respect to each other’,[44] a fundamental element of the implied system of compulsory heterosexuality that operates in society to enforce a system of compulsory sexual reproduction.[45]

Two important theorists, whose writings grapple with the creation of new models for biological sex that capture some of the multidimensional nature of sex are Gayle Rubin[46] and Anne Fausto-Sterling.[47]

Gayle Rubin’s ‘Sex/Gender System’

Judith Butler interviewed Gayle Rubin to discuss the development in her thinking between her essay, ‘The Traffic in Women’ and her later essay, ‘Thinking Sex’,[48] in which she discussed the ongoing issues of a binary understanding of sex/gender even when sex/gender is defined more broadly as a continuum, with our thinking still tending to fall into a binary opposition, whether between male/female or heterosexual/homosexual.[49]

“Sexual essentialism”[50] views sex as a natural (ahistorical) category that exists prior to social life and shapes the institutions of human life, as opposed to being a category created through social life. Western society – and science –still implicitly accepts as folk wisdom the principle of sexual essentialism, in conceptualising the notion of biological sex as ‘unchanging, ahistorical, and [even] transhistorical’.[51] However, the historical nature of sex, gender and sexuality has been strongly argued by Michel Foucault,[52] that sex as the property of an individual is socially derived, and desire, rather than being a pre-existing biological entity, is instead constituted in the course of historically-specific, social practices. Rubin developed her conception of the “sex/gender system” as ‘that set of arrangements by which a society transforms biological sexuality into products of human activity’.[53] All of these ideas feed into the later conceptions of gender as performative in the works of Judith Butler, discussed below.

Anne Fausto-Sterling’s Early Five-Sex Model and Critiques of It

From her earlier work involving intersexual individuals,[54] Anne Fausto-Sterling devised a five-sex model, in which male and female were at either end of the spectrum, and three new sexes – true hermaphrodites (‘herms’), male pseudohermaphrodites (‘merms’) and female pseudohermaphrodites (‘ferms’).[55] While still conceptualising sex as being biologically-based, Fausto-Sterling sought to acknowledge the diverse spectrum of individuals, rather than merely the male/female binary. She argued, along with intersexuality activists such as Iain Morland and others,[56] that the lack of acknowledgement for a diversity of physical sexes was the basis for unnecessary ‘normalisation’ procedures, in an effort to enforce the normative model of male/female and of sexual heteronormativity.[57] Gender assignment is done solely according to best surgical sense and then the parents are encouraged to raise their child according to the surgically assigned gender. This feeds into a discourse where, rather than seeing the existence of ‘intersex’ individuals as natural, they say it as completing nature’s intention by assigning them as a boy or girl.[58]

Fausto-Sterling later revisited her five-sex model of sex/gender, critiquing her own model based on the incorporation of the transgender persons, who defined themselves psychologically as a gender at odds with their physical sex, yet who were happy to live in the ambiguous zone where psychological and biological factors do not fit within the heteronormative binary understanding of sex/gender.[59]

Critiques of sex as biological fact versus gender as social construct

Anne Fausto-Sterling’s questioning the purely biological basis for the category of sex/gender – whether on a genetic, cellular or hormonal level – and instead considering how the development of an individual’s gender identity itself appeared to be something yet to be understood as a complex interaction of all of these corporeal aspects with environment and experience[60] is a good basis for embarking on the critique of value-free biological science. 

Cordelia Fine’s work into exploding the myth of an inherent neurological difference between the way men’s and women’s brains function[61] exposes how science is often deployed to buttress social conceptions of sex/gender.[62] Feminist critique of biological and neurological difference between men and women can be deployed to explore the social basis for this dichotomy regarding diverse gender identities.[63]

Alleged discovery of ‘binary switches’ in the genetic code of human beings at the root of all ‘dimorphic sexual characteristics’ has continued to be critiqued,[64] leading to similar conclusions to the developing work of Anne Fausto-Sterling, arguing that the formation of gender identity, while having some base in the body, in reality involve a complex and little understood interaction between the individual’s body, environment and experience – which a biological determinist/essentialist arguments cannot account for. Sex/gender must be acknowledged as a social construct, with even the category of biological sex itself being a social construct deployed to enforce heteronormativity, and not value-free at all.[65]

Self-Identification Model in Tasmanian/ Victorian BDMR Legislation

In contrast to the approach evidenced in Queensland legislation, both Tasmania and Victoria’s legislation[66] has been amended in 2019[67] towards a more progressive, self-identification model of sex/gender. In contrast to the traditional limitations of the biomedical model of two sex/genders – male and female – the self-identification model acknowledges that gender is an internal and individual experience,[68] and something that does not require intervention by the medical or psychiatric profession to assign gender based on physical characteristics of the body, such as chromosomes, genitals or gonads.[69] The recent reforms to BDMR legislation in Victoria and Tasmania show some acknowledgement of this model.

The Parts of their Acts are headed as ‘Gender Identity’[70] and ‘Acknowledgement of sex’.[71] Applications can be made by adults[72] with no requirement of invasive surgical procedures. Instead, the applicant must made a ‘gender declaration’ affirming their belief in a nominated gender descriptor, together with a supporting statement (Victoria) by an adult who has known them for at least 12 months, and who can testify that they believe the application is being made in good faith and that they support the application[73] – or in the case of Tasmania, a statutory declaration from a counsellor, affirming that the applicant has undergone counselling to understand the decision they are making.[74] These changes have been positively received by the transgender and gender diverse communities in both Tasmania[75] and Victoria.[76] These legislative changes reflect the more progressive “multifactorial approach” to gender identity.

Theories of Gender

Judith Lorber explains the diverse constellation of concepts that forms an individual’s gender, such as their internal gender identity, their gender expression to outsiders, etc.[77] In arguing for the law to embrace a new conception of gender identity, Franklin Romeo argued that the law should consider the expression of an individual’s gender identity should be considered as healthy and legitimate, irrespective of whether it conforms to societal expectations of either their assigned birth-sex, or even the identity that they are seeking to express.[78]  

Doing/Undoing/Redoing Gender

Candace West and Don Zimmerman were among the first to discuss the concept of gender as a thing that is constructed through social practice,[79] a concept that Judith Butler took further in her development of the concept of “gender performativity”.[80] This tied back into the critiques of Gayle Rubin[81] and Anne Fausto-Sterling[82] – based upon the theoretical investigations in Michel Foucault’s The History of Sexuality[83] – that placed both the social construction of gender and the sexed/gendered body and sexuality within its historical context. In her Bodies That Matter book,[84] Judith Butler addressed criticisms of her concept of gender performativity, based upon misunderstanding that “gender performance” was an individual choice, with gender being merely an outward act that an individual can choice to do or not do. It was argued that transgendered persons (as a queering of gender and subversion of hetero- and cis-normative expectations), could help in undoing gender as a binary, and positively work towards a ‘redoing of gender’.[85]

Trans* Identities and Politics

Jack/Judith Halberstam offers an interesting critique of gender from the perspective of the lived experience as a male-to-female transgender individual.[86] He/she explores the history of trans* identity, including a discussion of earlier psychoanalytic perspectives on inversion and the relationship between transsexuality and homosexuality.[87] Gender is confused by the amalgamation of medical terminologies attempting to classify various physical and psychological phenomena of sex/gender[88] – together with a growing vernacular around gender where terminologies such as genderqueer, non-binary, genderfluid, proliferate.[89] The term “transgender” itself has come to embrace a wide array of bodies with varying relations to cross-gender identification.[90]

One particularly complex aspect is the conflict between concepts of pre-operative versus post-operative transgender identities,[91] with many transgender individuals deciding not to go through with complex, expensive and invasive surgeries – not seeing it as necessary to ground their gender identity in changes their bodily morphology.[92] It definitely stretches the boundaries of gender identity and its relationship to those characteristics of genitalia, gonads and hormones that are usually confined to the definition of biological sex.

It is interesting, as pointed out by Halberstam, that:

When [the] logic that fixes bodily form to social practice comes undone, when narratives of sex, gender, and embodiment loosen up and become less fixed in relation to truth, authenticity, originality, and identity, then we have the space and the time to imagine bodies otherwise.[93]

Based on this “reimagination” of bodies, some trans-activists support lobbying for official recognition and categorization of diverse gender identities (such as on official documentation like birth certificates), whereas other more radical trans-activists question the need for state intervention in the regulation of gendered bodies.[94] In considering Dean Spade’s calls for gender abolitionism, I will now turn to consider similar critiques from xenofeminism.[95]

Xenofeminist Critique & Gender Abolitionism

Should gender fall within the State’s domain to regulate its assignment?[96] Xenofeminism envisions a future where gender has no social significance towards enforcing normative expectations for individuals. “Gender abolitionism” means that individual traits allocated within a rubric of binary gender would no longer furnish a grid for the asymmetric operation of power.[97] Drawing on earlier feminist critiques of reproduction,[98] “gender abolitionism” asserts that feminism should seek to not just abolish male privilege but establish a genderless society in which gender would no longer position an individual within society’s hierarchy.

Replacing a biological binary with a ‘plural but static constellation of gender identities’ merely enforces a new normativity, [99] while neglecting the reality of the multidimensional matrix of sex/gender.[100] Rather than seeking to create more categories along the gender spectrum, why should sex/gender (whether based on biology or self-identification) hold legal significance for how individuals relate and are positioned within society?

Conclusion

This paper set out to critically examine the historical development of the law regarding recognition of sex/gender both in law and society. Australian law currently embodies some aspects of the traditional biomedical model (such as in Queensland), which reinforces the gender binary, being fixated primarily on the configuration of an individual’s genitals, whether at birth or otherwise. Theories of biological sex developed around the phenomenon of intersexuality can be deployed to question the validity of the gender binary, as well as to question the alleged value-free nature of biological science. At the same time, some Australian states have pursued a more progressive acknowledgement of gender identity as a matter of individual self-determination, with greater weight given to social and psychological aspects as opposed to purely biological characteristics. However, in considering the developing theories around gender as a historical construct based upon social practice, the question must be put forward: Is gender still a necessary construct in defining an individual’s legal identity, especially considering that the primary purpose of the gender binary is tied to the social regulation of reproduction and marriage?


[1] Dylan Amy Davis, ‘The Normativity of Recognition: Non-binary Gender Markers in Australian Law & Policy’ (2017) 24 Advances in Gender Research 227; Laura Grenfell and Anne Hewitt, ‘Gender Regulation: Restrictive, Facilitative or Transformative Laws?’ (2012) 34 Sydney Law Review 761; Laura Griffin, ‘Law’s Changing Bodies: Contemporary and Historical Perspectives on Law and Embodiment’ (2019) 45(1) Australian Feminist Law Journal 1; Janet Rifkin, ‘Toward a Theory of Law and Patriarchy’ (1980) 3 Harvard Women’s Law Journal 83.

[2] Allan Ardill, ‘Gender “Developments” in Australian Law’ (2017) 31 The Journal Jurisprudence 19; Theodore Bennett, ‘“No man’s land”: Non-binary sex identification in Australian law and policy’ (2014) 37(3) The University of New South Wales Law Journal 847; Lena Holzer, ‘Sexually Dimorphic Bodies: A Production of Birth Certificates’ (2019) 45(1) Australian Feminist Law Journal 91.

[3] Mary Keyes, ‘The formal recognition of sex identity’ (2014) 28 Australian Journal of Family Law 266.

[4] David Brown, ‘Making Room for Sexual Orientation and Gender Identity in International Human Rights Law: An Introduction to the Yogyakarta Principles’ (2010) 31(4) Michigan Journal of International Law 821; Tom Dreyfus, ‘The “Half-Invention” of Gender Identity in International Human Rights Law: From CEDAW to the Yogyakarta Principles’ (2012) 37 Australian Feminist Law Journal 33; Michael O’Flaherty and John Fisher, ‘Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles’ (2008) 8(2) Human Rights Law Review 207.

[5] Franklin H Romeo, ‘Beyond a Medical Model: Advocating a New Conception of Gender Identity in the Law’ (2005) 36(3) Columbia Human Rights Law Review 713; William J Spurlin, ‘Queer Theory and Biomedical Practice: The Biomedicalization of Sexuality/The Cultural Politics of Biomedicine’ (2019) 40 Journal of Medical Humanities 7.

[6] Emily Blincoe, ‘Sex Markers on Birth Certificates: Replacing the Medical Model with Self-Identification’ (2015) 46(1) Victoria University of Wellington Law Review 57.

[7] Barbara J Risman, ‘Calling the Bluff of Value-Free Science’ (2001) 66(4) American Sociological Review 605.

[8] David Marcantelli, ‘Re-making Law’s Reality: An Avenue towards Sexless and Genderless Law’ (2016) 4(1) Griffith Journal of Law & Human Dignity 93; Alyson Escalante, ‘Gender Nihilism: An Anti-Manifesto’ (2015) Libcom.org [Online] <https://libcom.org/library/gender-nihilism-anti-manifesto>.

[9] [1970] 2 All ER 33.

[10] Paula Gerber, ‘Legal recognition of gender: When is a man a man?’ (2012) 20 Australian Journal of Administrative Law 16.

[11] Otherwise named, Kevin & Anor v Attorney-General (Cth) (2001) 165 FLR 404 and Attorney-General (Cth) v “Kevin & Jennifer” (2003) 172 FLR 300. Cf. Rachael Wallibank, ‘Re Kevin in Perspective’ (2004) 9 Deakin Law Review 461.

[12] Bellinger v Bellinger [2003] 2 All ER 593.

[13] UN Office of the High Commissioner for Human Rights (OHCHR), Born Free and Equal: Sexual Orientation and Gender Identity in International Human Rights Law (HR/PUB/12/06); ‘Rights in Transition: Making Legal Recognition for Transgender People a Global Priority’, Human Rights Watch (2016) <https://www.hrw.org/world-report/2016/country-chapters/africa-americas-asia-europe/central-asia-middle-east/north-0>; Mitchell Travis, ‘Accommodating Intersexuality in European Union Anti-Discrimination Law’ (2015) 21(2) European Law Journal 180.

[14] Daniela Jauk, ‘Invisible Lives, Silenced Violence: Transphobic Gender Violence in Global Perspective’ (2013) 18A Advances in Gender Research 111; Melanie O’Brien, ‘Sexual exploitation and beyond: Using the Rome Statute of the International Criminal Court to Prosecute UN Peacekeepers for Gender-based Crimes’ (2011) 11(4) International Criminal Law Review 803.

[15] Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002), art 7(3).

[16] The Yogyakarta Principles: Principles on the application of international human rights law in relation to sexual orientation and gender identity (2006) and The Yogyakarta Principles plus 10: Additional Principles and State Obligations on the Application of International Human Rights Law in Relation to Sexual Orientation, Gender Identity, Gender Expression and Sex Characteristics to Complement the Yogyakarta Principles (as adopted on 10 November 2017, Geneva).

[17] Ibid, Preamble.

[18] Dianne Otto, ‘Queering Gender [Identity] in International Law’ (2015) 33(4) Nordic Journal of Human Rights 299.

[19] AB & AH v Gender Reassignment Board (WA) (2009) 65 SR (WA) 1; Western Australia v AH & Anor (2010) 41 WAR 431; and AB v Western Australia (2011) 244 CLR 390.

[20] [1970] 2 All ER 33.

[21] (2003) 172 FLR 300.

[22] Norrie v Registry of Births, Deaths and Marriages [2011] NSWADT 102; Norrie v Registrar of Births, Deaths and Marriages [2011] NSWADTAP 53; Norrie v NSW Registrar of Births, Deaths and Marriages (2013) 84 NSWLR 697; Registrar of Births, Deaths and Marriages (NSW) v Norrie (2014) 250 CLR 490.

[23] Margaret Otlowski, ‘The Legal Status of a Sexually Reassigned Transsexual: R v Harris and McGuiness and Beyond’ (1990) 64 The Australian Law Journal 67.

[24]  Reiss Smith, ‘World Health Organization drops transgender from list of mental disorders’, Pink News UK (27 May 2019) <https://www.pinknews.co.uk/2019/05/27/world-health-organisation-transgender-mental-disorder/>; Vic Parsons, ‘One year on since being trans was declassified as a mental disorder, here’s 75 times trans rights took a step backwards’, Pink News UK (26 May 2020) <https://www.pinknews.co.uk/2020/05/26/trans-rights-world-health-organization-gender-identity-disorder-lizz-truss-viktor-orban/>; Jack Drescher, ‘Gender Diagnoses and ICD-11’, Psychiatric News (15 Aug 2016) <https://psychnews.psychiatryonline.org/doi/full/10.1176/appi.pn.2016.8a15>; Morgan Carpenter, ‘Joint Statement on the International Classification of Diseases 11’, Intersex Human Rights Australia (23 May 2019) <https://ihra.org.au/35299/joint-statement-icd-11/>.

[25] Aileen Kennedy, ‘Fixed at birth: Medical and legal erasures of intersex variation’ (2016) 39(2) The University of New South Wales Law Journal 813.

[26] Eliza A Dragowski, Ewa Adamek and Matthew A Malouf, ‘Understanding Diversity of Sexual Development – Part I: Biological and Social Issues’ (2015) 43(6) Communique 1; Eliza A Dragowski, Ewa Adamek and Matthew A Malouf, ‘Understanding Diversity of Sexual Development – Part II: Mental Health Concerns and Recommendations for Inclusive Practice in Schools’ (2015) 43(7) Communique 1.

[27] Kristin Zeiler and Anette Wickstrom, ‘Why do “we” perform surgery on newborn intersexed children?’ (2009) 10(3) Feminist Theory 359; Leonard Sax, ‘How Common is Intersex? A Response to Anne Fausto-Sterling’ (2002) 39(3) The Journal of Sex Research 174; Skye O’Dwyer, ‘“Treatment” of Intersex Children as a Special Medical Procedure’ (2017) 24 Journal of Law & Medicine 870; Karen Gurney, ‘Sex and The Surgeon’s Knife: The Family Court’s Dilemma… Informed Consent and the Spectre of Iatrogenic Harm to Children with Intersex Characteristics’ (2007) 33 American Journal of Law & Medicine 625; Fiona Kelly and Malcolm K Smith, ‘Should court authorization be required for surgery on intersex children? A critique of the Family Court decision in Re Carla’ (2017) 31 Australian Journal of Family Law 118.

[28] Carpenter, Morgan, ‘The “Normalization” of Intersex Bodies and “Othering” of Intersex Identities in Australia’ (2018) 15 Bioethical Inquiry 487.

[29] Births, Deaths and Marriages Registration Act 2003 (Qld), Part 4 Reassignment of sex.

[30] Ibid, sch 2.

[31] Ibid, s 23(4)(b)(i) and (6).

[32] [1970] 2 All ER 33.

[33] [2003] 2 All ER 593.

[34] Autumn Elizabeth, ‘Challenging the Binary: Sexual Identity that is Not Duality’ (2013) 13(3) Journal of Bisexuality 329; J Richard Udry, ‘Biological Limits of Gender Construction’ (2000) 65 American Sociological Review 443.

[35] Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (Routledge, 1990).

[36] Ibid, 145.

[37] Ibid, 146.

[38] Corbett v Corbett (otherwise Ashley) [1970] 2 All ER 33.

[39] Judith Butler (n 35), 147.

[40] Ibid, 149.

[41] Ibid, 150.

[42] Ibid, 150.

[43] Ibid, 148.

[44] Ibid.

[45] Ibid.

[46] Judith Butler and Gayle Rubin, ‘Sexual Traffic: Interview with Gayle Rubin by Judith Butler’ in Rubin, Gayle S, Deviations (Duke University Press, 2012) 276; Gayle S Rubin, ‘Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality’ in Deviations: A Gayle Rubin Reader (Duke University Press, 2011) 143; Gayle S Rubin, ‘The Traffic in Women: Notes on the “Political Economy” of Sex’ in Deviations (Duke University Press, 2012) 33.

[47] Anne Fausto-Sterling, Myths of Gender: Biological Theories about Women and Men (Taylor & Francis Group, 2nd edition, 1992 [1st edition, 1985]); Anne Fausto-Sterling, Anne, ‘The five sexes: why male and female are not enough’ (1993) 33(2) The Sciences 20; Anne Fausto-Sterling, ‘The Five Sexes, Revisited: The emerging recognition that people come in bewildering sexual varieties is testing medical values and social norms’ (2000) 40(4) The Sciences 18; Anne Fausto-Sterling, Sex/Gender: Biology in a Social World (Taylor & Francis Group, 2012); Anne Fausto-Sterling, Sexing the Body: Gender Politics and the Construction of Sexuality (Basic Books, 2nd edition, 2020 [1st edition 2000]).

[48] Judith Butler and Gayle Rubin (n 46).

[49] Ibid, 284.

[50] Gayle S Rubin, ‘Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality’ in Deviations: A Gayle Rubin Reader (Duke University Press, 2011) 143, 149.

[51] Ibid.

[52] Michel Foucault, The History of Sexuality, Vol 1 (Random House, 1978).

[53] Gayle S Rubin, ‘The Traffic in Women: Notes on the “Political Economy” of Sex’ in Deviations (Duke University Press, 2012) 33, 34, as cited in Gayle S Rubin, ‘Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality’ in Deviations: A Gayle Rubin Reader (Duke University Press, 2011) 143, 169.

[54] Anne Fausto-Sterling, Myths of Gender: Biological Theories about Women and Men (Taylor & Francis Group, 2nd edition, 1992 [1st edition, 1985]).

[55] Anne Fausto-Sterling, Anne, ‘The five sexes: why male and female are not enough’ (1993) 33(2) The Sciences 20; Anne Fausto-Sterling, Sex/Gender: Biology in a Social World (Taylor & Francis Group, 2012); Anne Fausto-Sterling, Sexing the Body: Gender Politics and the Construction of Sexuality (Basic Books, 2nd edition, 2020 [1st edition 2000]).

[56] Iain Morland, ‘The Injustice of Intersex: Feminist Science Studies and the Writing of a Wrong’ (2005) 36 Studies in Law, Politics & Society 53; Iain Morland, ‘Why Five Sexes Are Not Enough’ in Noreen Giffney and Michael O’Rourke (eds), The Ashgate Research Companion to Queer Theory (Taylor & Francis Group, 2009) 47; Aileen Kennedy (n 25).

[57] Anne Fausto-Sterling, Anne, ‘The five sexes: why male and female are not enough’ (1993) 33(2) The Sciences 20; Anne Fausto-Sterling, Sex/Gender: Biology in a Social World (Taylor & Francis Group, 2012); Anne Fausto-Sterling, Sexing the Body: Gender Politics and the Construction of Sexuality (Basic Books, 2nd edition, 2020 [1st edition 2000]).

[58] Ibid.

[59] ; Anne Fausto-Sterling, ‘The Five Sexes, Revisited: The emerging recognition that people come in bewildering sexual varieties is testing medical values and social norms’ (2000) 40(4) The Sciences 18.

[60] Ibid.

[61] Cordelia Fine, Testosterone Rex: Unmaking the Myths of our Gendered Minds (Icon Books Ltd, 2017).

[62] Cordelia Fine et al., ‘Plasticity, plasticity, plasticity… and the rigid problem of sex’ (2013) 17(11) Trends in Cognitive Sciences 550.

[63] Anelis Kaiser and Isabelle Dussauge, ‘Feminist and Queer Repolitications of the Brain’ (2015) April Espacetemps.net [Online]; Judith Lorber, ‘Gendered and Sexed Brains’ (2011) 40(4) Contemporary Sociology 405.

[64] Eleanor M Miller and Carrie Yang Costello, ‘The Limits of Biological Determinism’ (2001) 66(4) American Sociological Review 592.

[65] Barbara J Risman (n 7); Judith Lorber, ‘Believing is Seeing: Biology as Ideology’ (1993) 7(4) Gender & Society 568; Vernon A Rosario, ‘The Biology of Gender and the Construction of Sex?’ (2004) 10(2) GLQ: A Journal of Lesbian and Gay Studies 280.

[66] Births, Deaths and Marriages Registration Act 1999 (Tas) and Births, Deaths and Marriages Registration Act 1996 (Vic).

[67] Justice and Related Legislation (Marriage and Gender Amendments) Act 2019 (Tas) and the Births, Deaths and Marriages Registration Amendment Act 2019 (Vic).

[68] Emmanuel Theumer, ‘The self-perceived gender identity’ (2020) 22(4) Interventions 498.

[69] Jaco Erasmus, ‘Legal requirements to change gender: an abuse of human rights?’ (2011) 19(3) Australian Psychiatry 271.

[70] Births, Deaths and Marriages Registration Act 1999 (Tas), Part 4A Gender identity.

[71] Births, Deaths and Marriages Registration Act 1996 (Vic), Part 4A Acknowledgement of sex.

[72] Births, Deaths and Marriages Registration Act 1996 (Vic), s 30A, with Tasmania’s legislation (Births, Deaths and Marriages Registration Act 1999 (Tas), s 28A allowing anyone 16 years old and over to apply on their own.

[73] Births, Deaths and Marriages Registration Act 1996 (Vic), s 30A.

[74] Births, Deaths and Marriages Registration Act 1999 (Tas), s 28A(6).

[75] Brendan Gogarty, ‘All colours of the rainbow: why Tasmania’s new gender identity laws are warranted’, The Conversation, 22 Jun 2020; Brooke Fryer, ‘Law reform body finds Tasmania’s transgender laws working well, recommends changes to stop non-consensual surgery’, SBS News, 22 Jun 2020; Sally Goldner, ‘Birth certificate laws must change for trans and gender diverse people’, SMH, 13 Apr 2019.

[76] Hayley Elg, ‘“The more legal recognition we get, the safer we are”: Proposed changes welcomed by gender diverse community’, The Ballarat Courier, 1 Jul 2019; Josh Taylor, ‘Bill to allow transgender people to change birth certificate without surgery clears first hurdle in Victoria’, The Guardian, 15 Aug 2019; Shannon Deery, ‘Gender shift now surgery-free’, Herald Sun, 2 May 2020; James Hancock, ‘Transgender community welcomes changes to Victorian birth certificates’, ABC News, 16 May 2020.

[77] Judith Lorber, Paradoxes of Gender (Yale University Press, 1994), 22-27.

[78] Franklin H Romeo (n 5).

[79] Candace West and Don Zimmerman, ‘Doing Gender’ (1987) 1(2) Gender & Society 125.

[80] Judith Butler, ‘Performative Acts and Gender Constitution: An Essay in Phenomenology and Feminist Theory’ (1988) 40(4) Theatre Journal 519; Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (Routledge, 1990 [2nd edition 1999]); Judith Butler, ‘Imitation and gender subordination’ in Diana Fuss (ed), Inside/Out: Lesbian Theories, Gay Theories (Taylor & Francis Group, 1991) 13; Judith Butler, Bodies That Matter: On the Discursive Limits of “Sex” (Routledge, 1993); Judith Butler, Undoing Gender (Routledge, 2004).

[81] Judith Butler and Gayle Rubin, ‘Sexual Traffic: Interview with Gayle Rubin by Judith Butler’ in Rubin, Gayle S, Deviations (Duke University Press, 2012) 276; Gayle S Rubin, ‘Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality’ in Deviations: A Gayle Rubin Reader (Duke University Press, 2011) 143; Gayle S Rubin, ‘The Traffic in Women: Notes on the “Political Economy” of Sex’ in Deviations (Duke University Press, 2012) 33.

[82] Anne Fausto-Sterling, Myths of Gender: Biological Theories about Women and Men (Taylor & Francis Group, 2nd edition, 1992 [1st edition, 1985]); Anne Fausto-Sterling, Anne, ‘The five sexes: why male and female are not enough’ (1993) 33(2) The Sciences 20; Anne Fausto-Sterling, ‘The Five Sexes, Revisited: The emerging recognition that people come in bewildering sexual varieties is testing medical values and social norms’ (2000) 40(4) The Sciences 18; Anne Fausto-Sterling, Sex/Gender: Biology in a Social World (Taylor & Francis Group, 2012); Anne Fausto-Sterling, Sexing the Body: Gender Politics and the Construction of Sexuality (Basic Books, 2nd edition, 2020 [1st edition 2000]).

[83] Michel Foucault, The History of Sexuality, Vol 1 (Random House, 1978).

[84] Judith Butler, Bodies That Matter: On the Discursive Limits of “Sex” (Routledge, 1993).

[85] Jay Prosser, Second Skins: The body narrative of transsexuality (Columbia University Press, 1998); Catherine Connell, ‘Doing, Undoing, or Redoing Gender? Learning from the Workplace Experiences of Transpeople’ (2010) 24(1) Gender & Society 31.

[86] Jack/Judith Halberstam, Gaga Feminism: Sex, Gender, and the End of Normal (Beacon Press, 2012); Jack/Judith Halberstam, Trans*: A Quick and Quirky Account of Gender Variability (University of California Press, 2018).

[87] Jack/Judith Halberstam, Trans*: A Quick and Quirky Account of Gender Variability (University of California Press, 2018) 8.

[88] Nat Thorne et al., ‘The terminology of identities between, outside and beyond the gender binary – A systematic review’ (2019) 20(2/3) International Journal of Transgenderism 138.

[89] Jack/Judith Halberstam, Trans*: A Quick and Quirky Account of Gender Variability (University of California Press, 2018) 10.

[90] Ibid, 26.

[91] Paisley Currah, ‘Gender Pluralisms under the Transgender Umbrella’ in Paisley Currah, Richard M Juang and Shannon Price Minter (eds), Transgender Rights (University of Minnesota Press, 2006) 3; Paisley Currah, ‘The Transgender Rights Imaginary’ in Martha Albertson Fineman, Jack E Jackson and Adam P Romero, Feminist and Queer Legal Theory: Intimate Encounters, Uncomfortable Conversations (Taylor & Francis Group, 2009) 245; Talia Mae Bettcher, ‘Trapped in the Wrong Theory: Rethinking Trans Oppression and Resistance’ (2014) 39(2) Signs 383.

[92] Jack/Judith Halberstam, Trans*: A Quick and Quirky Account of Gender Variability (University of California Press, 2018) 28.

[93] Ibid, Preface.

[94] Dean Spade, ‘Intersectional Resistance and Law Reform’ (2013) 38(4) Signs 1031; Dean Spade, ‘Administering Gender’ in Normal Life: Administrative Violence, Critical Trans Politics, and the Limits of Law (Duke University Press, 2015) 73.

[95] Ibid.

[96] Laboria Cuboniks, Xenofeminism: A Politics of Alienation (@Xenofeminism, 2015); Helen Hester, Xenofeminism (Polity Press, 2018).

[97] Laboria Cuboniks, Xenofeminism: A Politics of Alienation (@Xenofeminism, 2015) 55 [0X0E].

[98] Shulamith Firestone, A Dialectic of Sex [Originally 1970] (Verso, 2015).

[99] Laboria Cuboniks, Xenofeminism: A Politics of Alienation (@Xenofeminism, 2015) 45 [0X0B].

[100] Anne Fausto-Sterling, Anne, ‘The five sexes: why male and female are not enough’ (1993) 33(2) The Sciences 20; Anne Fausto-Sterling, ‘The Five Sexes, Revisited: The emerging recognition that people come in bewildering sexual varieties is testing medical values and social norms’ (2000) 40(4) The Sciences 18.

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