Sexual Identity is Determined Between the Ears, not the Legs.
The Age, Australia, March 6, 2006
He said, she said
By Stephen Dow
Lawyer Rachael Wallbank turned 50 on Saturday. Among those sharing the family law specialist's milestone were her grown children, Rebecca, Kate and James. They often refer to her as Rachael, but still think of her as and sometimes still call her Dad.
The lives of people with transsexuality, and their emotional, medical and legal battles have entered the mainstream's consciousness with the release of first time writer-director Duncan Tucker's groundbreaking film Transamerica, starring Felicity Huffman in a critically lauded role. Huffman scored a Golden Globe in January for her performance and was favoured to win a Best Actress Oscar on Sunday for her role as Bree, previously known as Stanley, who was born with transsexualism.
Wallbank, a formidably intelligent woman, changed her "public sex" at 38, but does not call herself "a transsexual" or a "transsexual woman". Previously married and known as Richard, and having fathered three children, Wallbank refers to herself as a "female who has experienced transsexualism".
For her, the description transsexual reduces a person to a condition. Pop culture could now improve public understanding of people with transsexualism. Last week, Wallbank and her son James, 16, saw Transamerica. Felicity Huffman's Bree plans to undergo sex affirmation surgery (what used to be commonly known as sex change surgery) to change her genital sex to female, but her plan is diverted by the discovery of a teenage son she never knew she'd fathered.
Confused? So is Toby, Bree's 17-yearold son, played by Kevin Zegers. He takes her at face value as a female missionary as they travel America's roads together, only to spot her in the rear view mirror standing, rather than squatting, to take a roadside pee, in a fairly graphic moment.
"I was pleasantly surprised," Wallbank says, seated behind her desk in her office in Burwood, in Sydney's innerwest. "I enjoyed it. And I found it quite poignant, particularly the parent-child issues; the reality of a female father and her relationship to her son. It's used as a vehicle to tell a human story. It's not used as a circus routine."
Sally Goldner, 40, a spokeswoman for Transgender Victoria, says Transamerica is a "landmark transsexual film and very relevant". In it, Bree's parents essentially say they love her but don't respect her.
"That was the part that hit the spot for me," says Goldner, who was declared male at birth and today is happy to be called a "transsexual woman" for the sake of conciseness. Huffman, Goldner says, is very believable in the role of Bree. One child's question of Bree in the film "are you a boy or a girl?" is the classic experience of transsexual people, says Goldner.
Wallbank was also impressed by Bree facetiously telling her psychiatrist how funny it is that cosmetic surgery can "fix" a psychiatric condition: a reference to the continued treatment in some medical and cultural quarters of transsexualism as a mental disorder sometimes referred to as "gender dysphoria".
Wallbank's views are noteworthy, and not only for the cause of the estimated 5000 Australians who live with transsexualism. Her efforts in the Family Court on behalf of her clients "Kevin and Jennifer" not their real names who wed in 1999, established marriage rights for couples where one partner has already had sex affirmation surgery.
Kevin's sex had been "reassigned" in 1995. The full court of the Family Court affirmed the marriage in 2003, dismissing the Commonwealth's objection that Kevin could not qualify as a husband because he was born with female genitalia. In doing so, the court significantly rebuffed the Howard Government's views about who should be allowed to marry.
An anticipated High Court challenge has not materialised. In the past three years many more such couples at least a dozen that Wallbank is aware of are known to have also married. Kevin, 40, and Jennifer, 39, remain married in Sydney's inner-west with their two sons, conceived by donor sperm.
In essence, Wallbank helped to advance the understanding that sexual identity as manifested in transsexualism is biological and innate and not a psychological disorder or chosen.
Her case on behalf of Kevin and Jennifer introduced influential scientific expert evidence about "brain sex" into Australian common law. It means that the common assumption that genitalia automatically determine if we are a boy or a girl has been overthrown. Rather, as Wallbank puts it, sexual identity is "determined between the ears, and not between the legs".
But there are still many battles to be won. Wallbank likens Kevin and Jennifer's actions to those of Rosa Parks, the woman who sparked the US civil rights movement by refusing to stand for a white man on a bus in Montgomery, Alabama, in 1955.
In the journal Nature in 1995, a team of endocrinologists and sexologists published a landmark paper that established the "brain sex" concept and challenged the gender dysphoria model.
In Kevin and Jennifer's case, two of those experts, Dutch professor Louis Gooren and American professor Milton Diamond, gave evidence accepted by the court that some people are born with a brain that recognises them as a member of the sex opposite to that indicated by their chromosomes, genitals and gonads at birth. This is the proposition the Family Court of Australia recognised, concluding that transsexualism is a biological variation in human sexual formation, rather than a psychological disorder. Transamerica wins Wallbank's praise mostly because of the emotions it shows between Bree and her son, given her experiences with her own son, James. It takes almost the whole film before Bree can declare of her son: "I am his father."
Wallbank, however, says her own sex affirmation as a woman never stopped her being a father. James was five when his Dad "transitioned" from Richard to Rachael. As a little boy, James tried to correct the occasional stranger who referred to Rachael as his mother, telling them she was his father. James's two older sisters, Kate and Rebecca, would try to stop him explaining the whole story.
As her children have grown, Wallbank has been aware that they were obliged to share her difference. Kate is now 23 and Rebecca is 19.
Wallbank thinks they had to mature sooner than their peers. But she does not think they have experienced any significant emotional difficulties as a result of her affirming her identity as a female and as their father. "I loved being a father. I really liked that role, and I still do."
Becoming Rachael, in the mid-'90s, was tough, despite her children's ready acceptance. She had no way of knowing what would be left of her legal practice after her transition. Wallbank, as Richard, recognised she had become dependent on alcohol and would have to stop drinking if she was to survive "transitioning" and managing a new life.
And there were other emotional adjustments. Rachael's mother, Clare, had died two years earlier, and her father, Ed, could not understand what had become of the person he thought of as his son. "I knew he loved me, but he withdrew," Wallbank says.
One day, though, Wallbank's father phoned, and she visited him. Ed gave Wallbank her mother's engagement ring, and said: "I know she'd be as proud of you as the daughter you've become as I am." He died in 1999.
Wallbank has found herself on a spiritual journey her belief in God strengthened when she experienced the rejection, isolation and despair that went with making the decision to transition.
While Wallbank has experienced her sexual identity as fixed, her sexuality or sexual orientation appears more fluid. She loved and was sexually attracted to her wife when they were married but, in transitioning to Rachael, a "light went on", and she became attracted to men. Some might describe this as bisexuality, but Wallbank says she wanted to have a sexual relationship with a man because she could do so with a female body.
Wallbank hopes one day to marry. "I've met some nice guys, but I haven't met the right one yet," she says. "But then, neither have so many of my girlfriends. I've been so busy, too. I'd have to meet someone who so owned his own stuff, and was so sure of his maleness, that he could handle me doing this public reform work."
The estimate of 5000 people with transsexualism in Australia is low, Wallbank says, as an unknown number suffer in silence, harm themselves or take their lives. Even trying to talk to a medical practitioner about such lifelong feelings is fraught with potential rejection and ignorance. "To be seen is sometimes to be destroyed," Wallbank says.
If pop culture is now making a mark alongside internet home pages and blogs by people with transsexualism announcing themselves to the world the law is far from satisfactory in the eyes of many.
A person whose anatomical sex has been "reassigned" or rehabilitated by surgery can get themselves a new birth certificate under NSW or Victorian law. But people who get married first as an opposite-sex couple according to genitalia and then have the same treatment cannot have their legal sex changed unless they get divorced. Otherwise, state authorities believe, same-sex marriage would be effectively sanctioned.
As well, Australian laws differ significantly from state to state, creating "needless inhumane uncertainty and confusion", Wallbank says.
The next big battlefront, as Wallbank sees it, is restoring the rights of children with transsexualism to have medical treatment in their teens. Access was restricted in a 2004 ruling that forced parents to first obtain approval from the Family Court before any treatment started. Wallbank has been acting for the parents of a teenager under 16 in such a case (she declines to give the age).
The parents recently obtained approval for the teenager to receive medication to enable her to postpone the physical effects of puberty while she is assessed for later hormonal treatment at 16. The teenager, "on her own insistence and with medical approval", Wallbank says, has for several years been living as a girl in her everyday life, even though she was born a boy. The 2004 requirement, Wallbank says, has caused considerable delay in treatment.
Copyright © 2006. The Age Company Ltd.
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