Thinking Outside of the Box: Gender Trouble in Australia and the Netherlands

On 13 September Human Rights Watch released the report Controlling Bodies, Denying Identities: Human Rights Violations Against Trans People in the Netherlands in which they argue that article 28 of the Dutch Civil Code violates the human rights of transgender people. According to Human Rights Watch, article 28 of the Dutch Civil Code does so because it requires transgender people to take hormones, undergo surgery and to be permanently and irreversibly sterilised before they can have their gender recognised on official legal documents.

A similar issue concerning gender identity and legal documentation became apparent in Australia in 2010 when the Sydney Morning Herald published an article about the then 48-year-old Norrie May-Welby from Sydney. Born with male sexual characteristics, May-Welby underwent hormone treatments and surgery for twenty-five years to be able to live a life as a woman, but now wanted to go through life genderless. Although the state New South Wales provided May-Welby with documentation that granted her this status, the local authorities later claimed that they could only issue documents that mention gender as being male or female.May-Welbie decided to put forward a complaint to the Human Rights Commission of the United Nations.

Issues around gender identity also got more recent attention in the Australian media. In an article on 2 September in The Age it was described how a transgender woman was ‘attacked while in a motorised wheelchair and hit about 70 times with a garden spade’. The Herald Sun of 12 September featured an article in which it was described how a 6-year-old boy and his 12-year-old sister were removed from the care of a lesbian foster couple because they dressed the boy in girls clothes after which, according to the Herald Sun, ‘the humiliating pictures were posted on the couple’s Facebook page.’ The events described in the first article constitute a clear case of violence against a transgender person. Things are seemingly more complicated in the case of the two children being removed from their lesbian foster couple, as the article mentions reports of mental and physical abuse at the hands of the parents. Of course any form of mental and physical and mental abuse against children is a horrible act, and we don’t know the entire story here, but as a commenter on the Herald Sun website adequately noted: “6 year olds love dressing up – I cant see what is so humiliating – I am not getting any sense of how the child was humiliated. 6 year olds wear spiderman outfits to Coles, wear capes to bistros, get their faces painted as lions and tigers and bears at fetes and festivals – so I am thinking this article is just an another senseless and bigoted attack on same sex relationships.”

It is clear that a lot of work still needs to be done on recognising the right of transgender people, both in Australia and in the Netherlands.

Within the debate about sex and gender, opposite sides are taken by the social constructivists and the biological determinists. Those belonging to the former camp argue that the distinction between sex and gender is socially defined, the biological determinists are of the opinion that only biological factors underlie gender classification. One of the best known advocates of the social constructivist view on gender was the sexologist John Money. He was known for his publications about David Reimer who was born in 1965 along with his identical twin brother. David Reimer was removed from his family and raised as a girl after he lost his penis when a circumcision surgery procedure went wrong. John Money supervised the case and reported positively about the gender transfer, using Reimer’s case as evidence that gender identity is primarily taught. The sexologist Milton Diamond, who advocates a biologically deterministic view, reported in 1997 that Reimer never identified himself as female and that at the age of fourteen he decided to go through life as a man.

In more recent times more nuances can be found in the gender debate which means that cultural and biological factors are no longer considered to be be mutually exclusive. The following quote from the article ‘Who put the “Trans” in Transgender? Gender theory and everyday life’ illustrates the combination of the two visions, in which the emphasis however still lies on the cultural aspect:“[…] roles, experiences and gender characteristics were socially defined and culturally varied. However, biological features were considered to be given by nature. We argue that the biological is as much a construction as the social is. Although hormones, chromosomes, gonads, and genitals, are real parts of the body, seeing them as dichotomous and essential to being male or female is a social construction.”

It could be argued that the advantage of the biologically deterministic aspect is that individuals can be examined in order to determine whether they differ from the majority of the population. Besides the question whether this is ethical, the results of research, such as the balance in hormones, would ultimately have to be analysed on the basis of standards that people use. Although mean values of female and male hormone levels can be identified, the deviations, the descriptions thereof and particularly the resulting common standards, have a social constructivist character. Having both male and female sexual characteristics can indeed be empirically verified and bodies can be put to all kinds of tests, the question whether can be spoken about an abnormality, an exception or a body that is part of a continuum rather than a dichotomy remains a matter of social constructivism with normative outcomes as a result.

The problem in the case of Norrie May-Welby and that of article 28 of the Dutch Civil Code is twofold: on the one hand individuals like May-Welby do not identify with the sexual characteristics with which they are born, while on the other hand the bureaucratic system in New South Wales and the Netherlands have difficulty categorising individuals that experience these feelings. From a strictly biologically deterministic perspective it can be argued that the inability to identify with either of the sexes has a biological cause, which for example could mean that development of the brains and body has been different in some individuals opposed to the majority of people. From a strictly social constructivist perspective it can be argued that individuals cannot identify with the strict female or male gender identity because the socially constructed dichotomy between man and woman does not allow for individuals to linger outside these categories. From the middle ground perspective, with the emphasis on a social constructivist view, it can be argued that due to both social and cultural factors in childhood an individual fails to internalise a male or female gender identity. From a middle ground perspective that emphasises biological phenomena it can be said that variations in the brains are to blame for the fact that some cannot identify as male or female, with the possibility that cultural and social factors may have served as a catalyst for these feelings.

There are different ways to interpret the New South Wales government refusing to issue a genderless identification document and the fact that the Dutch Civil Code requiring transgenders to undergo surgery before they can have their gender legally recognised. Governments, as well as the documentation regarding identity, are created by human actors and can therefore be described as a social construct. On the other hand it can be argued that although both are social constructs, they only serve as tools to institutionalise biological data. However, this does not mean that governments do not have the power to provide a person with a document that indicates that a person is genderless or has changed gender identity; they do. Governments therefore have the power to change the definition of gender. Consequently, in approaching the issues regarding Norrie May-Welby’s identity documentation and article 28 of the Dutch Civil Code, a social constructivist view seems more useful. Governments, identity documents as well as Civil Codes are social constructs of which the definitions can be altered by human intervention. The criteria in the cases of identity documents are based on biological data but do not have to be. The criteria derive their validity, based on biological data or not, from the normative interpretation by those who use the criteria.

Critics would question whether it should be possible to legally change ones gender from one day to next, and perhaps question whether changing gender should be possible at all. It should be noted however that the stage in which transgender people take hormones, undergo surgery and are permanently and irreversibly sterilised is preceded by an long period in which individuals with the desire to change gender are monitored intensively by a wide range of professionals; it is in no way possible to legally change gender tomorrow should you decide you want to do so today. Besides the question whether it should be possible to have legal documentation that mentions a genderless state, in comparison with the intense scrutiny that precedes the physical change, and they severity of the physical change itself, changing gender legally seems to be a relatively small step in the process.

Critics and governments should start thinking outside of the box, as gender is comprised of more than simply ticking a box that says male or female.

On 15 September Foreign Minister Kevin Rudd and Attorney-General Robert McClelland announced new guidelines which make it easier for sex and gender diverse people to get a passport in their preferred gender. Under the guidelines, sex reassignment surgery will no longer be a prerequisite to issue a passport in a person’s preferred gender. The Netherlands also intends to change a law that puts restrictions on transgender people who try to register their new gender on official documents, the government announced the same day Human Rights Watch issued a report critical of the statute. Junior Justice and Security Minister Fred Teeven will send the draft legislation to legal advisers on Wednesday before presenting it to the Cabinet. Lawmakers will ultimately have to vote on any change.

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