Saturday, April 12, 2008

Transgender: Male pregnant, the legal implications. Who will be the mother?

Transgender: Male pregnant? The legal implications, what determines our sex? Are you a male or female?
This case has raised many questions amongst midwives, nurses and student midwives and student nurses. Midwives particularly have asked how do we as midwives care for a pregnant male? My answer to this question is; the same as everyone else that is pregnant. Biologically this male (Thomas) from the waist down is still a female that is there is still the reproductive organs present, however Thomas Beatie presents as a male. I appreciate the visual experience will be very different for the midwives caring for Thomas, however you are still with woman biologically and psychologically a male. This may well be an obstetric case due to the complex psychological issues and differing hormone levels that may present some issues during the pregnancy. I have not heard whether this will be a caesarean section or vaginal birth.
Definition: Transgender: “A broad term used to describe people who transgress conventional gender boundaries, such as transsexuals and transvestites”

This has prompted me to look a little more deeply into the issues of transgender, homosexuality, heterosexuality and the law.
As you are aware Australian law is based on English law, and the US has a different law system. However cases of precedence are used within all legal systems as basis for argument.
All Australian states and territories have enacted legislation that renders discrimination related to sexual orientation unlawful. There have been several landmark cases relating to transgender issues and they are continually changing transgender law reforms. The first being Corbett v Corbett [1970] 2 AII ER 33. This case looked at a male to female (April Ashely) transgender who had sex reassignment procedures; her husband (Corbett) wanted an annulment of his marriage. The legal question required was to determine the sex of April. It was held in this case that “sex is determined at birth’ and by resemblance of chromosomal, gonadal and genital factors. Therefore the biological make up of April was that of a male person. This decision was greatly criticised within legal circles and remained the basis of many decisions over the years throughout the common law world. Views started to change in the late 70’s and 80’s where there was a shift from biological to functionality. The case that rejected Corbett was Re Anonymous , in this case a male-to-female transgender person wanted the birth certificate amended to reflect surgical intervention. It was argued that applicant was female because her anatomy had been brought into conformity with her psychological sex. Thus now creating the ‘psychological and anatomical harmony test’. This case drew a clear distinction between that body and pre or non-surgical transgender bodies.
Most of the cases I reviewed were male-to-female and they concentrated on the desire to remove the offending organs (there genital) in order to have a normal heterosexual relationship. Harris and Mcguiness (R v Harris and McGuiness [1989] 17 NSWLR 158 at 320) are two other cases were the male-to-female applicants want to receive the pension at 60 as a female and not 65 as a male. These cases discussed that anatomy must be the overriding factor in sex determination if “overwhelmingly contrary to the assumed sex role”. The case decided that to be female, it was also important that the female sex role can be properly fulfilled with the right anatomical parts, specifically a vagina, which implies there must be penetrative sex. This case upheld for the purposes of Social Security a male-to-female post-operative transgender person was a woman. I am not sure what sex (functioning vagina) has to do with getting a pension?
This was a direct quote from Richards v united States Tennis Association: (A tennis player case of a male-to-female)
“Transsexuals are not homosexual. Thy consider themselves to be members of the opposite sex burdened with the wrong sexual apparatus. They desire the removal of this apparatus and further surgical assistance in order that they may enter into heterosexual relationships.”
Another interesting direct quote from the Federal Court of Australia in Secretary, Department of Social Security v SRA. [1993] 118 ALR 467.
“The female-to-male transsexual is probably in a rather different situation because even successful surgery cannot cause him to be a fully functional male, although he can be given the appearance of male genitals.” [1993] 118 ALR 493

It is interesting reading around the subject of how the law determines gender issues. I can not help to think that this really is a man’s world. As I was reading this subject, it seems that for men to become women is considered easy all you need is a functioning vagina post-surgical, well not easy but it can be done without to much fuss. However for a woman to become a man, heaven forbid that is considered complex and why, that is because the penis is a complex organ and difficult to replicate, well surgery cannot cause him to have a fully functioning erectile penis. This goes back to gender issues the dichotomy of active/passive sexual roles.
Later cases have moved further, in that now even functionality, that is you do not need a functioning vagina to prove you have changed your sex, however I am still unsure about the penis.

Moving back to our pregnant man –Oregon’s laws are very different to Australia and a person can have there sex legally changed by producing a letter from a doctor to say they have had some surgery to change there sexual orientation. The law does not define surgical procedure or require you to say what was changed. Oregon has approximately 10 transgender legal sex changes a year.

Thomas Beatie underwent a double mastectomy and started testosterone injections 10 years ago but kept her reproductive organs.
I believe that Thomas Beatie is still a woman because she failed to have a hysterectomy as she wanted to have a baby, therefore would not meet the ‘psychological & anatomical harmony test’. That is all well and good, each to there own, but it is a far cry from saying we have a pregnant man. I have yet to hear or meet a biological male that has a vagina and uterus.

Some questions to ponder on and discuss:

1. The woman who delivers the baby is considered the legal mother until the baby is adopted or another legal proceeding has occured. What will happen in this case if Thomas has changed his birth certificate to say he is a man?

2. What are the psychological and physiological issues surrounding the production of milk for breastfeeding?

3. Is taking more male hormones going to affect the fetus?
4. Is the child’s’ sexuality going to be affected?
5. Is this a new way of making money? Selling your story?
6. Is this the Brave new world gone mad?

Sharpe, Andrew. 2001. From Functionality to Aesthetics: the Architecture of Transgender Jurisprudence. E Law. Murdoch University Electronic Journal of Law.
Concise Australian Legal Dictionary. 3rd edition. 2004. p431.

1 comment:

Sarah Stewart said...

I think the whole thing is fascinating. I really enjoyed the Oprah interview-Thomas came over as being a lovely guy.

What I would worry about is the effect of all the media attention on the baby growing up.

Save Homebirth

Home Birth Australia