1st Edition
Law, Gender Identity, and the Brain Exploring Brain-Sex Theories in Judicial Decisions on Trans and Intersex Minors
This book challenges law’s reliance on neurology’s brain-sex binary.
The brain has become the latest candidate in a historical search for a reliable and fixed biological marker of ‘true sex’ that has permeated every aspect of Western culture, including law. As definitions of the sexed and gendered body have become ever more contentious, the development and dissemination of brain-sex theories have come to dominate popular understanding of LGBTI+ identities. But, this book argues, the brain is no more helpful than earlier biological measures in ensuring just outcomes. Examining how law determines and differentiates ‘male’ and ‘female’ in two contested areas of sexed identity –through a discussion of Australian cases authorising medical interventions to alter the embodied sex characteristics of transgender minors and intersex minors –the book demonstrates an incoherence in the legal understanding of gender identity development. As the brain too fails as a convincing biological anchor for the binary sex categories of male and female, law must, it is argued, retreat from its aspiration to create, define, and regulate artificially bounded sex categories of male and female.
This book will be of great interest to scholars and students in a range of disciplines who are working at the intersection of law, gender, and sexuality.
Acknowledgements ix
1 Introduction 1
Introduction 1
Legal Focus: Why These Cases? 2
Structure 4
Terminology 7
Comparing Trans and Intersex Issues 11
Critiquing Biomedical Research 14
Conclusion 15
Reference List 16
Articles/Books/Reports 16
Cases 17
Legislation 17
Other 17
2 Sex, Gender, and Gender Identity 18
Introduction 18
Biological Determinism 19
The Sex/Gender Distinction 21
Current Clashes 23
Examining the Sex/Gender Gap 30
Embodiment and Feminism 32
Static Biology and Dynamic Culture 33
The Search for ‘True Sex’ in the Body 37
The Move From a One-Sex to a Two-Sex Body 37
Finding Sex in the Hermaphroditic Body 38
Conclusion 50
Reference List 51
Articles/Books/Reports 51
Cases 55
Other 55
3 Brain-Sex Binary Theories 57
Introduction 57
Brain Sex and Gender Identity 59
What is Gender Identity? 61
Brain-Sex Binary and Brain Organisation Theories 70
Sex Differences in the Brain 77
Introduction 77
Brain Plasticity 78
Inconsistencies and False-Positive Findings 82
The Resilience of Stereotypes 85
Research on Animals 88
Understanding Difference 89
Neuroculture and the Cerebral Subject 93
Conclusion 95
Reference List 96
Articles/Books/Reports 96
Cases 103
Other 103
4 Intersex Variations 104
Introduction 104
What is Intersex? 106
Intersex and Medicalisation 110
DSD Protocols 111
Gender Identity 113
Introduction 113
Optimal Gender Theory and Practice 116
Congenital Adrenal Hyperplasia 121
Intersex Variations That Impact on Fetal Androgens 123
Androgen Insensitivity Syndrome 126
Conclusion 127
Current Medical Practices 129
Introduction 129
Genital Surgery 133
‘Once and for All’ Treatments 143
Sterilisation 144
Medical Intervention and Gender Identity 148
Conclusion 152
Reference List 153
Articles/Books/Reports 153
Cases 159
Legislation 159
Other 159
5 Transgender in the Australian Family Court 161
Introduction 161
Legal Framework: Consent 163
Special Medical Jurisdiction 164
Coercive Sterilisation Cases 167
Marion’s Case 167
Gender Identity and Gender Dysphoria 170
Medical Approaches to Trans Identity in Minors 174
The ‘Born This Way’ Narrative 178
Re Alex 180
Competing Theories of Trans 181
Treatment: Therapeutic or Non-Therapeutic? 183
Re Jamie 186
Treatment: Therapeutic or Non-Therapeutic? 186
Gender Dysphoria and Neurology 188
Re Kelvin 189
New Medical Evidence or Ideological Shifts? 191
Conclusion 195
Reference List 196
Articles/Books/Reports 196
Cases 200
Legislation 201
Other 201
6 Intersex in the Australian Family Court 203
Introduction 203
The Principles and Values From Marion’s Case 204
Intersex and Gender Identity 208
The Cases 211
Re A (A Child) 211
Re Lesley 213
Re Sally 216
Re Dylan 219
Re Carla 219
Re Kaitlin 222
Conclusions on Judicial Attitudes to Gender Identity 223
Fertility 225
Judicial Process 228
Conclusion 230
Reference List 232
Articles/Books/Reports 232
Cases 234
Other 235
7 Conclusion 236
Reference List 242
Articles/Books/Reports 242
Cases 242
Index 243
Biography
Aileen Kennedy is a Post-Doctoral Research Fellow in the Faculty of Law at the University of Technology, Sydney and the Chair of Intersex Human Rights Australia.
