‘Sex’ and ‘gender’…same thing, right? Wrong.

These words have different semantic meanings which is important to understand. ‘Sex’ is about one’s biological makeup. That is, their chromosomes, gonads and genitalia. So penis = male, and vagina = female. So what about intersex people?

‘Gender’ on the other hand is often used to refer to the societal response to, perception of and interaction of an individual. Masculine and feminine. This is where societal norms and cultures come into play. But let’s not open the can of worms of societal gendered roles today eh, save it for another blog post.

For most of us, our sex predetermines our gender; they align. And perhaps for intersex people gender is the driving force. But for some, their sex and gender don’t align. This was explored in detail in the recent case of Re Jamie (2013) FamCAFC 110 (appeal from Re Jamie (Special Medical Procedure) FamCA 248). We’ll call it “Jamie’s case”.

Jamie is 11 years old and is biologically male. She wears ‘girls clothing, uses the girls toilets and has long, blonde hair. She identifies as being female and has done so since she was three years old. Her parents are supportive of this, as are her doctors who have diagnosed Jamie with childhood gender identity disorder. And so the conversation about hormone treatment comes about. Jamie’s doctors and both parents were of the view that hormone therapy, which happens in two stages, would be the best cause of “treatment” for Jamie.

So if everyone’s on board, why the court case?

In short, there are certain circumstances where parents cannot make decisions on behalf of or for their children. The circumstances that arose in Jamie’s case are one such example. In cases like Jamie’s case, the big question for the Courts has been to consider how wide the ambit of parental responsibility is when it comes to kids undergoing serious medical procedures.

The Judges in Jamie’s case, in summary, followed the decision made in the earlier High Court case of Marion’s case:[1]

  • If a child has a sufficient understanding and intelligence to enable him or her to understand fully the medical procedure or treatment then they can consent to that procedure or treatment. This is known as Gillick competence (from an 80’s case about teenage girls wanting to take the then very controversial contraception pill) and it’s up to the Court to decide whether a child is Gillick competent or not.
  • If a child isn’t Gillick competent, then their parents must provide that consent for them. BUT parents can’t consent to medical procedures which are:
    • Invasive, permanent and irreversible; and
    • Not for the purpose of curing a malfunction or disease.

The Court in Jamie’s case also clarified that malfunctions and diseases are not limited to those of organs but also include psychological and psychiatric disorders, such as childhood gender identity disorder.

Whether Jamie was Gillick competent or not wasn’t specifically addressed in the case. In any event, the outcome of the case meant practically for Jamie’s parents is that they could consent to Jamie undergoing ‘Stage 1’ puberty suppressant hormone treatment because it was reversible and therapeutic. What they couldn’t consent to was ‘Stage 2’ of the hormone therapy which was additional treatment of oestrogen which would result in Jamie developing breasts amongst other things. Only Jamie or the Court could consent to this.

  • Can a male to female transsexual marry another female?
  • What of the male to female transsexual who is convicted of a crime and sent to prison? In which single sex prison should she be held, what are the repercussions of the chosen prison?
  • What of the female to male transsexual who wants to retire? In Australia the age of retirement is the same, but in many other countries it’s not.
  • What of the transsexual athlete who competes in the women’s division but is biologically male? Does this put the other athletes at a disadvantage? Should she be forced to compete in the men’s division? Could her testosterone levels have any say in this?

Some food for thought. And many questions to address in a later blog!

Iveta Bales

[1] Marion’s case involved an application to the Court for the sterilization of a 14 year old girl with a severe intellectual disability.