The fight over reproductive rights keeps dragging on in the United States, but in Australia, hot-button issues like abortion and contraception are rarely a subject for public debate. In Australia, instead, a new front in the fight has opened for a new group – transgendered men. Two recent test cases in New South Wales and Western Australia have seen three trans men fight for the right to be legally male without being sterilized.
In both states, transgendered people of both sexes are allowed to change the sex on their birth certificates after they have had genital surgery (commonly known as SRS, Sexual Reassignment Surgery). Further evidence from GPs, endocrinologists, and psychiatrists are also required. This status quo has meant the compulsory sterilization of all transgendered people wishing to change their documents.
Estrogen permanently sterilizes transgendered women fairly early in the hormonal transition process. However while it is being taken, testosterone freezes but does not permanently remove the ability of a trans man to conceive a child. It is only SRS which permanently sterilizes a trans man.
Any trans man who remains on his hormones, therefore, is unable to bear a child, however, as with the high profile case of Thomas Beattie in the US, if he stops taking his hormones for an extended amount of time he will become potentially fertile. It is this possibility that alarms lawmakers, for as George Tannin SC said in the West Australian government’s appeal last November:
“The ability to bear children is plainly not a gender characteristic of a male. The retention of such an ability must necessarily result in the applicant not possessing the gender characteristics of a male.”
Bear in mind that the men in both cases have already had double masectomies to remove their breasts. For Conor Montgomery, the man pursuing the lawsuit in New South Wales, another surgery would be potentially life-threatening. Even though the likelihood of any trans person stopping their hormones is remote, what is at stake, legally, is the distant possibility of trans men conceiving. In other words, NSW and WA wish to remove trans men’s capacity to bear children.
Unsurprisingly, the men in both cases have decided that their mandatory sterilization should not be required to change their birth certificates. As Conor Montgomery told the Sydney Morning Herald, “we are a small percentage of the population, but I think it’s inhumane to force anyone into sterilization. Does it make me more of a man? I don’t think it does.”
This movement amongst trans men to change their documents without undergoing surgery has broader applications for Australian transgendered people in those states. The current system requires pre or non SRS trans people on hormones to retain the wrong legal sex, effectively outing them as transgendered every time they present a driver’s license, birth certificate, and so on—a requirement which has implications from health care to employment.
In Western Australia, transgendered people are not protected by anti-discrimination laws, and in New South Wales, only “recognized” (that is, post-operative, document changed) trans people have legal protection. So while the State’s criteria is based on genital normalization, trans people in their everyday lives are negotiating the world with documents that do not match their gender presentation, and hence are at risk of discrimination and even potential violence.
So the fight for reproductive justice for trans men is, in effect, a fight for more than the right to bear children. It is a fight for the right to bear children and live safely as a men, to not have their rights and security held hostage to institutional demands to normalize their genitals. If successful, it could potentially help both trans men and women change their documents without the need for expensive, painful and very occasionally risky surgery.
In Western Australia, the two trans men are fighting a clearly reticent government, having fought and won once only for the government to appeal. What is clear is that Australian transgendered people are fighting for nothing less than the right for bodily integrity, and it is a battle that is far from over.