THE PROBLEMATIC JUDICIAL VIEW OF GENDER DIVERSITY

Abstract

This response to Ashleigh Bagshaw’s article in this volume entitled ‘Exploring the Implications of Gender Identification for Transgender People under Australian Law’ seeks to humanise the experiences that sit behind the judicial determination of gender recognition in case law. It argues that there is room for considerable improvement in the understanding that legal decision makers have about the lived experiences of gender independent people. The article begins in Part I by clarifying the distinction between sex and gender and points out that neither concept is binary. Part II explains some persistent problems with the judicial approach to the question of gender identity and tells the stories of the humans behind the cases. It concludes that the pathologised approach to gender independence places unnecessary obstacles in the way of people who could benefit from legal recognition of their gender identity.