XVII Harry Benjamin International Gender Dysphoria Association Symposium
31 October - 4 November 2001, Galveston, Texas, U.S.A.

Analysis of Transgender Jurisprudence

SHARPE, ANDREW Australia
E-mail: asharpe@law.law.mq.edu.au

An analysis of transgender jurisprudence reveals a number of narrative tropes. This paper will consider one, homophobia. While the theme of homophobia is a consistent one within transgender jurisprudence, generally it appears most visibly in cases concerned with marriage, the prime institution of heterosexuality. Judith Butler has suggested that "it is important to retrace the different routes by which the unthinkability of homosexuality is being constituted time and again." In suggesting that transgender jurisprudence represents one such "route", the article will consider the landmark English decision of Corbett v Corbett where post-operative transgender sex claims were denied for marriage purposes, and the New Jersey decision of MT v JT and the New Zealand decisions of M v M and Attorney-General v Otahuhu Family Court where such claims were recognized in the marriage context. While the three latter decisions might, in contrast to Corbett, be comprehended in terms of liberal law reform, this article will highlight the ways in which homophobia serves to link all four decisions. This is to say, judicial anxiety over proximity to the homosexual body proves to be a common theme. We will see that this anxiety manifests itself in terms of inquiry into pre-operative sexual practice, transgender desire, gender performance, heterosexual capacity and bodily aesthetics. Accordingly, the paper points to the need to rethink the terms of law reform.