Fairfax, VA, USA. In Ovid’s fable, Teiresias was walking along Mount Cithaeron when he came upon two snakes mating. Being a guy, he poked at the mating pair, inadvertently killing the female snake. The gods immediately transformed Teiresias into a young woman.

She lived as a woman for seven years, having babies and all that, before she again came upon two mating snakes. Being a woman, this time she left the snakes alone and went about her business.

Seeing this, the gods immediately transformed Teiresias back into a man. [N1]

How the gods did this is unknown.

But we do have some idea how the law would like to do it.

A Western Australia court has ruled that two Female to Male (FtM) pre-op transsexuals are, in fact, still women in the eyes of Australian law. [N2] The legislation gives the state Gender Reassignment Board the authority to issue a certificate when a person transitions from one sex to the other and that is the catch.

The two FtM pre-ops had their breasts removed and were taking testosterone, but neither of them intends to have a full hysterectomy, have their vulvas altered into a male configuration, or have phalloplasty to construct a male looking penis. Both retained the ability to bear children given the right circumstances.

The court based its decision on the FtM pre-ops lack of male lack of male genital and reproductive physical characteristics and their decision to retain their female reproductive organs.

Tabloid headlines proclaiming

Pregnant Man To Have Baby

are not in Australia’s future.

And I can’t say I disagree with the court’s decision. Women have babies, men do not.

The material facts of the case are not in contention:

Each of AB and AH [N3] have adopted male appearances and identities. They are generally referred to by others using masculine forms of the various pronouns. [N4]

AB underwent female to male gender reassignment and is diagnosed as gender dysphoric. Testosterone therapy began in 2004 with all the subsequent physical changes. In 2005, he underwent a bilateral mastectomy.

AB commenced testosterone therapy in May 2004, and maintains testosterone levels within a normal male range by the self-administration of regular injections. AB underwent a bilateral mastectomy in July 2005. He had decided against a hysterectomy because

AB has decided against undergoing a hysterectomy at this time. His reasons for that decision were that

He is not conscious of his internal organs and that his internal organs has no bearing on his identity as a male and caused him no distress; he has suffered adverse effects of surgery in the past and wished to avoid further surgery if possible; he does not wish to undergo surgery that is not medically necessary; and, he cannot afford the time off work that would be necessary for the surgery and recovery.

He does not presently intend to undergo phalloplasty in order to construct a penis, because he has been advised that the procedure carries substantial risks and has limited prospects of success.

AH also is diagnosed as gender dysphoric and commenced testosterone therapy in 2006. In June 2007, AH underwent a bilateral mastectomy. He has decided against undergoing a hysterectomy because, like AB, he does not wish to undergo surgery which he considers to be unnecessary. AH stated that he is unable to see his internal organs and that unlike his breasts, which have been removed,

he is not aware of the presence of his internal organs, meaning that he does not consider it necessary for his mental wellbeing to undergo a hysterectomy.

AH has a similar attitude as AB towards undergoing phalloplasty. While he has given consideration to that course, he does not propose to undergo the procedure at this time, given his advice that medical technology is unable to achieve a satisfactory outcome.

Sounds to me like both of them have memorized the party line.

Counsel for each of AB and AH conceded that

aside from the clitoral growth each experienced, and the effect which testosterone treatment has had upon menstruation and reproductive capacity, their female genitalia, including the vulva, vagina and other internal organs are unaffected.

The court ruled that there must be some objective, public available criteria by which gender reassignment can be assessed. Any criteria should produce a reasonably clear answer.

Parties proposing to enter into a marriage relationship need to know whether their marriage will be valid. Other people need to know whether a marriage was valid.

The Australian law defines “gender characteristics” as those physical characteristics by virtue of which a person is identified as male or female. The court determined that the central question was

whether each appellant had the physical characteristics by which a person is identified as male. Expressed in this way, the focus of the issue is upon the acquisition of male characteristics, not the retention of female characteristics.

There must be an adequate degree of certainty. Otherwise, the applicability of the law to an individual suffering from gender identity disorder would be in a state of complete confusion The Australian law, in the definition of 'gender characteristics', establishes that there are physical characteristics by virtue of which a person is identified as male and physical characteristics by virtue of which a person is identified as female.

Neither AB nor AH possesses any of the genital and reproductive characteristics of a male. Both retain virtually all of the external genital characteristics and internal reproductive organs of a female.

They would not be identified, according to accepted community standards and expectations, as members of the male gender.

Put succinctly, both of them fail the naked body in the locker room test. The court explained:

The questions of fact and degree inherent in determining whether a person has the external physical characteristics by virtue of which a person is identified as male or female indicate that, apart from the person's genitals, it is unnecessary that an applicant for a recognition certificate have undergone a medical or surgical procedure (or a combination of such procedures) for the alteration of each and every other physical characteristic. [N5]

The sexual binary divides at the physical possession of penis or a vagina. A pole or a hole. Males have penises, females have vaginas.

It’s the physical universe’s rule of thumb.

If you are woman born transsexual, you have sex reassignment surgery to alter your penis and scrotum into a vulva and a vagina. If you are a man born transsexual, you have sex reassignment surgery to remove your breasts and alter your vulva and vagina into a penis and a scrotum.

That the current state of FtM sex reassignment surgery is significantly less than perfect is an unfortunate fact of life. But imperfect surgery did not stop fifty years of MtF transsexuals from undergoing the surgeon’s knife. We sacrificed our bodies to improve our doctors’ techniques.

A lot of us were afraid of surgery. There is always the chance something will go wrong.

But we controlled our fears and did what was needed to make ourselves whole.

The court’s logic, despite the attacks from Academic Gender Theorists and Transgender Action Groups, is sound.

The Sexual Binary exists.

If you don’t believe that, prove the court and biology wrong – but make sure you use good testable science and not sociology and socialist theory to prove your point.

Oh, and make sure your findings can pass the locker room test.

Ms. Lisa Jain Thompson is a Co-Founder & Principal of TS-Si. She also serves as a Contributing Editor and columnist for the TS-Si website. She maintains another site, StarPoet.com, for her poetry and literary works.

Ms. Thompson's signed articles contain her own opinions and do not necessarily convey an official position of TS-Si, its partners, or affiliates. Lisa welcomes your comments. Use the form below or email via her TS-Si Contact Page. We will not divulge any personal details or place you on a mailing list without your permission.

The TS-Si News Service is a collaborative effort by TS-Si.org editors, contributors, and corresponding institutions. Sources can include the cited individuals and organizations, as well as TS-Si.org staff contributions. Articles and news reports do not necessarily convey official positions of TS-Si, its partners, or affiliates. We welcome your comments. Use the form below to leave a public comment or send private correspondence via the TS-Si Contact Page. We will not divulge any personal details or place you on a mailing list without your permission.


TS-Si is dedicated to the acceptance, medical treatment, and legal protection of individuals correcting the misalignment of their brains and their anatomical sex, while supporting their transition into society as hormonally reconstituted and surgically corrected citizens.

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