The Conceptualisation Of Transsexualism In Matrimonial Proceedings

Introduction

A transsexual is a person whose psychological sex does not match his or her anatomical sex. Many transsexuals therefore undergo an operation to change anatomical sex to rectify this situation. For the purpose of marriage, however, sex is determined by a person’s biological sex at the time of birth [1]. Sex reassignment is therefore not recognised by the matrimonial courts. Consequently a transsexual who has undergone sex reassignment surgery cannot marry a person of the opposite gender identity, as in the eyes of the law both parties are biologically of the same sex and the marriage would therefore be void [2]. Furthermore, to marry someone of the “opposite” biological sex would be inappropriate as both parties would possess the same gender identity, and would appear socially to be of the same sex. This confusion arises as the phenomenon of transsexualism within the province of marriage can be conceptualised in many different ways, and each concept leads to a different conclusion about whether or not transsexuals should be barred from marriage.

In the few cases involving transsexuals the judiciary have adopted a position against transsexualism and this is reflected in the judgments that prohibit transsexuals from marrying. If the family is the “building block of society” and marriage is the foundation of the family, then surely to promote social cohesion it would make sense to allow transsexuals to enter the institution of marriage; unless the judiciary are protecting other interests such as patriarchy. In this paper I apply sociological theories to: (i) identify the legal concepts of transsexualism that are formulated in matrimonial proceedings; (ii) analyse the case law to illustrate how these concepts are used by the courts to exclude transsexuals from marrying; and (iii) explain the reason why the courts maintain this exclusion.

The conceptualisation of transsexualism.

Transsexuals, pragmatically, are denied the right to marry in this country; this is because they are considered to be deviant as they are not fulfilling ‘normal’ social responsibilities. The courts believe that the law has a function in maintaining the present gender roles which define the social responsibilities of men and women. Transsexualism is a deviation from the usual pattern of gender identity development or gender role behaviour and is therefore seen as a threat. Different ways of conceptualising transsexualism lead to different ways in responding to it, and to understand the legal response to transsexualism, each concept has to be analysed in turn to determine which applies. Consequently, an understanding of the legal concept of transsexualism should lead to an explanation of why the courts do not allow transsexuals to enter the institution of marriage.

Transsexualism either exists naturally or has been created socially. Medical scientists claim to have discovered the ‘condition’ of transsexualism and therefore adopt the former essentialist point of view. However, sociologists view transsexualism as a social construction and are more interested in understanding the processes of social control that define this behaviour and these people as deviant and deal with them accordingly. This paper adopts the sociological perspective and examines the way in which the courts have defined transsexualism so as to exclude transsexuals from marrying.

There are two camps in the debate about the conceptualisation of transsexualism. The essentialists, such as the medical scientists, have adopted a view that certain people within society possess or suffer from a condition that determines their behaviour. Transsexualism, in this view, is congenital; it is an essential part of a person’s character; an inherent state of being which needs either management or treatment. On the other side, social constructionists regard transsexualism as an invention rather than as a condition that has been discovered. In this camp transsexualism is not considered as an essence of a person’s character, it is seen as an artificial construction that has been adopted by that person. A constructionist would say that this person is not really a transsexual, he is just playing the part of a transsexual. Constructionism is a conception of transsexualism as something that is not real, something that has been invented. It is a social model in which a person is ‘acting’ the role of a transsexual. Essentialism, on the other hand, is a conception of transsexualism as something that is real, something that has been discovered. It is a medical model in which a person “is” a transsexual. A distinction therefore is made between “being” (essentialist) and “doing” (constructionist).

From his extensive research of sociological studies of sexuality, gender and deviancy, David King (1993) has further divided the conceptualisation of transsexualism. Both the essentialist model and the constructionist model can take two forms depending on whether the behaviour is seen as tenable (desirable or acceptable) or untenable (undesirable or unacceptable). Consequently, combining the issues of essentialism and constructionism with tenability produces four possible models (ibid. p.13):

Table 1: David King’s models of transsexualism.

The orientation model and the condition model both consider transsexualism in biological or psychological terms. The orientation model is favourable, from a transsexual’s point of view, as it assumes the appreciative rather than the correctional stance towards transsexualism. Considered from this perspective transsexualism is a variation of the norm in which transsexuals are seen as different but equal; a state of affairs in which transsexualism is one component in a diversity of acceptable sexual categories. In contrast, the condition model regards transsexualism as an illness that must be treated. The main symptom of this illness is the patient’s claim to belong to the opposite sex. Unlike the orientation model in which the transsexual’s desire to change sex is attributed to the presence of an opposite gender identity, the condition model assumes the presence of some form of psychological disturbance.

Alternatively, the role model and the false consciousness model regard transsexualism as variable and social rather than as biological or psychological. These constructionist models consider transsexualism a social label that can be adopted by anyone, regardless of biological or psychological orientation or condition. The distinction between these two constructionist models is again in the acceptability of the behaviour. Exponents of the role model do not regard the behaviour of transsexuals as something that needs to be controlled, corrected or treated. Indeed transsexualism, in this view, is a socially acceptable identity that has been adopted regardless of orientation or inclination. In contrast, according to the false consciousness model, the transsexual is deluded, mistaken and misguided about his identity. Both models, however, assume that the transsexual is “doing”, as opposed to the essentialist models of orientation and condition that assume the transsexual is “being”. Nevertheless the role model is “doing” something acceptable, whereas the false consciousness model is “doing” something unacceptable.

The legal concept of transsexualism.

David King (1993) has examined the conceptualisation of transsexualism by focusing on different research ‘sites’: the medical, the media, the subcultural and the personal. In this paper I extend this examination and focus on the research site of the law, with particular regard to the legal institution of marriage.

There is no statutory definition of transsexualism or any relevant regulation on the phenomenon; therefore the legal concept has to be interpreted solely from case law. One of the first comprehensive legal examinations of transsexualism was carried out by Ormrod J (as he was then) in Corbett v Corbett (otherwise Ashley) [1971]. This was a petition for a decree of nullity. The case was concerned with the marriage of a male-to-female post-operative transsexual (a successful model called April Ashley) and a man named Arthur Corbett. The question for the court was whether this marriage was void on the ground that the parties were not respectively male and female. Ormrod J heard evidence from nine medical expert witnesses to determine the sex of the transsexual in this case. For the purpose of this paper it is important to analyse Ormrod J’s judgment to determine which of the above perspectives was adopted for his decision.

In his judgment, Ormrod J refers to transsexualism (and indeed transvestism) as sexually deviant behaviour. Moreover, he would probably be more inclined to adopt one of the essentialist models of deviancy considering that he practised medicine before entering the legal profession. Furthermore the only expert evidence presented to him in court was given by members of the medical profession. Therefore a good starting point would be an examination of his concept of transsexualism from an essentialist perspective.

In his summary of the medical evidence, Ormrod J states:

“The transsexual…….has an extremely powerful urge to become a member of the opposite sex to the fullest extent which is possible. They give a history, dating back to early childhood, of seeing themselves as members of the opposite sex which persists in spite of their being brought up normally in their own sex. This goes on until they come to think of themselves as females imprisoned in male bodies…”

The phrase “extremely powerful urge” could be used to explain transsexualism from either an essentialist or a constructionist perspective; therefore this phrase alone gives no indication of Ormrod J’s view. In the next sentence, however, he expresses more of an essentialist perspective by stating that the aetiology of transsexualism is internal, it has developed from within the individual. A constructionist would argue that the “powerful urge” to become a member of the opposite sex comes from outside the individual, that the individual has been influenced by society to adopt the role of transsexual. Ormrod J, however, states that despite the outside influence of being brought up in their own sex, transsexuals see themselves as members of the opposite sex. At this point in his judgment, Ormrod J has therefore adopted an essentialist perspective, which is also indicated elsewhere by his use of medical terminology. Further examination is required, however, to determine whether that perspective is based on the orientation model or the condition model:

“The difficulties under which these people inevitably live result in various psychological conditions such as extreme anxiety and obsessional states. They do not appear to respond favourably to any known form of psychological treatment and, consequently, some serious-minded and responsible doctors are inclining to the view that such operations may provide the only way of relieving the psychological distress……. The purpose of these operations is, of course, to help to relieve the patient’s symptoms and to assist in the management of their disorder,…” (Ormrod J).

This particular statement indicates many orientation characteristics. It stresses “management”, which corresponds with this perspective, in favour of “treatment” as advocated by the condition model. Indeed the possibility of psychological treatment is rejected as unsuitable. Nevertheless the use of the terms “condition”, “distress” and “disorder” would indicate that Ormrod J views transsexualism as an illness rather than an inclination. This is the terminology presented in the bulk of his judgment, which inevitable leads to the conclusion that the condition model has been adopted.

At one point in his judgment, however, Ormrod J slips into the constructionist perspective of the false consciousness model. David King (1993) argues that it is quite common for those who view transsexualism from the condition model to occasionally change their perspective to the false consciousness model, and vice versa. Indeed both models consider the phenomenon of transsexualism as unacceptable. Ormrod J, whose perspective is mainly the condition model, adopts the false consciousness model in his summary of the expert evidence when he states:

“They [transsexuals] are said to be ’selective historians’, tending to stress events which fit in with their ideas and to suppress those which do not…….”

The term “selective historian” is typically used by those viewing deviance from the false consciousness perspective. It indicates that the subject only identifies the parts of his constitution that conform to the role that society has created. The language used by Ormrod J, however, denotes that this is not an opinion that he strongly holds. Indeed, there are no further expressions from a constructionist perspective in his judgment.

The fact that Ormrod J regards transsexualism from the condition perspective leads to his decision that sex reassignment should not be recognised for the purpose of marriage. To acknowledge a transsexual’s sex reassignment from this perspective would be to collude with her illness, and this is not acceptable from the point of view of the law. If Ormrod J had adopted the orientation model of transsexualism it would be perfectly compatible for him to conclude that the sex reassignment should be recognised for the purpose of marriage. This is the perspective of one of the expert witnesses, Dr Armstrong, whose evidence was rejected by Ormrod J.

Dr Armstrong adopts an essentialist perspective but comes to the opposite conclusion to Ormrod J. This is achieved by use of the orientation model in favour of the condition model. In Corbett v Corbett, Ormrod J states that biological sex determines whether a person is a man or a woman for the purpose of marriage. The criteria applied to determine biological sex are: (i) chromosomal sex (the old Olympic Games test); (ii) gonadal sex (testes or ovaries); and (iii) apparent sex (external genitalia). Ormrod J further states that: “It is common ground between all the medical witnesses that the biological sexual constitution of an individual is fixed at birth (at the latest) and cannot be changed either by the natural development of organs of the opposite sex or by medical or surgical means”. Dr Armstrong agrees with the latter part of this analysis but argues that a fundamental aspect of biological sex is the individual’s identification and behaviour. He therefore adds a fourth criterion of “psychological sex” to the test applied in Corbett. Many behavioural or environmental psychologists would argue that psychological sex is subject to the influences of upbringing and nothing more; they would adopt a social constructionist model. Dr Armstrong, however, maintaining his essentialist approach, submits that psychological sex is hormone determined and consequent upon the sex of the brain. He further states that because reproduction is the all important function of life in all species, nature would not leave it to environmental circumstances. Sexual orientation and behaviour are therefore genetically determined in the higher species by sexual differentiation of the brain (Armstrong and Walton, 1990, 1992). This is clearly a rejection of the condition model and is further reinforced by his statement that psychiatry or psychotherapy have nothing to offer these cases as far as any cure is concerned. Dr Armstrong has therefore adopted the orientation model, and what is interesting for the purpose of this paper, is that this perspective leads to the opposite conclusion to that reached in Corbett where the condition model was adopted by Ormrod J. Although both perspectives are essentialist, the orientation model and the condition model produce conflicting decisions. The former engenders a decision in favour of transsexuals, whereas the latter opposes their right to marry as their reassigned sex.

The same pattern arises in an analysis of the constructionist perspectives. In this camp those who view transsexualism from the role model perspective agree that sex reassignment should be recognised in the context of marriage. In contrast the false consciousness model leads to the opposite decision. The judiciary, however, rarely adopt a constructionist approach where gender is in issue; this approach is most commonly found in the academic literature of sociologists, psychologists and anthropologists. For instance David King, a professor of sociology, positions himself into the category of the role model. This is also the perspective of Katherine O’Donovan (1986), a professor of family law, whose analysis of the conceptualisation of transsexualism leads her to question the necessity of gender differentiation in the law. She believes that individuals respond to their experiences of gender in the social world by creating their own gender identity. Gender is therefore socially constructed. Transsexualism, in her view, is a response to the rigidity of gender division in society.

Katherine O’Donovan agrees with Dr Armstrong that transsexuals should be considered as their reassigned sex for the purpose of marriage. However, she has reached her decision from a constructionist perspective, unlike Dr Armstrong whose approach is essentialist. Indeed she opposes the assumptions of biological determinism that are made in the law. Although reaching opposite decisions about transsexuals, Dr Armstrong agrees with Ormrod J that sex is determined biologically before birth. Katherine O’Donovan rejects the argument that the categories of sex are closed. Her objections to this approach are: “that it is based on a false premise, that it is not consonant with modern medical theory, that it is undesirable on the grounds of public policy, and that it is largely unnecessary”(p.18).

Katherine O’Donovan (1986) cites many medical cases that prove that sex is not biologically determined, but is socially created. Research at John Hoskins Hospital shows that there are people who are sexually concordant at birth but differently labelled male or female due to error. These people respond to their experience of gender in the social world by creating their own gender identities; rather than developing as male or female as a result of biology. Katherine O’Donovan believes that if there is a problem with transsexualism it is not with the transsexuals themselves but with law and society’s rigid bifurcated system of gender. This is clearly a view of the situation from the role model perspective. Although the law only recognises two categories of sex or gender, there is in reality a continuum. Consequently each individual appears at some point on that continuum and no individual can therefore be considered deviant; instead each individual is a variant.

What has been illustrated so far is that the issue of whether a transsexual should have the right to marry is not determined by whether an essentialist or constructionist perspective is taken. Indeed, both Dr Armstrong and Ormrod J adopt the essentialist approach but reach opposite conclusions. Whereas Katherine O’Donovan reaches the same conclusion as Dr Armstrong but by adopting a constructionist approach rather than an essentialist approach. This demonstrates that the issue is not determined on the basis of essentialism or constructionism but instead on what David King calls tenability. As stated above tenability is the observer’s acceptability of the phenomenon. Those who find transsexualism unacceptable will adopt either the condition model or the false consciousness model. Conversely, those who think that transsexualism is acceptable will adopt either the orientation model or the role model. This leads to the conclusion that people who find transsexualism unacceptable do not agree that they should have the right to marry; whereas people who think that transsexualism is acceptable believe that they should be able to marry. A difficulty therefore arises in an analysis of Corbett as Ormrod J, who adopts the condition model, does not expressly state that he finds transsexualism unacceptable, but he did rule that transsexuals have no right to marry. Indeed he has used the condition model as a screen to hide the fact that what he is really saying is: “transsexualism is not an acceptable phenomenon, therefore transsexuals should not have the right to marry”.

So far three models of transsexualism have been examined in the context of marriage. The fourth model of false consciousness seems to have made an appearance recently in the case of R v Secretary of State for Social Services, ex parte Hooker [1993]. In his judgment, McCowan LJ does not give too much of an indication of his conceptualisation of transsexualism. However, what little he does say leads to the possibility that he has adopted the false consciousness model. It is rare for the judiciary to approach a decision in a social constructionist manner, therefore closer examination of his judgment is required to determine whether this is correct. In his summary of the facts McCowan LJ states:

“The applicant’s history is as follows: The applicant was born biologically a male on 8th December 1954. The age of the applicant is now, therefore, 38. The applicant married and fathered three children. By 1992, the applicant was living and working in a female role, and against that background, on 30th June 1992, underwent gender reassignment surgery.”

When McCowan LJ says that the applicant was born biologically a male, he presumably means that in an anatomical sense. This appears to be a rejection of Dr Armstrong’s view that psychological sex is biologically determined but is not apparent until later life. McCowan LJ does accept that gender is biologically determined, therefore, if he were to adopt an essentialist approach it would be the condition model. However he refers to the applicant as living and working in a female role. Does this mean that he views transsexualism from the constructionist perspective? It is difficult to express an opinion as the judgment is so short. However the biological determinist approach to gender is not incompatible with the constructionist view of transsexualism, if that constructionist view is the false consciousness model. As stated earlier the false consciousness approach considers the person to be deluded about her transsexualism; that is she is not really a transsexual, she is mistakenly “acting” the role of a transsexual. It is therefore quite conceivable that someone who was born biologically male mistakenly considers himself female. It is suggested that McCowan LJ’s perspective is the false consciousness model.

Table 2: The models of transsexualism and their adherents.

All four models of transsexualism have now been considered. Table 2 (above) illustrates the position of the commentators discussed so far. It is interesting to note that academics appear to the left of the table whereas judges appear to the right. Moreover the judiciary are willing to adopt both the essentialist and the constructionist perspectives, but will only accept the untenable models within those perspectives. The next part of this paper examines what appears to be a shift in the judicial perception of transsexualism from the condition model to the false consciousness model.

A change in perspective from the judiciary?

In 1971 Ormrod J adopted the condition model of transsexualism in the case of Corbett v Corbett. Subsequently in 1993 McCowan LJ seemed to adopt the false consciousness model. Is this a change in direction or is it merely a fluctuation? To answer this question the intervening case of Briscoe v Briscoe [1983] may provide enlightenment. In this case Wood J alternates between the condition model and the false consciousness model. As stated earlier this is not unusual. The case is interesting for the purposes of this paper as it marks the point where the judiciary appear to be changing their view from essentialist to constructionist. A closer examination of this judgment is therefore required to determine whether this is correct. In his summary of the first instance judgment Wood J states:

“The husband…is a transsexual. He has a desire to be a woman; he is more comfortable in a woman’s role and womens’ [sic] clothes; and the situation is now that he intends to become a woman.”

This statement could reflect any of the four models. The desire to be a woman could be a result of either social or biological influence. The same can be said about the fact that this person feels more comfortable in a woman’s role and women’s clothes. There is a clue, however, in the phrase: “he intends to become a woman”. This indicates that he has some choice in the matter and therefore leans more towards a constructionist perspective. Nevertheless this part of the judgment does not determine which model has been adopted.

Throughout the judgment, Wood J refers to the husband’s “problems”. This indicates that he considers transsexualism from an untenable position. Indeed the tenable perspectives of orientation and role model do not consider transsexualism per se as a problem; it is a variation of the norm and the only problems are those that society imposes on it. Wood J’s derisory comments about the husband confirm that he adopts one of the untenable models. However his judgment does not consistently adhere to either the condition model or the false consciousness model. It alternates between models and is consequently a combination of both. Figure 1 (below) illustrates its place in history as the turning point in perspectives.

In January 1996 Brooke J granted a transsexual leave to apply for judicial review of the Registrar of Births’ policy and practice of refusing to amend the birth certificates of transsexuals. [3] At the time of writing this is one of three cases concerning transsexuals that is due to be heard in the courts. These cases will confirm whether the shift from the condition model to the false consciousness model is permanent or just temporary. The interesting aspect of the case of R v Ex parte Rees [1996] is that counsel intend to argue from an orientation perspective:

"As is apparent from the document referred to in my first affidavit Transsexualism: The Current Medical Viewpoint. From a psychiatric point of view the core sense of self is located in the brain and this is responsible for gender identity. For most people gender identity is consistent with sex. For someone suffering from Gender Identity Disorder, however, the self-concept of being a man or a woman is at odds with the subject’s anatomy. The Applicant’s anatomical sex was originally that of a female and his self-concept was and is that of a man.” (Transcript: Queen’s Bench Division, 1996.)

The judiciary have been moving from an essentialist perspective towards a constructionist perspective (see Figure 1 above). The submission in Ex parte Rees, based on biological determinism, will create a situation in which the court may have to return to essentialism to respond to this argument. If this is the case the condition model may have to be dropped in favour of the orientation model, which is the current medical perspective. Consequently the decision in Corbett v Corbett that transsexuals cannot marry as their reassigned sex will have to be distinguished or overruled. Alternatively the court may have to retreat to the false consciousness model to defend its previous decision. This remains to be seen. It is most probable, however, that the court will retain its position with the condition model. The adoption of the false consciousness model in the last case can be explained as a fluctuation, which is characteristic with the approach of the condition model.

The perspective of the European Court of Human Rights.

Three British cases concerning transsexuals have been heard in the European Court of Human Rights. The first case was Rees v UK [1987] in which a female-to-male post operative transsexual argued that the UK’s approach to transsexuals was in breach of Article 8 and Article 12 of the European Convention on Human Rights. The applicant, Mr Rees, submitted that his right to privacy, under Article 8, had been breached by the UK’s refusal to alter the sex on his birth certificate from female to male in recognition of the sex reassignment surgery. Birth certificates are required for various social practices such as applying for a passport for the first time, entering university or some types of employment, or for marriage. Therefore, the applicant argued, that the production of a birth certificate which records his sex as female reveals the discrepancy between his apparent sex and his legal sex thereby causing him embarrassment and humiliation whenever social practices required its production. The European Court, however, decided that there was not a breach of Article 8 as birth certificates in the UK are documents of historical fact and not of present status. The Court upheld the decision of Ormrod J in Corbett that sex is biologically determined at birth. This essentialist approach was also applied to the second issue of whether the UK was in breach of Article 12 -the right to marry. The European Court decided that the Convention protects the traditional marriage of persons of opposite biological sex (which is decided at birth). Therefore Mr Rees cannot marry a woman, as biologically they are of the same sex. It was further decided that the fact that Mr Rees could only marry a man is not a legal impediment.

This approach was also taken in the second case of Cossey v UK [1991], in which UK’s approach to barring transsexuals from marriage was also upheld. However the perspective of the European Court may be moving in a different direction. Whereas the British courts are moving from the condition model to the false consciousness model (or fluctuating between both models), the European Court seems willing to move away from the condition model towards the orientation model. Indeed in Rees v UK and Cossey v UK the President, Mr R Ryssdal, stated that the Court is conscious of the seriousness of the problems facing transsexuals and the distress they suffer, and since the Convention always has to be interpreted and applied in the light of current circumstances, it is important that the need for appropriate legal measures in this area should be kept under review. The Court, however, rejected Dr Armstrong’s evidence that psychological sex is the most important criteria as it determines the individual’s social activities and role in adult life, and that it is predetermined at birth, though not evident until later life. Nevertheless it was made clear that further medical advances may require that the Convention is viewed as protecting the right of transsexuals to marry. This would be a move from the condition model to the orientation model as it is based on medical science (which is essentialist) rather than societal attitudes (which is constructionist).

The third and most recent case to be considered under the European Convention of Human Rights concerning a transsexual is X, Y and Z v UK (1995). This is the only case to rule in favour of a transsexual. However it was not a case concerning the right to marry under Article 12. It was a case concerning the right to family life under Article 8. The applicant X, a female-to-male transsexual was in a stable relationship with Y, a woman. They had a child, Z, by artificial insemination but the Department of Health refused to allow X to be registered on the birth certificate as the father. The European Commission found the UK to be in breach of Article 8 as family life was in issue despite the absence of blood ties, marriage or adoption. As the Commission has accepted the transsexual’s right to family life it gives the impression that one of the tenable models of transsexualism must have been adopted. However the Commission referred to transsexualism as a medical condition which would indicate that the condition model has been adopted in favour of the orientation model; although this is not clear as those who adopt the orientation model sometimes refer to transsexualism as a medical condition.

The legal consequences of the sociological models.

The judgments of the European Court and Commission of Human Rights indicate that if it is going to change perspective it will move from the condition model to the orientation model (see figure 2 below). This is in contrast to the UK courts which only alternate between the untenable models of condition and false consciousness. Although it seems inevitable that the European Court will eventually adopt the orientation model and therefore decide in favour of transsexuals, the decision will still be made from an essentialist perspective. Consequently gender will be considered as biologically determined and the strict gender divisions in law and society will remain, causing continuous problems to people who believe that they are trapped in a body of the wrong sex. Indeed if gender was not strictly divided into the two categories of male and female then transsexuals may not require sex reassignment as they may feel perfectly comfortable in whichever anatomical sex that they were assigned to at birth. However this result can only be achieved by adopting the social constructionist perspective and admitting that gender is invented rather than biologically determined.

The legal consequence of each sociological model appears to be strictly determined (see table 3 below). When either the condition or false consciousness model are adopted a decision against transsexualism results. This is indicated by the cases of Corbett v Corbett, Briscoe v Briscoe and R v Secretary of State, ex parte Hooker in which it was decided that transsexuals are barred from marriage. Conversely when the orientation model or the role model are adopted a result in favour of transsexuals is achieved. Neither of the latter models, however, has been adopted by the judiciary; these models are only adopted by academics or practitioners sympathetic to transsexuals.

Table 3: The legal consequences of each sociological perspective.

Why do the courts adopt a particular model and why does this leads to the result that transsexuals should be barred from marriage?

The most dominant concept of transsexualism is the essentialist perspective of the medical profession. In Corbett Ormrod J heard expert evidence from nine members of the profession. In contrast expert evidence of the social theories of transsexualism was not heard. David King (1993) argues that the essentialist perspective is dominant in society because the medical profession have a vested interest in the medicalisation of deviance and therefore strongly promote transsexualism as a medical condition. Medicine provides the terminology and the scientific explanation of transsexualism, and it also provides the “cure”. Consequently medicine is held in high esteem and new areas of medical practice are created; and the interests of the profession are preserved. Are the courts therefore reflecting the dominant view of society when they adopt the condition model and rule against transsexuals? The view of the public is not known as there has not been any research into their moral attitudes towards transsexualism; therefore the judiciary cannot validly claim that they are reflecting the public’s view, unless they base their assertions on their own perceptions of what the public think. Research has been carried out into the media conceptualisation of transsexualism (King 1993); but is it right that the judiciary should reflect the attitude of the media? It seems unlikely that the attitude of the public and the media have had much impact on the way that the courts have decided issues concerning transsexuals. The most dominant point of view is that of the medical profession and this is clearly reflected in the judgments of the courts. The medical profession’s perspective is essentialist and, of the two essentialist perspectives, the condition model is adopted in favour of the orientation model, which is only advocated by a small minority. Consequently the courts have reflected this attitude and have adopted the condition model. However the judiciary do not always reflect social or moral views in their judgments, sometimes they feel the need to be proactive in promoting social policies. If this is the case then why do they consider that transsexuals should be excluded from the institution of marriage?

Katherine O’Donovan believes that the judiciary are protecting the interests of patriarchy when they decide against transsexuals. She considers transsexuals to be a threat to the accepted conception of gender as they reveal how gender roles are carefully constructed. It is in the interests of a patriarchal state therefore to deny this and, instead, to maintain that gender is biologically determined; as biologically determined gender roles are natural and cannot be changed and therefore patriarchy must be natural and should be maintained. If gender roles are socially constructed, however, the roles are able to change as society changes. Therefore as society becomes more androgynous, so do the gender roles that people adopt.

Does the law have a role in maintaining a system of bifurcated gender identities? If so, one way of achieving this is through its jurisdiction in family matters. Family law and the matrimonial courts reinforce their concept of gender by excluding those who do not conform. Transsexuals, for instance, are portrayed as deviants, and as such are denied the privileges awarded to those who adopt “acceptable” gender roles. Marriage is one such privilege; it is a passport to numerous benefits in tax, welfare, inheritance, immigration and housing. By denying transsexuals the right to marry the matrimonial courts are reinforcing the boundaries of acceptable gender identity. This is an example of what Ann Oakley (1974) calls the ideology of non-interchangeability and role-segregation, which is considered basic to the institution of marriage. This ideology ensures that the main role of a wife is in the private sphere of the home where she will rear children, provide for her husband, and maintain a tidy house; whilst men, on the other hand, can concentrate exclusively on their life in the public arena of employment and politics. Transsexuals undermine the ideology of non-interchangeability and role-segregation by changing gender roles. They expose the falsity of the accepted gender identities and thereby threaten patriarchy, which relies on strict classifications of gender to defend the position of men in society. It seems that the courts may therefore be attempting to defend patriarchy by stigmatising transsexuals in denying them the privileges of marriage. Transsexuals, as stigmatised identities, have little power and influence on society and consequently cannot threaten the accepted categories of gender.

Conclusion

Unless there is a radical change in perspective, the judiciary will continue to view transsexualism from one of the untenable models. As long as this position is adhered to transsexuals will be denied the right to marry. There is a body of opinion that considers the present law governing transsexuals as inhumane. Judges Palm, Fergnal and Pekkanen, giving the second dissenting judgment in Cossey v UK, agree that the only humane approach would be to recognise that after sex reassignment surgery a transsexual has changed sex and should be socially accepted as such. There are an estimated 50,000 transsexuals in the UK, and according to Walton (1992) many have committed suicide as a result of the indignities imposed by the present law. A change in the law, however, is not necessary to improve this situation; all that is required is a change in the perspective of the judiciary.

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• King, D (1993) The Transvestite and the Transsexual (Avebury);
• Muncie, J, Wetherell, M, Dallos, R, Cochrane, A (1995) Understanding the Family (Open University);
• Naldi, G J (1987) ‘No hope for transsexuals?’ New Law Journal 137(6291) 127;
• Oakley, A (1976) Housewife (Pelican);
• O’Donovan, K (1985) Sexual Divisions in Law (Weidenfield & Nicholson);
• O’Donovan, K (1986) ‘Transsexual troubles: the discrepancy between legal and social categories’ in Gender, Sex and the Law, ed. Susan Edwards.
• O’Donovan, K (1993) Family Law Matters (Pluto Press);
• Walton, T (1992) ‘A measure of appreciation’ New Law Journal 142(6566) 1202;

Table of Cases:

• Briscoe v Briscoe (1984) Transcript from Lexis;
• Corbett v Corbett [1971] P 83;
• Cossey v UK [1991] 2 FLR 492;
• R v Ex parte Rees (1996) Transcript from Lexis;
• R v Secretary of State for Social Services, ex parte Hooker (1993) Transcript from Lexis;
• Rees v UK [1987] Family Law 157;
• X, Y and Z v UK (27/6/95) No 21830/93.

Copyright © Antony Mark Noble (1996)
E-mail: 106154.1300@compuserve.com

Footnotes

[1] Corbett v Corbett [1971] P 83.

[2] Section 11(c) of the Matrimonial Causes Act 1973.

[3] R v Ex parte Rees [1996]