Legislating for Transsexual Rights: a prescriptive form
17th May, 1996
Addressing the legislative needs of transsexual people who request legal recognition in their new gender roles is not such a simple and straightforward task as one might imagine. Those states which have legislated are now many and widespread, but the process, of obtaining legal rights for transsexuals worldwide, is by no means complete and the procedures undertaken can often be seen to provide unsatisfactory solutions in the cases of many individuals, because the legislation is either ill thought out, or has not taken into consideration what it is that transsexuals are actually seeking.
Legislation which apparently affords the transsexual recognition is in place in over 40 of the states of the U.S.A, most of Canada, South Australia and 15 of the states which are signatories to the European Convention on Human Rights. Ironically one of the first countries which originally provided such legislation was that bastion of prejudice; South Africa, which legislated in 1974. Furthermore many Eastern block states did provide legislative or civil procedure recognition for transsexuals prior to the fall of the Soviet block, but in the aftermath of the changes in the early 1990’s, legislation often disappeared, and the new regimes are once again having to look at the question. However the legislation that exists has not always provided a satisfactory solution, in particular, in the cases of female to male transsexuals, but for all transsexuals as far as issues of employment protection are concerned.
The United Kingdom’s government is one of the few western states left which has not provided either a legislative, judicial or civil procedure to enable transsexuals to obtain recognition in their new gender role. However the British government is finding itself under increasing pressure from both individuals, and the campaign group ‘Press For Change’, who are demanding that the state not only allows the transsexual’s new status to be recognised for all legal purposes, but that that recognition affords the transsexual full protection from the law in many aspects of their lives. They want protection from discrimination in employment, a recognition for welfare and policy purposes of the new families they form, and for the criminal law to treat them for all purposes as a member of their new gender role.
It is to what the issues are, and what should be considered by a legislative body, in this area, that I wish to draw attention in this essay. Particular reference is given to the United Kingdom, but only in so far as it is my home, and it is here that I find myself campaigning for the law’s change. Nonetheless, the issues themselves are not parochial and will hopefully provide some enlightenment when we consider the protection of any minority group through the law, wherever in the world this is to take place.
Rights and Freedoms
In the United Kingdom there is a common sense assumption that this is "a free country", and we tend to think in terms of freedom rather than freedoms. It has long been considered that a person’s rights and freedoms are safeguarded by there being minimal state intervention in people’s lives, such intervention only taking place after the scrutiny of parliament and its elected representative body: the House of Commons. Protection from corrupt administrative bodies is provided by an independent judiciary. The precept is that an individual’s freedom will only be interfered with in order to protect another’s freedom, and therefore you are free to do what you want to do (or not) (Feldman, 1994: 50).
Axiomatically, freedoms exist in the spaces between statutory or common laws. Every new piece of legislation or judicial precedent erodes these spaces and imposes upon some or all people either restrictions - on what you can do, or duties - what you must do. Thus some particular aspect of personal freedom is reduced.
"Rights" are habitually mentioned alongside freedoms but it is difficult to conceive of freedoms and rights as having some sort of equivalency. Freedoms are aspects of personal liberty which "allow one to xxxxx"; "rights" concern what a person is fairly and justly entitled to "as of right", either as a privilege or through immunity.
Freedoms do not in themselves impose any sort of duty. Duties may be imposed on those who seek to use particular freedoms, but the essential nature of a freedom is that it is autonomous in its action, albeit not in its formation. Thus freedoms may need protection: they are not natural, inborn or inherent; they only exist through their potential restriction. Without law, freedoms would never be named because all human life would automatically be in a state of autonomous (anarchic) "freedom" (a lot of people just ’xxxxx’ing ). In reality, of course, such a situation is totally unthinkable.
The essence of this unthinkability is that freedoms do not actually come into existence without a notion of rights. Whether we are considering, for example, rights to property, or rights to bodily integrity, the "freedom to xxxxx" is embodied in the "right to xxxxx". It is this sense of "rights" that creates law. It is "rights" that allow
the assistance of others in giving effect to one’s autonomous choices [freedoms] (Feldman, 1994: 8)
Rights therefore exist before the law, and so can exist without the law. Current debates on rights generally agree on two broad fronts: firstly, that individuals need protection against the state or government elected by the majority, and that legal or moral rights are a necessary, if not necessarily sufficient, means of ensuring this protection. Secondly, that rights are goods which individuals have or own (Kerruish, 1991: 141).
It is this ownership which makes rights independent of law. The individual is assumed to have "rights" regardless of law, and society looks to creating laws to support and safeguard the freedoms embodied in those rights. Rights are independent of law, and are often seen as having some sort of universality, but as Valerie Kerruish states:
[rights] have a value, like the use-value of commodities, that is value for whoever has the right. (Kerruish, 1991: 199)
In real terms, the use-value of any right will be circumscribed and relative, depending upon the freedom it seeks to protect, and the effectiveness of that protection. As David Feldman asks:
what types of rights are needed to protect whatever sort of freedom is thought to merit protection? (Feldman, 1994: 3)
When considering legislation for transsexual rights, we must consider not only what such rights may be, but also what freedoms lie behind them. We must also consider in what respects the freedoms of individual transsexuals are currently not legally protected. Transsexual Rights It is difficult to conceive of the idea of "Transsexual Rights". The issue of rights for transsexuals, particularly in the United Kingdom, apparently fits in with neither of the two criteria detailed by Kerruish above (1991).
Firstly, there is apparently no need of protection from the government of the day. The United Kingdom government has often gone out of its way (as far it can without changing the status quo concerning marriage laws and birth certificate regulations) to accommodate the needs of transsexuals for new documentation in order to minimise any adverse effects the current legal position may have on their lives.
Secondly, if rights exist through their ownership, then the idea that transsexuals have specific rights because of their status as transsexuals would tautologically destroy any concept of legal recognition of their new gender status. Transsexuals, as far as their relationship with the law is concerned, and as a general rule socially, seek to become "of no concern": to blend in as members of their gendered groupings in society. If special recognition were afforded to them, then their gender reassignment would have been unsuccessful. The whole point is that they become men and women in their new role, not pastiches of men and women.
However if transsexual rights as such are not at issue, what exactly is it that transsexuals are seeking? To discover that we must look at the freedoms that they would like to be protected by law. The freedoms they seek are:
- The freedom not to have to disclose details of their gender role reassignment unnecessarily.
- The freedom to marry a member of the opposite gender.
- The freedom to enjoy a job without fear of dismissal or harassment because of their gender role change.
- The freedom to use the legal process to protect themselves in all aspects of their life in their new gender.
- The freedom to take a parental social role in their new gender.
- The freedom to be acknowledged at death as being a member of their new gender group.
These freedoms are being asked for within the legal limitations that currently exist for the general population of men and women. Thus, though transsexuals are seeking a unique set of freedoms that are related to the process of undergoing gender reassignment or assertion, they are not seeking a new set of rights.
Transsexuals are seeking for the law to acknowledge that they have rights, not as transsexuals, but as men and women who have finally become appropriately recognisable through medical intervention. They are seeking for the law to recognise the gender assertions they have made through seeking reassignment.
This demands a different approach to "Rights Legislation" from that which is conventionally taken. Such legislation often exists as constitutional state documents such as the American Bill of Rights, or as idealised forms of democratic process such as in the United Nations Universal Declaration on Human Rights, or the European Convention on Human Rights.
In the United Kingdom, where the constitution is unwritten, and the European Convention on Human Rights is not a part of domestic law, "rights legislation" has traditionally been undertaken through a "laissez faire" approach. The British public have relied on the good sense of politicians to restrain parliament from introducing legislation which might unduly interfere with people’s rights. However this liberal approach assumes that if people are left as free as possible to pursue their "rights", they will also be enabled to do so. This assumption fails to take account of the indeterminate forces that shape people’s lives. As Kerruish states:
The equality of legal persons inheres in their being conceived as autonomous actors with a capacity to make reasoned choices as to their rights and obligations. The reality of the material inequality of social relations, as well as the actual identities of people living within them is left behind in this abstract representation. Our actual being as members of and agents for classes or groups constituted by social relations, the exploitative, repressive or oppressive character of our basic social relations, and the differences between the range of choices actually available to people occupying different positions in a hierarchical social structure, are thus no part of law’s "truths": not, at least, within this classical form of the laws obligations in contract, property and tort …
(Kerruish, 1991: 196)
The United Kingdom government has at times been forced to recognise the inequalities inherent in society, and the ways in which these limit the freedom of individuals to assert their rights, for example the structure of the welfare state partly came about through this recognition. In the 1960s, this in turn led to the idea that individuals had a right to be free from discrimination on morally irrelevant grounds such as race and sex. Anti-discrimination legislation such The Equal Pay Act 1970, the Sex Discrimination Act 1975 and the Race Relations Acts of 1965 and 1968 takes the form of providing particular protection or rights to groups of people who, as individuals, face discrimination or need protection in various spheres of their life because of their membership in that group.
This traditional approach to enforcing rights and ensuring freedoms would not be of benefit to transsexuals. In order for the transsexual to benefit from such legislation they would be required to make known their reassigned gender status; then potential discriminators would know that they were likely to be breaking the law, and so could avoid such situations. Thus the first freedom mentioned above - not to have to disclose their gender status unnecessarily - would be curtailed.
A legislative approach to transsexual rights must take account of the freedoms transsexuals are seeking through a process of recognition of the gender role they have affirmed. In any attempt to draft such legislation the questions must be:
A Is there an obligation to provide legal recognition to the new gender status of transsexuals? If there is, then:
B How can legislation protect the transsexual’s rights:
- to be legally (and socially) acknowledged for all purposes as a member of their new gender role group?
- to receive protection through the law as a member of the gender group to which they have been reassigned, in all situations where such protection is normally afforded?
C In what way could legislation be drafted to deal with such potentially difficult areas as:
- transsexuals who have parented children in their old gender role?
- whether allowing transsexuals to marry a member of their opposite gender group but of the same natal sex would open the way to same sex marriages?
- the rights of others to have such information, concerning the transsexual’s status change, as is relevant and necessary?
Lessons from other Legislatures
Those states which have legislated to safeguard transsexual rights have taken the path of ensuring that the transsexual will be recognised for all legal purposes in their new gender role from a specific point in time, rather than attempting to safeguard their rights as transsexuals through anti-discrimination legislation
The types of legislation that exist take two basic forms: the first allows the transsexual to be recognised as if their new gender designation existed from the point of birth. The second allows the transsexual to be recognised as if of their new gender designation from a specific point in time after their reassignment treatment has taken place.
The first type of legislation is common in those states which have a common law system and a public birth registration system. The form taken is either issuing a new birth certificate (as in many states of the USA, such as Colorado, Arizona, Delaware, California etc.) or amending the old certificate (as in Indiana, Connecticut and Mississippi) (Sr Mary Elizabeth, 1990: 68-73). An early example of this form is the South African Births, Marriages and Deaths Registration Amendment Act 1974. This short act allows that the:
Secretary may on the recommendation of the Secretary for Health alter, in the birth register of any person who has undergone a change of sex, the description of the sex of such person
(Births, Marriages and Deaths Registration Amendment Act, 1974, S1 ss 1)
The Secretary may call for any medical reports, and instigate any investigation necessary to support this action.
Thus the transsexual will from the point of alteration have a birth registration certificate as if they had always been of their new gender. The male to female transsexual will be as if they had always been a woman, the female to male as if they had always been a man. No conditions are laid down in respect of other aspects of their legal lives; therefore it must be presumed that for pension purposes, retirement, marriage etc. it is as if they always were of their new gender role; therefore such regulations as exist would automatically treat them in the same way as any other man or woman.
The act also allows that
Any alteration of the sex description of a person who has undergone a change of sex, which has been effected in the birth register of such person before the commencement of this Act shall be deemed to have been effected in terms of section 7B of the Births, Marriages and Deaths Registration Act, 1963.
(Births, Marriages and Deaths Registration Amendment Act, 1974, S1 ss 2)
This allows identical status for those transsexuals who had already had their birth certificates altered prior to 1974, under the mechanism previously afforded for mistakes of sex designation at birth. This clause is of particular interest, as some British transsexuals had amendments made to the sex designation on their birth certificates prior to 1968, and those individuals could in this way be accommodated in any new legislation proposed. However this solution would fail to include those people who have undergone reassignment in the period between 1968 and any proposed legislation; unless such alteration of sex designation could be made retrospective, they could find themselves having a life period in which they were legally neither a man nor a woman.
The South African Act has proved to be successful in practice, and those transsexuals who live there have been able successfully to blend into society in their new role.
Various United States and Canadian states have enacted similar bills. For example in British Columbia under the Revised Statutes British Columbia 1974, chap 66, s 21a an unmarried transsexual may apply to have the Director of Vital Statistics
change the sex designation on the registration of birth of such a person in such a manner that the sex designation is consistent with the intended results of the transsexual surgery
(R.S.B.C, 1974, s 21a, ss 1).
The evidential requirements are that either a doctor licensed to practice in Canada certifies that they have performed the surgery; or, where a transsexual has received treatment outside Canada, evidence that the doctor who performed surgery was licensed to practise medicine in that jurisdiction, and a certificate from a doctor licensed to practise in Canada that they have examined the patient and the surgical results are those required by the regulation. However the actual requirements for surgical procedures or results are not detailed at all.
The regulation then provides that:
Every birth certificate issued after the registration of birth is changed shall be issued as if the original registration had been made showing the sex designation as changed under this section
(Vital Statistics Act 1974, s 21a, ss 3).
This, as in the South African Act, creates what some would refer to as a legal fiction - that is, it is as if the transsexual had always been the gender they have now taken. However according to the testimony of many transsexuals and of the doctors who treat them, this "legal fiction" is an appropriate recognition of a psychological and social reality. One needs only to think back to the comment by Harry Benjamin in his introduction to Christine Jorgensen’s autobiography in which he said:
This was a little girl, not a boy (in spite of anatomy) who grew up in this remarkably sound and normal family.
(Jorgenson, 1967: vii)
A very interesting example of this sort of approach is that taken in Alberta, where not only can the birth certificate be changed, but according to the regulations (Revised Statutes Alberta, 1973 chap 384, s.21.1):
if the sex of the person is registered outside Alberta (then the Director shall) transmit to the officer in charge of the registration of births and marriages in the jurisdiction in which the person is registered, a copy of the proof of the change of sex produced to the Director
(RSA, 1973, chap 384, s.21.1, ss 2)
This suggests that a transsexual of any nationality can apply in Alberta to have a change of sex recorded, and can expect the Director to inform the state in which their birth was registered, and can hope that as a result that state will automatically re- register their birth details. No doubt the situation was only meant to apply to Canadian states, but it does provide food for thought.
Other State legislatures have taken the second option: producing an amended birth certificate for the transsexual; the procedures are similar to that which took place in Britain prior to the Statutory Instrument 1968/2049 which amended the 1953 Births and Deaths Registration Act, and the 1971 case of Corbett v Corbett. The same criteria are followed as those adopted in the situations mentioned above: it is not required that a substantive or factual error should have been made; rather, confirmation is sought of the individual’s transsexual status and reassignment treatment.
In states which have a codified legal system (an exception to this is South Australia - see below) the format generally taken is to provide a "recognition certificate" of some sort. German legislation allows for two separate procedures to accommodate the needs of the pre-operative and the post-operative transsexual. The first section of the Transsexual Law TSG (1980) provides that a German citizen, or a homeless foreigner who is stateless, or a foreign refugee or asylum seeker who is resident in Germany, can change their forenames to ones more appropriate to their gender role. The requirements are that they should be at least 25 years old and:
it can be assumed as a great probability that their feelings of belonging to another gender are not going to change (TSG (1980) First Section, SS 1 (ii)).
The transsexual themself brings the procedure to their Regional Court, and the interests of the public are represented through a state appointed legal representative. The transsexual must submit independent reports from two experts in the field of transsexuality, which must confirm that:
according to scientific evidence the applicant is unlikely to change their feeling of belonging to another gender with a high degree of probability
(TSG (1980) First Section, SS 4.4).
Once an order to change the forenames has been made,the transsexual and their relatives are obliged to state only the new names, not the old, for official records and registers.
The applicant can apply later for the decision to be annulled, if at some time in the future they feel that they have made the wrong choice. However this recourse is not available to them if they adopt or have a child after the names have been changed, or if they marry using their new names.
The second section of the act provides for the "establishment of belonging to a sex group". Designed for the post-operative transsexual, this section allows the court to establish that the person can now be considered as belonging to the other sex from that stated in their birth certificate. The requirements are that:
- they are not married
- they are continuously non-reproductive and
- they have undergone an operation to alter their other sexual marks, so that a visible closeness to the appearance of the other sex has been achieved. (TSG (1980) Second Section, SS 8. 1 (ii-iv))
The transsexual must state the forenames they are going to use, and they must produce expert reports to say that the criteria have been met. According to SS 10, from the date of the decision the transsexual is to be regarded as belonging to the other sex; this is final and any rights and duties which depend on sex are to be governed by their new sex.
The TSG (1980) in SS 11 states that parent-child relationships formed before the gender change will not be affected, so the transsexual will still be their parent’s son or daughter as they were before for legal purposes. They would also remain as a father or mother as they were before of any children born or adopted before the decision is made final, and lines of inheritance due to sex will not be affected. SS 12 ensures that existing pension rights and other benefits will be untouched and this includes the rights of a former spouse to pension benefits.
As far as the birth certificate is concerned, only government offices and the transsexual concerned may have access to the birth register. The transsexual may also be issued with a personal status certificate.
Similarly, in other states which have followed the German model, such as Quebec (which unlike other Canadian States has a system modelled on the French codified law) (Revised Statutes Quebec, chap 10, s 16-22), the transsexual becomes of their new gender at a specific point in time, generally after surgery. Their life in their former gender remains intact.
In the South Australian legislation, the provisions for transsexuals are included with the provisions to alter the sex of a child who has undergone some medical intervention to clarify their sex status (Sexual Reassignment Act (1988)). The act provides that a recognition certificate can be issued for an adult who has undergone reassignment treatment in South Australia, or for an adult who was born in South Australia. Unusually, the act requires that an adult must have "received proper counselling in relation to his or her sexual identity" (Sexual Reassignment Act (1980), Part III, S 8, ss iii), or in the case of a child that the "magistrate is satisfied that it is in the best interest of the child that the certificate be issued" (Sexual Reassignment Act (1980), Part III, S 7 , ss 9.b).
Such a certificate is conclusive evidence that a person has undergone reassignment and is now of the sex stated in the certificate, and it will allow the Registrar of Births to register the reassignment of sex. This procedure is the same as an amendment rather than a re-issue of the certificate.
However, although the registrar can issue a copy from the register showing the new sex, it cannot be used for legal purposes in another place unless the laws of that place expressly allow it and the relevant authorities are informed of the reassignment of sex (Sexual Reassignment Act (1980), Part III, S 9 , ss 4). Because of this, the transsexual cannot get married in another state where the marriage would not be recognised because of their transsexual status.
The South Australian legislation also provides regulation for those hospitals and doctors providing reassignment treatment (Sexual Reassignment Act (1980), Part II). The requirements are that they must be licensed under the Act, and that transsexuals who seek a recognition certificate must have undergone assessment at a licensed clinic, even if they have obtained treatment elsewhere.
Legislation now exists in many states to support transsexuals as they seek a change in their civil status and a recognition of their rights in their new gender role.
Legislation for the Transsexual
In considering appropriate legislation in any state, we must not only consider the freedoms that the transsexual wishes to gain, but also political expediency, potential areas of difficulty, and administrative cost. These three will all have a bearing upon whether a bill is likely to receive support from the parliamentary body of a state.
Any proposed legislation must be:
- concise and simple in both its format and its effect.
- as non-contentious as possible, and be able to call upon all-party support.
- there must be little space for interpretation.
- it must safeguard as many potential interests as possible.
A Legal Obligation?
Referring back to the questions originally suggested: firstly is there an obligation to provide legal recognition of the new gender status of transsexuals? Many commentators such as Feldman (1994), Walton (1992) and Taitz (1988) would consider that there is, but even if no obligation exists as such, many governments will sooner or later face a defeat either in their own or other courts because of the persistence of transsexuals themselves as they become more educated about their lack of civil rights in their new gender role. For example the UK government is currently facing challenges in the European Court of Human Rights, the European Court of Justice and its own courts.
In the meantime media and hence public sympathy is increasingly on the side of the transsexual; therefore the ever rising cost of defending such litigation will increasingly be judged to be improvident. Legislation seems the manifestly simple resolution to this predicament.
The Functions of any Proposed Legislation
If we consider the protections that need to be afforded to the transsexual, the legislation must enable them, at the very least, to be acknowledged as a member of their new gender role group. This can be done by either: allowing a new birth certificate to be registered which gives the new sex of the transsexual or: by amending the old certificate and issuing a certificate similar to that used in adoptions, which gives the new details.
Alternatively a certificate of recognition of their new sex could be provided. However this is likely to be unsatisfactory, as it would tend to mark transsexuals out as different and could soon become little more than an identity card and a signifier for many authorities that the individual concerned had undergone gender reassignment.
If a legal acknowledgement is made, then the question is whether it should provide retrospective legal protection or merely provide protection from some point after reassignment has taken place. Issuing a new birth certificate would allow the protection to be retrospective; amending the old certificate would not.
A new certificate would thus be preferably for those transsexuals who have been living for a long period in their new gender role but who have not to date been afforded such legal recognition, as this would give them the right in law to challenge those decisions which have been detrimental to them because of their gender change. Politically, though, this could be disastrous, as it could open a floodgate of: claims for compensation for such things as unfair dismissal; judicial review of administrative decisions; and pension and insurance reviews. And who knows how many marriages would suddenly fail to have existed?
Therefore the best solution seems to be to allow some an amendment followed by an "adoption style" certificate for public use.
On Whose Authority and With What Requirements?
The next question must be on whose authority will a change of gender be recognised. Most Acts require the transsexual to provide evidence from a medical source that reassignment treatment has taken place. But the legislation does not demand any particular sort of surgical procedure or hormone therapy. For example the German legislation requests that the transsexual has
undergone an operation to alter their other sexual marks, so that a visible closeness to the appearance of the other sex has been achieved.
(TSG (1980) Second Section, SS 8. 1(iv))
but it does not specify that the operation be penectomy and vaginoplasty, or hysterectomy and phalloplasty. There are good reasons for following this sort of approach: for example, not all transsexuals have sufficiently good health to undergo repeated major surgery, yet they live successfully in their new role; also genital surgery for the female to male transsexual still produces very poor results. To require genitals to be reconstructed could be a path to mutilation for some, and possibly a death sentence for others.
However, in Germany and Ontario in particular, the requirement in the legislation that some surgery is undergone has led to questions in the Courts concerning to what extent surgical reassignment has taken place particularly in the case of female to male transsexuals. Michael Wills mentions the case of OLG Zweibruken (1992), concerning a female to male transsexual, which asks whether in order to achieve what the law calls a "clear approximation" to the opposite sex, will a bi-lateral mastectomy be sufficient, or is genital surgery which includes vaginal occlusion and phalloplasty required? The case has been decided in two lower courts in favour of the female to male transsexual applicant, but again the State representative has appealed (Wills, 1993).
In two Canadian cases; C(L) v C(C) (1992) and B. v A. (1990), female to male transsexuals were held not to be spouses/husbands for the purposes of marriage and family law, if the only surgery they had undergone was a bilateral mastectomy and a hysterectomy. The Courts, both in Ontario, followed the doctrine in Corbett v Corbett (1970). In B v A (1990), the parties had lived together for 20 years, and on that basis had applied for a motion of financial support. Though the female to male transsexual had had birth records changed from female to male, the courts held that the requirements for surgery of the Registrar General were not the same as those required to decide if a relationship was one of husband and wife. The failure to undergo genital surgery on the part of a ftm transsexual would mean that he continued to be female and hence could not marry another female. C(L) v C(C) (1992) followed this line of thinking, and it was held that the marriage the two parties had undergone was a nullity, and was void ab initio.
It seems that any surgical requirement will produce this sort of difficulty. In particular, in Britain, where surgical techniques to produce a phallus are extremely poor, it would seem an absurdity to require female to male transsexuals to undergo such surgery in order to obtain legal recognition, whereas their male to female counterparts would generally have less of a problem in meeting such stringent requirements. Therefore the sensible solution would be merely to require appropriate and recommended medical treatment to have been undergone. This would leave the decision as to exactly what sort of reassignment treatment was carried out in the hands of the transsexual and their doctors, who are best placed to decide what is advisable for the individual concerned.
Licensing Clinics?
It is sensible to use medical "experts" to provide the necessary evidence for supporting legal recognition; however one must be careful of two possible dangers. Firstly, if one insists, as in the South Australian Act, that clinics or medical practitioners undergo some sort of licensing, then the transsexual will be restricted as to sources of treatment. There are today, "Gender- Identity Clinics", in England controlled by psychiatrists who are out of touch with current practice and thinking in the field, as well as those which provide excellent treatment. I do not see how someone without an extensive and close knowledge of the field could judge the competence of a clinic, and those who could, would be loathe to criticise one of their few colleagues in such a small field.
The second danger is that treatment prices could rise rapidly, as licensed clinics turn to private sector provision. Many transsexuals, for whom work is difficult to obtain, and who are therefore not well off financially, could find themselves having to travel long distances regularly to licensed clinics when in fact much of their treatment could be provided through their local district health structure. Patient choice could prevent a closed shop situation.
Licensing therefore does not seem desirable, but an independent opinion is still needed as regards the transsexual’s medical condition. If one wished to provide more direction than that contained in the South African Act (i.e. a general provision allowing a call for information and any medical reports), the solution would be to call for two or more independent medical reports, which must also be independent of each other. Alternatively one could appoint the duty to an already existing body, such as the independent tribunals who assess individuals for invalidity benefit.
Form and Protection of Other Parties
Protection must be provided for children, whether biological or adoptive, parented by the transsexual prior to gender reassignment. These children need to have their inheritance rights under intestacy law, and other possible claims (such as for maintenance) protected. Ex-spouses’ claims, such as for maintenance, should be protected. The detail provided in the German and South African Acts could provide a model here.
The Right To Marry Legislation must also consider the politically difficult question of inadvertently opening the way to same sex marriages. In the UK, where homosexual activities are still illegal for men under 18, same sex marriages are very low on any political agenda. Any legislation must appear to prevent opening a back door route to this. As heterosexual marriage is possible from the age of 16, a reassigned transsexual could, potentially, have publicly legitimated a relationship that would be illegal if they had not undergone reassignment. This anomaly could be avoided by allowing recognition of a new gender role only after a certain age, for example 18 or 21.
Nonetheless it must be accepted that legitimating transsexual marriage would certainly provide good ammunition for the "same sex marriage" lobby. One way in which legislatures have resolved this is by necessitating that extensive medical treatment has been undertaken, and that the transsexual who seeks legal recognition is for all purposes infertile, or completely incapable of reproduction (see below). Such demanding requirements would certainly preclude the faint hearted or the "political games player".
The Requirement of Sterility
The issue of sterility has arisen in German case law, in a case concerning a female to male transsexual who had undergone a bilateral mastectomy, but who because of a motor accident was unwilling to undergo any further hormone treatment or surgery. The German TSG (1981) requires that the transsexual be "completely non-reproductive" and this has a bearing on the discussion as to what surgery an applicant for the major solution (ie. change of sex designation) must have undergone. The Courts granted a name change with no problem, but would not allow the change of sex designation because regular menstruation showed that the applicant was still fertile. However in obiter, the courts held that a reversible interruption of the fallopian tubes might be sufficient, because a ftm would be very unlikely to seek such a reversal (Wills, 1993). Wills, like many commentators, takes the view that
"sterility must be absolutely certain and permanent" (Wills, 1993: 10)
but he does not explain his reasoning: it is presented as a "common sense" assumption.
This sort of assumption does beg certain questions. It seems almost obsessional to demand that the transsexual is infertile. In reality, in most cases, hormone therapy will almost certainly have rendered the transsexual infertile at the point where they might be considered to have sufficient commitment to their new role. However some transsexuals, for health reasons, cannot take the high hormone levels normally prescribed nor can they necessarily undergo extensive surgery. Should they be denied recognition? It is a difficult question to answer, but it must be stated that the requirement of sterility smacks of eugenics, and begs us to ask who else do we require sterilisation from before we allow them full citizenship before the law. Furthermore, I think, it is an issue that will increasingly be put on the agenda by transsexual people themselves.
A Right To Know
Finally, any bill must take into consideration those others who might have a "right" to know of the change in the transsexual’s status in order to allow them to safeguard their own freedoms or those of the state, yet at the same time provide some sort of penalty if those people misuse the knowledge to which they have a privileged access.
Conclusion: A Draft Bill
…(law) fails to understand that alienated identities are creative only in a struggle for a sense of self and other that challenges the conditions of that alienation
(Kerruish, 1991: 199)
Any bill must try to take into consideration all the issues discussed above without becoming too complex or controversial. It must attempt to recognise transsexuals’ rights to be the men and women they are, and to enable them to enjoy those rights so that they may also take on the mantle of responsibilities that full citizenship brings. At the same time it needs to address policy needs and administrative costs and to gain political will.
Bibliography
- Feldman, D. (1994) Civil Liberties and Human Rights in England and Wales, Oxford: Oxford University Press
- Jorgensen, C. (1963) A Personal Autobiography, New York: Eriksson Inc.
- Kerruish, V. (1991) Jurisprudence as Ideology, London: Routledge
- Mary Elizabeth, Sr. (1990) Legal Aspects of Transsexualism, Massachusetts: IFGE
- Taitz, J. (1988) A Transsexual’s Nightmare: The Determination of Sexual Identity in English Law, International Journal of Law and the Family, 2, pp 139-154
- Walton, T. (1992) A Measure of Appreciation, New Law Journal, Vol 142, No 6566, 4th September, p 1202
- Wills, M.R. (1993) Legal Conditions Of Sex Reassignment By Medical Intervention - Situation In Comparative Law, Amsterdam: paper presented at the XXIIIrd Colloquay on European Law of the Council Of Europe.
Cases
- B v A (1990) 29 R.F.L. (3d) 258
- C(L) v C(C) (1992) Ont. C.J. Lexis 1518
- Corbett v Corbett (1970) 2 All E.R. 33, 48; (1970) 2 W.L.R. 1306 - 1324
- OLG Zweibruken (1992) 47-53
Statutes
- Births, Marriages and Deaths Registration Amendment Act, 1974. South Africa’s Government Gazette, 16th October, 1974 No.4440 3: South Africa
- Births and Deaths Registration Act 1953
- Legislation regarding the change of forenames and the establishment of the belonging to a sex group (Transsexual Law TSG) 10th September 1980: Germany
- Registration of Births, Death and Marriages Regulations, Statutory Instrument 1968/2049, 1968
- Revised Statutes Alberta, 1980, chap 384, s 21.1: Alberta
- Revised Statutes British Columbia, 1974, chap 66, s 21a, Eliz.2, 5034-5034-1,: British Columbia
- Revised Statutes Quebec, 1979, chap 10, s.16-22: Quebec
- Sexual Reassignment Act, 1988, No 49: South Australia
