Gemeinschaftsfremden -- or how to be shafted by your friends
Sterilisation requirements and legal status recognition for the Transsexual
17th May, 1996
The 1990s have seen increasing calls from Transsexual people, throughout the world, for legal recognition of their gender status in their new role. In the United Kingdom this campaign, being led by the transsexual lobby group Press For Change, has led to the formation of a cross-party Parliamentary Forum which, along with other issues, is seeking to formulate and draft suitable legislation to provide for this recognition.
In the consultation process legislation from other states was considered to see which could provide suitable models for any such Bill. Amongst the questions that then arose was whether the transsexual person who is seeking legal recognition (i.e. birth certificate amendment and all the rights and protections associated with being recognised as a member of their new gender group) should be certified as being sterile at the point of recognition.
The issue originated because the legislation from several jurisdictions including Germany, Sweden, Holland and some North American states requires this to be certified as a matter of course before a legal change of ‘sex’ or ‘gender’ will be allowed. For example the German legislation (TSG) provides a ‘minor’ solution (a change of forename), and a ‘major’ solution (a change of sex designation). For the major solution the legislation requires that the transsexual person is :
continuously non-reproductive.
(TSG (1980) Second Section, SS 8. 1 (iii)).
Similarly Swedish law requires that an applicant for a legal recognition to effect a change of sex must:
have been sterilised or at least incapable of procreating
(Lag om andring i lagen (1972: 119) S 2)
The question then ensued as to why these provisions exists.
In the initial draft of the Private Members Bill which was to be presented by Alex Carlile QC, MP on the 2nd February 1996 before the United Kingdom parliament a similar provision was initially included, but after a discussion prompted by the ‘Press For Change’ members of the Parliamentary Forum, it was removed. They argued that, in reality, most transsexual people will be medically sterile as a result of their treatment and surgical reassignment, so to talk of a sterile post-operative transsexual person is a tautology. However on a very rudimentary level, one question asked by the transsexual members of the forum was ‘who else has to be sterilised before they are recognised by the state and allowed to take up their full legal rights and responsibilities?’.
Yet at the 1993 XXIIIrd Colloquy on European Law which concerned ‘Transsexualism, Medicine and The Law’, Professor Michael Wills of the University of Berne, who writes extensively on European Law and transsexualism, and who was a rapporteur (expert ‘witness’) to the Colloquy took the view that:
sterility [of the transsexual person] must be absolutely certain and permanent
(Wills in Council Of Europe 1993, p 88)
before a full recognition of gender change is afforded in law, but he does not explain his reasoning: it is presented as a natural "common sense" assumption. A common sense assumption that appears to be prevalent in any legal discussion in this area by those who are not actually members of the transsexual community. It also seems that it is a common sense assumption made by medical practitioners who are providers of gender reassignment treatment. Indeed one psychiatric clinician who is head of a Gender Identity in the north of England insists that female to male transsexuals undergo a total hysterectomy before they are allowed to commence hormone therapy to masculinize their secondary sex characteristics. This means that his patients have to undergo the irreversible before the reversible stages of the treatment, presumably this clinician is so certain of his diagnostic procedures that mistakes are never made! At the 1993 Colloquy, itself, no fewer than 4 rapporteurs mentioned the sterility requirement without ‘batting an eye’ (Wills, Hage, Delvaux, Doek in Council of Europe, 1993).
This assumption; that the transsexual person should be sterile before legal recognition, does beg certain questions. On one level it seems almost obsessional on the part of legislators to demand that the transsexual person is infertile. In reality, in almost all cases, after a few years, the hormone therapy undertaken by transsexual people will certainly have rendered them infertile (albeit it not necessarily permanently, that generally takes longer). Thus they will be to all practical purposes incapable of reproduction at that time when they might be considered to have sufficient commitment to their new role for any legal recognition of a status change. If they undergo genital reconstructive surgery they will certainly be permanently unable to procreate.
There are, though, some transsexual people who for health reasons cannot take the high hormone levels normally prescribed nor can they necessarily undergo extensive surgery. Should they then by virtue of being unable to be rendered permanently sterile be denied recognition? Furthermore for female to male transsexuals even if they are physical able, should they be forced into at least undergoing a hysterectomy, which is a major surgical procedure and will involve some high level of risk, in order to qualify for a legal ‘sex change’. The surgical procedure in itself is performed for no therapeutic reason in terms of physical health, often it is not even of psychological benefit as all signs of menstruation will have ceased very early in any testosterone based hormone regime. Or, to take the issue further, should they have to undergo genital surgery to occlude the vagina and possible create a phallus. Occlusion of the vagina can lead to a loss of sexual sensation and the creation of a phallus is notoriously difficult and none of the techniques developed to date meet the ideal requirements (Hage in Council Of Europe, 1995, p 107). The German legislation requires that there is a ‘clear approximation to the phenotype of the desired sex’ alongside the sterility requirement. Does this mean that individuals should be obliged to undergo specific surgical procedures and their associated health risks before they will be recognised by the law as the social man or woman they are.
These requirements for sterility and specific surgical procedures, in fact, beg many questions. Not only should we be concerned with the medico-legal discourse surrounding the transsexual body as this provides enlightenment as to the ways in which particular bodies are constructed and controlled by the state, but it throws light on the particular eugenics and mental hygiene discourses that still surround deviant bodies today.
The eugenics movement, built on Galton’s principle of enhancing a biological group on the basis of alleged hereditary merit which was very much grounded in Social Darwinism, was a powerful force well into the 20th century. All too often seen, nowadays, as a thing of the past which resulted in either a series of monumental policy mistakes, as in the United States Supreme Court Decision in Buck v Bell (1925) in which it was held that ‘three generations of imbeciles are enough’, or the practical embodiment of extreme racism as in the Nazi sterilisation programmes of the 1930s and 1940s, the eugenics movement may have apparently disappeared but in reality the principles live on. David Smith (1994) argues that eugenics continues to influence attitudes and behaviour toward people who are perceived to be nonproductive or defective. One example of the persistence of eugenic thought is to be found in the publications of a special interest group of the Mensa Society. Furthermore, worldwide, the court decisions concerning the non-consensual sterilisation of the intellectually disabled may talk about the ‘basic right to reproduce’ but that apparently becomes irrelevant when considering the best interests of such women (Little, 1992) and such best interests are of course defined and delineated by ‘qualified experts’. Qualified experts means, of course, medical experts.
Medical experts, as both scientists and physicians have, in fact, had a long and dishonourable history in the field of eugenics. Whether involved in the huge racial cleansing operation that would progress from the sterilisation of the ‘hereditarily sick’ to the far-reaching holocaust of the Nazi death camps, or whether taking the more gradual approach of the mental hygienists of North America and Australia with their intelligence testing programmes to diagnose the ‘feeble minded’ and their schemes of segregation or sterilisation for the ‘unfit’, they have helped to create a ‘common discourse on degeneracy and the role of both hereditary and environment in the production of ‘deficiency’ (Garton, 1994, p 181). For much of the 20th century, the practice of sterilization was a common accompaniment to institutionalization for individuals with mental retardation. Following the decision in Buck v. Bell, the eugenics movement promoted mass forced sterilization and the segregation of the ‘feeble minded’ members of society, numerous American states passed legislation and, consequently, over 60,000 individuals with mental retardation were non-consensually sterilized in the USA in this century (Smith, 1993). The movement recreated the legal, social and ethical environment of those who were seen as different or less than human. As Rafter(1992) explains no longer did science (eugenics) go through a claims making process, which was then endorsed so creating a response, rather the claims are made, the response follows and this provides the endorsement.
Throughout the western world and up until the 1960s, the sexuality of people of racial and social difference was handled by denial and suppression in order to control their reproduction (Kempton, Kahn, 1991). The ‘deficient’ body became the origin of deviance and the site of control. As Rafter states the early eugenics campaigns
constituted a very early attempt to criminalise not an action, but the body itself
(Rafter, 1992, p 17).
In this way the body is the social problem in itself, and the solution to social problems is to prevent their (re)production by ensuring the body can no longer produce. The relationship between the state, science and the individual was irrevocably changed through early eugenics. This paradigm shift may have been questioned, in terms of practice, but it has by no means dissipated as we approach the next century. Furthermore the controversies surrounding theoretical eugenics are still very much with us, as could be seen with the publication of the book, The Bell Curve (Hernnstein and Murray, 1994), the withdrawal from publication of Edinburgh University’s Christopher Brand’s book (Ofori, 1996), and the criticisms of the Pioneer Fund funding of American and European Academics (ABC News, 1994) (Irish Times, 1994).
Indeed the discourse of the ‘hereditarily deficient’, is still extremely powerful to this day. For example, in May 1995, China introduced a law promoting the sterilisation of people suffering from genetic disorders. The original bill was heavily rewritten following an international outcry in 1993, and the words ‘eugenics’ and ‘inferior births’ were dropped from the text. Yet the law stipulates that couples must postpone marriage if either of them is suffering from a sexually transmitted disease or a mental disorder. Further, if either partner is diagnosed as having a ‘serious genetic disorder’ then marriage will only be allowed if they both agree to long term contraception or surgical sterilisation (Agence France Press, 1995). The law was always intended as ‘social engineering’, Li Ben being reported as saying:
all of China’s family-planning policies—mandating late marriages, restricting families to one child—have been "aimed at improving China’s population both in quantity and quality."
(Maier, 1995)
Eugenics have not disappeared, in fact they might be said to have become a background to many social discussions. Whether looking at the family planning threads within the 1994 Cairo World Conference on Population and Development, or at the social theories of Charles Murray (Murray, 1990) it has to be admitted that they bear reminders of some of the theoretical underpinning devised and promoted by eugenics movements throughout history. Negative eugenics (which are being discussed here as opposed to positive eugenics) is fundamentally concerned with the control of reproduction to reinforce certain societal groups above others. In turn this was adapted by the mental hygiene movement, and led to a movement concerned with controlling who could become a parent (the right to parenthood) and the ways in which parenting was to be practised.
Transsexual people may seem to have more to worry about than their right to reproduce. Though it is by no means a large number, a significant number of jurisdictions now provide judicial or legislative solutions for the transsexual people in their midst. Of those countries that replied to a recent survey, nineteen made some sort of provision, and fourteen of these provided a system which would allow the transsexual citizen become a member of their new gender role for all purposes, and in such a way that their past role was kept, adequately, secret (Whittle, 1995). These, along with the European Court of Justice decision in P v S and Cornwall County Council (1996), in which it has been held that it is sex discrimination within the meaning of Council Directive 76/207/EEC to discriminate against a transsexual person within employment, mean that there is an increasing move to afford them many of the rights in law that they are asking for. Yet as these problem areas are gradually surmounted, the agenda is being widened to include other issues, that are seen as fundamental human rights by members of the community. Furthermore, the community has in itself undergone great changes in the last 6 years (Whittle in Ekins and King, 1996), and many of these changes of self identification, alongside new reproductive technologies, have led to the possibility of procreation no longer being excluded from the post-reassignment transsexual person, and transsexual parenthood, albeit not genetic, is certainly on the agenda, as witnessed by the case of X., Y. and Z. v The United Kingdom which is currently before the European Court of Human Rights (ECHR).
These issues cannot be viewed in isolation, the common sense discourses that surround the drafting of any legislation relating to these people are informed by eugenic principles. They are concerned with the idea that some people are less worthy people than others, and because they are lesser people (and by that I man ‘less human’) they have less of a right to reproduce, to become a parent, and to practice parenting. Transsexual people have a lifetime of experience of being less worthy people, not just because of their social status, but because the law for many years has not regarded them as fully human as other people of their gender grouping.
Lesser people - the transgendered movement
Transsexualism is currently being redefined to come under an umbrella term Transgenderism. In that sense the transsexual person becomes a sub-group member of a larger group. That larger group is no longer medically defined (Whittle, 1996), and hence body form is less prescriptive and more flexible, so enabling the physiology for procreation to be retained. There are a variety of reasons for this redefining. Included in the relevant ones for this discussion is the worldwide burgeoning cost of private medical treatment, and in the United Kingdom the disputes surrounding increasing medical provision ‘rationing’ within the National Health Service. Secondly, the failure of current legal provisions that do exist to afford transsexual people the support in law for many aspects of their lives, especially in the areas of relationship recognition and employment. Thirdly the development of new paradigms about gender itself. Whether a social construction or a biological imperative, the community is re-theorising gender issues around performativity of gender status rather than systematic processing.
Firstly the strong transsexual activist movement in the U.S.A. has had to come to terms with the fact that as medical costs spiral, and medicaid and other insurance schemes will not finance gender reassignment surgical procedures there are many self identified transsexual people who are living their lives as members of their opposite natal sex designated grouping, without taking up surgical sex reassignment procedures. This is of particular relevance to the men in the community - for whom phalloplasty procedures cost in the region of $100,000. A penis is not an option for the average transsexual man, he has to learn to live as a man with a vagina. Within the United Kingdom local Health Authorities are increasingly refusing to fund gender reassignment treatment, arguing that it is a treatment similar to cosmetic vanity surgery, and the activist group Press For Change is increasingly being approached by transsexual people seeking advice after such refusals (Press For Change, 1995, p 5). The increasing refusal by Health Authorities to fund gender reassignment treatment has become a second nature response in the resource rationing process. This has a ‘feed back’ effect in that Health Authorities also refuse to fund referrals to Gender Identity Clinics or suitable experienced psychiatrists, and they refuse to fund hormone therapy. The argument being that if a person starts treatment, then once either a diagnosis has been made, or the irreversible effects of hormone therapy have been achieved then Health Authorities would be morally committed to finish it. Because transsexual people are viewed as ‘less worthy’ then it becomes easy for refusal to become institutionalised.
In the United Kingdom, transsexual people are increasingly having to resort to privately funded treatment and surgery which is expensive. Again for the transsexual man genital surgery, in particular, is prohibitively expensive - but in the United Kingdom it is also not actually available as such, except in a form which amounts to little more than undertaking to have yourself crippled for life. Many transsexual people are finding themselves either resorting to ‘sex work’ to fund reassignment, and pre-reassignment surgery transsexual women are highly desired commodities as ‘she-males’ in the pornography and prostitution industries, or the individual has learn to live without reassignment. This is resulting in a growth in the numbers who choose to live in their gender role, but without anything more than privately funded hormone therapy. The community has had to redefine its own definitions of what it means to be a transsexual person; from a 1980’s view that it was someone who sought reassignment surgery, to a self-identification category based on mental rather than body morphology.
Secondly transsexual activists in the U.S.A. have had to face up to the issue of being in a country where apparently they have obtained legal rights yet this is contradicted throughout their life experience. In most states birth certificates along with other documentation can be changed with the minimum of fuss, and marriage between transsexual people and members of their opposite sex grouping are legal - yet these are dependant upon surgical requirements being met and so poorer members of the community are excluded from access to legal recognition of their lived lives, and the relationships they form are barred from being legally recognised, protected and afforded the privileges that marriage brings. Furthermore, despite legal recognition, in the USA to date, no court has found Title VII of the 1965 Civil Rights Act applicable to discrimination cases brought by transsexual people.
The statue provides:
It shall be unlawful employment practice for an employer
i. to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual … because of such individual’s … sex.
In a very few short years, from the first reported case of Voyles v R.K. Davies Medical 1975 in which it an employer was granted permission to dismiss a transsexual woman who requested to be called by her new name, to the decision in Kirkpatrick v Seligman & Latz Inc. (1979) in which a beauty salon employee was dismissed, the courts made discrimination claims by transsexual people impossible to pursue. According to the 1993 Employment Law Project of The International Conference on Transgender Law and Employment Policy, the courts have:
gone out of their way to find that existing federal non- discrimination laws do not apply to transgendered individuals
(ICTLEP, 1993: A6-2).
The courts have repeatedly held that the word "sex" in Title VII is to be given its plain meaning and is not to encompass transsexual people, the major thrust of the legislation was to provide equal opportunities for women. Protection under state employment practices acts and non-discrimination laws has also proved elusive, as in the case of Sommers v Iowa Civil Rights Commission (1983) where the Iowa Supreme Court held that an Iowa statute prohibiting dismissal on the grounds of sex or disability, did not prevent discrimination against transsexual people. Similarly laws protecting disabilities in particular have proved of little help (Jane Doe v Boeing Co (1992)). Thus the law has proved grossly inadequate, and transsexual people have realised that the law provided by others fails to comprehend their issues of import.
Thirdly there is an increasing theoretical (and personal/emotional) movement that says gender is merely socialised performativity. As an imaginary concept it is used to oppress, rather than it being given a personal space in which it becomes a means of expression (Bornstein, 1994). Therefore transsexual people have become involved in a much larger movement which calls for the empowerment to decide and formulate your own gendered position at any time. Gender expression therefore becomes an entirely arbitrary identifier, as sometimes it can take one form and sometimes another, but either way it is an entirely personal, belonging to the self, and as such should neither be imposed, or disparaged. As in other anti- discrimination movements, arbitrary identifiers should not be used to exclude people from the normal forms of social interactivity such as getting and keeping a job, bringing up children or registering relationships. Furthermore in the case of gender, it is only people who have a certain body morphology who face this discrimination, with another body morphology they would be respected. Therefore the body has to be extracted from gender praxis, accordingly the transgendered movement could come into existence. Within it gender ‘is’, rather than‘should be’.
Legally qualified and academic members of the community have been working on the fallout that results from this change in the community’s self identity, and what it means to be a transgendered / transsexual person. The removal of the body from identity means that judgements based upon the body, but imposed upon identity become problematic. Negative eugenics practice is based substantially within jurisdictions over the body, if the organising structure of identity becomes the site of jurisdictional control mechanisms, then the moral value of the ‘hereditarily deficient’ theses is faulted. Mainstream academic theories of deviance such as the Durkheimian tradition or Labelling, Foucauldian or Feminist theories of deviance, locate identity as a formulation of later life, of cause and effect rather than of ancestry and birth. It may be the case that transgendered theorists may deny gender as cause and effect (Whittle, 1996 in Ekins and King), but neither do they see it in terms of biological process. If anything the new formulations are attempting to move beyond either definitional point, and to go beyond into Bornstein’s (1994) third space in which
our own patchwork individual identities have come together to form a brilliant complex mosaic of theater for our day
(Bornstein, 1994, p 165).
Consequently the new transgendered community when faced with bodily control, whether medical, legal or social fights back, refusing to accept values which devalue the individual purely because they have, what are to congenital men and women, outlandish and alien bodies. Parenting is seen as being an experience that is pre-specified by the white heterosexist patriarchy. It has been demarcated by prevailing social attitudes, arrangements and mores which have in turn shaped the medical, legal and social rules relating to parenthood, which exclude unjustly many people from the experience, and hence the experience can never be transformed to include those people.
Parenthood : A natural state of affairs?
Parenthood is a basic dimension of human existence which conditions and structures our perceptions and conceptions of ourselves and others, and thus affects all our lives whether or not we become parents
(in Barton and Douglas, 1995, p 21)
Thoughts of parenthood and parenting dominate all our lives, whether it is the parents we experience or do not experience, or the parenting role we take, hope to take or want to avoid. Becoming a parent is for many people an essential aspect of their adult lives. In reality the majority of people in the world will become parents, and in a commonsense ideology the transition to parenthood is seen as the moment when new families are created - a moment recognised to be of particular societal significance (Wetherall, Dallos and Miell, 1993). Furthermore parenthood, for many, will provide a sense of immortality, an opportunity to see their lives extending beyond the physicality of the self. Frequently, from those people who have been involuntarily sterilised one sees statements where they say they feel they were robbed of their life and their future (Adams, 1995).
For most of us the opportunity to become a parent is a very important part of our life, and generally the law might now be said to prevent interference in the right of the individual to become a parent. From the decision in Roe vs Wade (1973), where the U.S. Supreme Court held that a woman’s reproductive rights were protected under the privacy clause of the Constitution to Article 12 of the European Convention which protects the right to found a family, the right to become a parent is as a general rule available to all.
However we must not make the assumption then that everybody has the right to become a parent - the right to found a family is principally a negative right, as Feldman (1993, p 906) says "a negative right - a right to be free of state interference". Yet this freedom from state interference is even then not available to all and, in the United Kingdom as elsewhere, judicial paternalism plays a significant role in authorising the sterilisation of women who would be unable to adequately care for any resultant children.
Mother or Father?
The notion of what is meant by parentage itself, until very recently, has not been in question, with all legal systems regarding it as a factual progenitory relationship (unless resulting from statutory adoption). But recent advances in reproductive technology has led to a questioning of what exactly is meant by the terms ‘mother’ and ‘father’ (McKnorrie, 1994). In English law, for example, The Human Fertilization and Embryology Act 1990 has removed the genetic imperatives that used to signify parentage, and there is no longer any requirement for a legally recognised father to be the person who performed the fecundatory role in the conception of a child, nor does a mother have to have any genetic relationship with a child. She can become a mother by virtue of carrying the fertilised eggs of some other woman. Furthermore surrogacy has meant that though there may be a genetic relationship, motherhood may well not involve a birth relationship. However common sense presumptions prevail still in that a father is required to be a man, and a mother: a woman. There are many problems however with this simple view, and in law the question of what is a man or a woman still requires a tremendous amount of clarification, particularly with regard to transsexual people as can be seen in the case of X.,Y. and Z. v The United Kingdom, which is about to be heard before the ECHR.
Man or Woman?
The judgement of Ormrod L J in the now infamous case of Corbett v Corbett [1970] which removed the right to marry from heterosexual transsexual people, gave the courts an opportunity to define what is meant by ‘man’ and ‘woman’. The judgement in Hyde v Hyde ([1866] had not defined what was meant by the words, and Ormrod felt that as both a doctor and judge he was in a position to be able to enlighten the law as to what these words meant.
Corbett v Corbett concerned the marriage of April Ashley, a male to female transsexual. On the breakdown of the marriage her husband petitioned for nullity on the grounds that i. the respondent remained a male and hence the marriage was void and ii. the marriage was never consummated due to the incapacity of the respondent.
Ormrod decided the case on these two issues. As for the sexual identity of April Ashley, Ormrod devised a test based upon three factors. Sex was to be considered through: chromosomal, gonadal and genital features at the time of birth. These were established as being "male" at the time of Miss Ashley’s birth. However, rather than deciding whether she was then a man, Ormrod J. referred back to the decision in Hyde v Hyde and held:
Since marriage is essentially a relationship between man and woman, the validity of the marriage in this case depends, in my judgement, on whether the respondent is or is not a woman. I think with respect this is a more precise way of formulating the question than that adopted in para.2 of the petition, in which it is alleged that the respondent is male. (Corbett v Corbett, 1970: 48)
One of the problems with any analysis of Ormrod’s judgement is that he constantly mixed the notions of "male and female" with those of "man and woman". For example he states in conclusion to this question:
the respondent is not a woman for the purposes of marriage but is a biological male and has been so since birth
(Corbett v Corbett, 1970: 49);
but he does not attempt to categorise Miss Ashley as a man. He argues that marriage is a relationship based on sex rather than gender, so he really needed to consider her to be a ‘man’, yet almost certainly Ormrod was faced with a dilemma that arose from his being unable to define the person in front of him as a man yet he felt unable, in law and because of the test he had devised, to call her a woman. The sailors who wrote to April Ashley for pin-ups for their mess room walls had no doubts, just as in May 1992 readers of "Playboy" were not going to have doubts about their centre page model, ‘Tula’ (Caroline Cossey), another transsexual woman who was to pursue the British Government to the European Court of Human Rights in her attempt to get them to allow her to marry a person of her opposite gender.
Ormrod, because of his inability to find Miss Ashley to be a woman, declared the marriage to be void, as it was not a marriage between a man and a woman. Once he had established the marriage was void, there was no reason for him to consider the second ground: whether the marriage could have been consummated. However he did so, and was of the opinion that ‘normal’ intercourse was not possible between a post-operative male to female transsexual and a man, the difference between that and anal intercourse was a fact "to be measured in centimetres".
Ormrod distinguished this from the earlier judgement in SY v SY [1962] in which a decree of nullity, due to failure to consummate, had been refused on the grounds that a vestigial vagina could have been corrected by forming an artificial passage. Medically there is little difference between an extended vagina as in SY v SY and a wholly artificial one as in Corbett, just as there is little difference in any resultant act of intercourse. There is an irony in the distinction made between the two cases, in that it would seem to have been made on the basis that SY was an imperfect woman; however nowadays it is very likely that she would have been diagnosed as a case of testicular feminisation and accordingly been discovered to be a chromosomal male - in other words she would not have been a woman for the purposes of marriage on the same basis that April Ashley was not a woman. It could therefore be argued that Ormrod misdirected himself with regard to the distinguishing facts in Corbett, as opposed to those in SY v SY. Furthermore the construction of an artificial vagina is not restricted to transsexual women, for some women also have reconstructive surgery in acute cases of vaginal atresia (absence or closure of a normal body orifice) before they are able to have sexual intercourse. Are these people ‘not women’?
The case held that the sex of a person is, in law, dependant entirely upon their gonadal, genital and chromosomal sex at birth. Thus, irrespective of any reconstructive surgery, the transsexual woman is not a woman and has at all times been a biological male. The decision in Corbett has been incredibly influential, despite being from the High Court. It has been followed as precedent in other matrimonial cases such as Peterson V Peterson [1985], Franklin v Franklin [1990] and in the criminal law in R v Tan [1983], and the United Kingdom Government has supported this definition of sex in all of the ‘transsexual’ cases going to the European Courts.
As said, many nation states afford the transsexual person some rights and protection in their new gender role. In New Zealand the Registrar of Marriages requested a declaration from the High Court as to whether two people of the same sex may be validly married if one of them has undergone gender reassignment. Transsexual people in New Zealand, as is the case here in the United Kingdom, still cannot have their birth certificates altered, but Judge Ellis, challenging the 3 point test of Ormrod, held:
… the law of New Zealand has changed to recognise a shift from sexual activity and more emphasis being placed on psychological and social aspects of sex, sometimes referred to as gender issues.
(Judge Ellis, reported in the Evening Post, 1st December 1994)
This, along with recent decisions from other jurisdictions such as France, can only add to the weight of opinion which holds that Ormrod wrongly directed himself in Corbett v Corbett. Nonetheless, in English law the transsexual person has been left in the position of being neither man or woman, but a matrix of legal constructs which vary from moment to moment.
The Neither Man or Woman in Law
The problems associated with the definitional problems associated with the dichotomous view of gender, and in particular the right to reproduce are not just confined to the United Kingdom. To illustrate the issues I want to look at two particular instances: a state which requires sterility in its legislative provision for transsexual people, and one which doesn’t.
Most gender status recognition Bills require the transsexual person to provide evidence that reassignment treatment has taken place, and that this be provided from medical sources. But the legislation is careful not to demand any particular sort of surgical procedure or hormone therapy. The German legislation requests that the transsexual person 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 as we have seen.
Nevertheless in the case of OLG Zweibruken (1993) concerning a transsexual man, the courts have been asked to ascertain what the law requires for 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 which the applicant did not desire? The case has been decided in two lower courts in favour of the transsexual applicant, but again the State representative appealed but the appeal was rejected (Council of Europe, 1995, p 89). Interestingly one of the court’s reasonings as to why there was not a problem, was that occlusion of the vagina was unnecessary as hormone therapy would diminish the size of the vagina, so precluding sexual activity as a woman. This makes several false assumptions, firstly that the vagina diminishes in size, secondly that women always have vaginal intercourse, and thirdly that transsexual men are never gay. The decision and commentary on it by Wills (Council of Europe, 1993) are indicative of the lack of understanding of transsexualism, its features and the effects of reassignment treatment and it highlights the continuing problems of ignorance that the transgendered community will face as they struggle to create a new gender agenda.
The issue of the requirement of sterility, itself, has arisen in an earlier German case concerning a transsexual man who had undergone a bilateral mastectomy, but who because of liver trouble was unable to continue hormone therapy, and after a motor accident he was unwilling to undergo any further surgery. The TSG requires that the transsexual person be "completely non-reproductive" and this has a bearing on the discussion as to what surgery an applicant for the major solution (i.e. change of sex designation) must have undergone. In this case 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. In obiter, the court held that a reversible interruption of the fallopian tubes might be sufficient, because a transsexual man would be very unlikely to seek such a reversal. However Wills argues that this does not preclude the possibility of in-vitro fertilisation, therefore such practice according to him must not prevail (Council Of Europe, 1995, p 88). Again we see another of the assumptions that prevail in this area. It may stretch the imagination to think of a man giving birth, or a woman impregnating and "fathering" a child. Yet where does the law define that a mother must be; a person of xx chromosomes with a womb and vagina and a father; a person of xy chromosomes with testes and a penis? For that matter, where does it define a man as having xy chromosomes, and a woman: xx chromosomes. It is in Ormrod’s decidely problematic decision in Corbett v Corbett that we see these criteria being established.
The apparently inconceivable scenario referred to above is not only possible, but in some people’s real lives, specifically transsexual and transgendered people it is a real possible (if improbable) legal complexity for which there is no provision, except perhaps in the negative.
The requirement that the transsexual person should not be able to reproduce through the biological mechanisms concordant with their natal sex designation are not the only issues. What if surgical techniques improve and the transsexual woman is able to carry a child - must they not be allowed to? And where do we draw the lines? It is not possible to do more than touch upon this issue however it is, I think, one that will increasingly be put on the agenda by transgendered people themselves. The truth of the matter is that these difficult questions are all too easily avoided, because to be transsexual means you are seen either as a non-person or at best a less worthy person. We do not see the issues as being meritorious enough to command out time and our thoughts. Gender and sex are merely linguistic signposts which should be used to help us to deal with difficult issues, not to dictate them. And in law, we really should not base legislative decisions around ‘gut feelings’.
In contrast it is possible in the various United States and Canadian states where similar bills have been enacted to obtain legal recognition of a new gender status without having to undergo sterilisation. For example in British Columbia under the Revised Statutes British Columbia 1974, chap 66, s 21a an unmarried transsexual person 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).
but there is no specific requirement of sterility. However the problems that have arisen under German law have also arisen under Canadian law, though through a slightly different approach, and in a slightly different form.
In two Canadian cases; C(L) v C(C) (1992) and B. v A. (1990) transsexual men were held not to be spouses / husbands for the purposes of marriage and family law, albeit that they were for other purposes. If the only surgery they had undergone was a bilateral mastectomy and a hysterectomy, though they could become men they could not become husbands. The Courts, both in Ontario, followed the doctrine in Corbett v Corbett (1970). In B. v A. the parties had lived together for twenty years, and on that basis had applied for a motion of financial support. Though the transsexual man had had his 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 transsexual man would mean that he continued to be female and hence could not marry another female. C(L) v C(C) 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. If not a man for the purposes of marriage are they a man for the purposes of fatherhood, and they certainly would not be a man if they retained their reproductive facilities.
Thus we see Ormrod’s resultant matrix of legal identities existing in many jurisdictions. For example in New Zealand, as mentioned previously, transsexual people can now marry members of the opposite gender group, but that does not necessarily make them members of their identified gender group for all legal purposes, that will have to be decided through the courts as problems arise.
The International Bill of Gender Rights
One of the ways in which the transgendered community promotes the issues and the problems surrounding them is the International Bill of Gender Rights (IBGR). The most recent version (it is amended yearly to keep up to date with the developing theory within the community) as adopted June 17, 1995, Houston, TX, USA is a theoretical legal document which formulates basic human rights from a transgender perspective. One of the IBGR’s most important functions is to help the transgendered community understand what it is exactly that they are fighting to achieve.
These rights are not seen as "special" rights. They are seen as universal statements of human rights which can be claimed and exercised by every human being. None of the customary labels - gay, lesbian, bisexual, transgendered, transsexual, transvestite, bi-gendered, crossdresser, etc. are used in the IBGR. One of the aims is that one need meet only one qualification and accept one label to qualify for all of these rights - be a human being.
The first right embodied in the IBGR is :
The right to define gender identity
PREAMBLE: All human beings carry within themselves an ever-unfolding idea of who they are and what they are capable of achieving. The individual’s sense of self is not determined by chromosomal sex, genitalia, assigned birth sex, or initial gender role. Thus, the individual’s identity and capabilities cannot be circumscribed by what society deems to be masculine or feminine behaviour. It is fundamental that individuals have the right to define, and to redefine as their lives unfold, their own gender identities, without regard to chromosomal sex, genitalia, assigned birth sex, or initial gender role.
Therefore, all human beings have the right to define their own gender identity regardless of chromosomal sex, genitalia, assigned birth sex, or initial gender role; and further, no individual shall be denied Human or Civil Rights by virtue of a self-defined gender identity which is not in accord with chromosomal sex, genitalia, assigned birth sex, or initial gender role.
From this is follows on to produce amongst others a tenth right:
The right to conceive, bear or adopt children; The right to nurture and have custody of children and to exercise parental capacity
PREAMBLE: Given the right to form a committed, loving relationship with another, and to enter into marital contracts, together with the right to express a self-defined gender identity and the right to sexual expression, individuals have a corresponding right to conceive and bear children, to adopt children, to nurture children, to have custody of children, and to exercise parental capacity with respect to children, natural or adopted, without regard to chromosomal sex, genitalia, assigned birth sex, or initial gender role, or by virtue of a self-defined gender identity or the expression thereof.
Therefore, individuals shall not be denied the right to conceive, bear or adopt children, nor to nurture and have custody of children, nor to exercise parental capacity with respect to children, natural or adopted, on the basis of their own, their partner’s, or their children’s chromosomal sex, genitalia, assigned birth sex, initial gender role, or by virtue of a self-defined gender identity or the expression thereof.
(ICTLEP, 1995)
Thus the IBGR states specifically that the right to be a parent should not be dictated by your gender identity, and if you live in an oppositional gender role that should not prevent you procreating, conceiving or bearing children, dependant of course on your ability. In view of the move to the acknowledgement of a transgendered identity rather than a solely transsexual identity this means that if legal rights are afforded regardless of gender identity an individual who lives and is legally recognised as a male, but who for some reason (medical, financial, or of their own choice) has not taken enough hormones, or undergone enough surgery to render it otherwise, could bear a child. This is not such a far- fetched concept, many transsexual men identify as gay and have penetrative sex relationships. Similarly many transsexual women identify as lesbians.
Should those who do not understand what it is to experience a gender identity that is discordant with the body be the people to decide whether the transgendered person experiences of life are not worthy enough to pass on. What little research that has been done has shown that the children of transsexual parents are just as likely to grow up well adjusted (and as heterosexual) as any other child (Green, 1978). However it becomes illogical to discuss the ‘best interests’ of the child, if the child can never be born. Just as in eugenics, the claim is made that the transsexual person is not suitable to be a parent, then they are refused access to parenthood, and this supports the claim because there is no evidence to the contrary.
Science and society is changing all too rapidly for us to know now what will lie in the future, but it is not so long in the past that negative eugenics, the forced sterilisation of unfit, asocial groups of people was accepted medical practice not only in Nazi germany but also in the USA, Canada and Australia. It is perhaps of interest here that sterility requirements for the transsexual person are features of the juridical systems of these countries rather than of state which might be seen to have a far worse human rights record for example Turkey and South Africa, where there are no specific surgical or sterility requirements. Undoubtedly the discourses which led to the ‘hygienic’ practices of the past are still just bubbling under the surface. The transsexual / transgendered person could be regarded as the ultimate none being, neither man or woman, a-gendered and hence asocial, therefore a danger to all our futures. Yet they really are just like the rest of us, throughout history they have been carrying their genes alongside ours.
The only way to oppose eugenics is to ensure that human rights come first. The idea of "scientifically" manufacturing a set of people exclusively composed of individuals with certain characteristics must be outlawed because it runs counter to the dignity of human beings, who are unique, free and responsible for their actions….. In the words of the American novelist Paul Auster "Each man is the entire world, bearing within his genes a memory of all mankind"
(Elnadi, 1994, p 5).
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