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Legal aspects of transsexualism

Transsexual people are persons who establish a permanent identity with the opposite gender to their birth sex. This raises many legal issues and aspects of transsexualism.

Many transsexual people have their bodies permanently changed by surgical means or semi-permanently changed by hormonal means (see Gender reassignment therapy). In many countries, some of these modifications are required for legal recognition. In a few, the legal aspects are directly tied to health care; i.e. the same bodies or doctors decide whether a person can go ahead, and the processes following automatically incorporates both matters.

The degree of legal recognition provided to transsexualism has been varied throughout the world. Many countries now extend legal recognition to sex reassignment by permitting a change of gender on the birth certificate. A sometimes controversial question is the marriage of transsexual people, a question to which different jurisdictions have come to different answers. Issues also arise in areas such as the right to change one’s name, eligibility to compete in single sex sports, and insurance and social security where the benefits available depend on one’s sex.

The amount to which non-transsexual transgender people can benefit from the legal recognition given to transsexual people varies. In some countries, an explicit medical diagnosis of transsexualism is (at least formally) necessary; in others a diagnosis of gender identity disorder, or simply the fact that one has established a different gender role, can be sufficient for some or all of the legal recognition available.

Europe

All western European countries give transsexual people the right to at least change their first name. Most also provide a way of changing birth certificates. Several European countries recognize the right of transsexuals to marry in their post-operative sex. France, Germany, Italy, the Netherlands, Portugal, Denmark, Finland, Sweden and the United Kingdom all recognize this right.

United Kingdom

Historically in the United Kingdom, people had succeeded getting their birth certificates changed and marriages conducted. However, this was not legally tested until the case of Corbett v. Corbett, where Arthur Corbett attempted to annul his marriage to April Ashley on the grounds that transsexuals were not recognised in English law. It was decided that, for the purposes of marriage, a post-operative transsexual was to be considered to be of the sex they had at birth.

This set the precedent for the coming decades. People who thought they had existing valid marriages turned out not to – and the previous unofficial changing of birth certificates was stopped.

Transsexual people were able to change their names freely; to get passports and driving licenses altered, to have their National Insurance details changed, and so forth. A piece of legislation was also introduced to ban discrimination against transsexual people for employment.

In the 1980s and 1990s the pressure group Press for Change helped people take several cases to the European Court of Human Rights about this. In Rees v. United Kingdom it was decided in 1986 that the UK was not violating rights; but that they should keep the situation under review. The UK government did nothing to look at the situation – and in 2002 in the case Goodwin v. United Kingdom, that the right to a privacy and family life were being infringed.

In response to its obligation, Parliament passed the Gender Recognition Act 2004, which effectively grants full legal recognition for transsexual people. The first registrations under this Act are expected in late 2004 or early 2005.

In contrast to systems elsewhere in the world, the Gender Recognition process will not require applicants to be post-operative. They need only demonstrate that they have suffered gender dysphoria, have lived in the ‘acquired gender’ for two years, and intend to continue doing so until death.

Medical treatment

It has been established by the courts that no National Health Service Health Authority has the right to deny treatment for gender dysphoria as a matter of policy. However, effective access to treatment varies wildly depending upon the policies of the individual Gender Identity Clinics — with some taking a more relaxed approach than others. Trans people frequently characterise some centres as arrogant and controlling. A minimum requirement of 24 months real life experience before a surgical referral is permitted is not uncommon; and many GICs will force patients to transition before they are allowed access to hormones.

Many trans people who can afford it instead seek private treatment; though most private health insurance plans specifically exclude it. Often people will seek hormones privately and then later seek surgery on the NHS; which may prove troublesome because the NHS likes to be involved at all stages of the process.

However, that position has now seemingly been overridden by a subsequent decision, Goodwin v. United Kingdom (11 July 2002) in which the right to marry (Article 12 of the ECHR) and the right to a private and family life (Article 8 ECHR) were infringed by the UK’s refusal to allow a post-operative transsexual person to change the gender on their birth certificate (the only conclusive documentary proof of gender in most cases including marriage). One of the factors considered by the Court was the acceptance of gender identity disorder by the UK’s National Health Service and the provision of treatment including surgery. Another factor was the fact that the government had effectively done nothing to keep the law under review. The UK must therefore take steps to provide such recognition. In 2004 Parliament implemented its obligation with the Gender Recognition Act 2004.

Corbett v. Corbett

Corbett v. Corbett concerned a postoperative male-to-female transsexual, April Ashley. Ormord J found that since Ashley had male gonads, genitalia and chromosomes at birth, her “true sex” was male at the time of her birth, and that her “true sex” could not be changed. Chisholm attacked Ormord J’s argument as simply defining one’s “true sex” as ones biological sex at birth, ignoring the social and psychological aspects of sexual identity, without producing any convincing reason as to why these should be ignored. Ormord J mostly presumes it to be “obvious”, although he does produce some arguments. He argues that a post-operative transsexual cannot “naturally” perform the “essential role” of a man or woman in a marriage. Chisholm rejects this argument, on the grounds that, whatever exactly the “essential role” in marriage is, be it reproduction or intercourse, many born men or women are incapable of doing so, and yet they are still considered men or women for the purposes of the law of marriage.

Justice Chisholm attacks Ormord J’s decision for assuming that there is some essential characteristic that makes people male or female. He argues that sex is a compound of many elements, chromosomal, genital, gonadal, psychological and social, and that while in most people these criteria are congruent, in others they are not. He denies there is any ‘true sex’ of an individual, beyond these various criteria that make up one’s sex, and he denies that any one of these criteria can be taken as totally determinative, in the abscence of the other criteria.

Justice Chisholm also notes that while the English, South African and Canadian courts have accepted Ormord J’s decision, New Zealand has rejected it. The question had not been considered before by Australian courts.

Justice Chisholm also considers the situation raised by Ormord J, where a married person seeks to changes their sex in the marriage, thereby giving the appearance of a homosexual marriage. Ormord J sees this as an argument against permitting legal recognition of transsexuality for the purposes of marriage law. Justice Chisholm points out that refusal of such legal recognition could equally give the appearance of homosexual marriage, since then someone who appears to be a man and lives socially as a man, but is legally considered to be a woman, could legally marry a man. Justice Chisholm suggests that the person’s sex at the time of the marriage determines whether they can legally marry, and that a person who had a sex reassignment during their marriage would continue to be married until either party sought a divorce, even though their marriage would now be homosexual.

Germany

The “Transsexuellengesetz”

Since 1980, Germany has a law that regulates the change of first names and legal gender. It is called “Gesetz über die Änderung der Vornamen und die Feststellung der Geschlechtszugehörigkeit in besonderen Fällen (Transsexuellengesetz – TSG)” (Law about the change of first name and determination of gender identity in special cases (Transsexual law – TSG)).

In Germany, as in many countries whose law is at least partly based on the Code Napoleon, the first name has to be gender-specific. One can either obtain a change of name alone, and proceed later with a change of legal gender, if possible or desired, or obtain both in a single procedure.

For both, two official expert opinions have to be presented to a court stating that:

  • a medical diagnosis of transsexualism has been made,
  • the person has felt the need of living “according to their desires” for at least three years, and
  • it is “unlikely” that the “feeling of belonging to the other sex/gender” is going to change any more. (German does not differentiate between sex and gender).

The change of name can and almost certainly will be revoked if the person marries and then fathers or gives birth to a child that was conceived after the name change became valid.

For the change of legal gender, it is also required that

  • the person is unmarried,
  • permanently infertile, and
  • “has had surgery through which their outer sexual characteristics are changed to a significant approximation to the appearance of the other sex/gender”.

Originally, the law stated that neither change of name nor legal gender were available for people under 25 years of age. This condition has been declared void by the courts, and today there is no minimum age.

The TSG applies only to German citizens; there are exceptions only for non-German citizens with very specific legal status, such as stateless people living legally in Germany.

Unless a person can show that they do not have the money to pay for the procedure, the applicant has to pay the costs for the procedure. The costs for the court itself are about 60-70 Euros, but the expert opinions can range in cost from 0 Euros to several thousand Euros – on average around 600 to 1200 Euros.

Several court decisions have further specified several matters. For example, a person with only a name change has the right to be called “Herr” or “Frau” (Mr. or Mrs.) according to their first name, not their legal gender; similarly, documents have to be issued reflecting the actual gender role, not legal gender. Job references, certifications and similar from the time before the change of name have to be reissued with the new name, so effectively there is no way for a new employer to learn about the change of name and/or gender. Also, people with only a name change do not have to divulge their legal gender to employers even if the gender of the employee usually matters in a particular job. (For example a medical assistant to a gynaecologist.)

Criticism of the “Transsexuellengesetz”

In the last couple of years, the TSG has come under intense criticism not only from the trans community, but also some medical caregivers. This criticism is directed against both the way the law is applied, especially concerning the way “expert opinions” are done, and the wording of the law itself.

Particularly the following parts of the TSG are criticised:

  • The mandatory diagnosis of transsexualism, instead of “gender identity disorder” or simply granting at least name changes on the basis of individual need.
  • The fact that (almost) only German citizens can obtain papers reflecting the gender role they live in, resulting in significant problems for people living in Germany who are not German citizens.
  • The need for “expert opinions”, see below.
  • The proceedings can take a very long time, especially because of the time that is often needed for the expert opinions, but also because courts are often overloaded. Half a year is a rather fast decision, one year or more is not unusual.
  • People who have only changed their name have a questionable legal status. While most of the time this is perfectly sufficient, there are several problems in specific situations. A person with only a name change …
    • who is in hospital or prison has no right to be accommodated according to the gender role they live in, but can be housed according to their legal gender;
    • can enter a registered partnership with a person of the same legal gender (since 2001), but can not marry or enter any kind of legally secured partnership with a person of the opposite legal gender;
    • risks their name change when fathering or giving birth to a child.
  • The conditions for a change of legal gender are often considered too high:
    • The requirement to be unmarried means that people who are married and wish to remain so can not obtain a change of legal gender. (How a legal change of gender would affect a registered partnership is currently unknown, since registered partnerships only became available since 2001.)
    • The requirement to be “permanently infertile” is seen as interfering with the right to physical integrity, especially since a simple sterilisation is usually not seen as sufficient, but castration is required instead.
    • The requirement for surgery, which is interpreted essentially as a requirement for genital reassignment surgery, is seen as interfering with the right to physical integrity. This is always applied to trans women, and trans men are only currently exempt because the results are seen as unacceptable. This exemption is regularly challenged by judges.

As has already been mentioned, the “expert opinions” can be very expensive. Some “experts” wish to test everything they can think of, including intelligence and/or every psychiatric disorder they can think of. Also, the sexual history of the clients is of particular interest to some. This results in assessments which are lengthy (several months are not unusual), costly and humiliating.

Many “experts” also consider only those people as transsexual who live in a gender role that the expert considers “appropriate” — resulting in problems for example for trans women who sometimes do not wear skirts or trans men with hair that is considered “too long”. Especially lesbian trans women and gay trans men suffer from problems with these “experts”.

Since the courts usually impose the “experts” on the applicants (which is legally at least questionable) there is no way to escape these often expensive, lengthy and humiliating assessments. Not every expert who is asked for an expert opinion however will work according such questionable “guidelines”. Since there are many regional differences, there is a certain amount of “trans-tourism”; people (at least officially) moving to the circuit of courts who are known to appoint “liberal” or “reasonable” experts. However, the general problems with “expert opinions” have led to demands to abandon these completely or at least to lower the required number to one and to lower the formal requirement for it. Many of this criticism applies also to “expert opinions”, “letters of recommendation” or similar papers regarding medical procedures. The same problems with “experts” are also experienced in all other countries.

Legal aspects of medical treatment

Based on several court decisions, some dating back to the late 1970s, medical treatment of transsexualism (and in fact all gender identity disorders) has to be paid by health insurance, which is mandatory in Germany. Like all treatments that have to be paid for by health insurance, “medical necessity” has to be shown in each particular case. In some cases, this can lead to lengthy procedures, although this is not always the case. However, the less “medical necessity” can be shown, the more difficult it gets to get coverage. This is particularly true for surgeries like Facial Feminization Surgery, but also occasionally for more basic matters as the construction of a neo-clitoris.

The regulation of coverage of medical costs is formally completely unrelated to the TSG; in practice, there can be overlaps, for example with expert opinions.

Africa

South Africa

South African courts have accepted the Corbett decision, but New Zealand courts, and more recently an Australian court (see Re Kevin – validity of marriage of transsexual, below), have rejected it. Some Canadian courts have also accepted the decision, though the law in question appears to vary from province to province.

Americas

United States

The United States law on this issue varies from state to state, since the issuance of birth certificates and the recognition of marriages are largely state matters. Several courts have come to the conclusion that sex reassignments are not to be recognized for the purpose of marriage, including courts in Ohio, Texas and New York. Other courts (including courts in Kansas and New Jersey) have recognized the reassignments.

Most U.S. states permit the name and sex to be changed on a birth certificate, either through amending the existing birth certificate or by issuing a new one. But Idaho, Ohio and Tennessee refuse to permit a change of sex, and Florida will not even change the name. California will amend birth certificates only for California natives currently living in California. However, on August 2, 2003, California joined Minnesota, Rhode Island and New Mexico (as well as New York City) in expanding legal protection from discrimination to include gender identity or expression, which may aid transsexuals in future cases in these jurisdictions.

U.S. cases

The first case to consider transsexualism in the U.S. was Mtr. of Anonymous v. Weiner, 50 Misc. 2d 380, 270 N.Y.S.2d 319 (1966), in which a post-operative transsexual sought from New York City a change of their name and sex on their birth certificate. The New York City Health Department refused to grant the request. The person took the case to court, but the court ruled that granting of the request was not permitted by the New York City Health Code, which only permitted a change of sex on the birth certificate if an error was made recording it at birth. In the case of Matter of Anonymous, 57 Misc. 2d 813, 293 N.Y.S.2d 834 (1968), a similar request was also denied. However, in that case, and in the case of Matter of Anonymous, 64 Misc. 2d 309, 314 N.Y.S.2d 668 (1970), a request was granted for a change of name. The decision of the court in Weiner was again affirmed in Mtr. of Hartin v. Dir. of Bur. of Recs., 75 Misc. 2d 229, 232, 347 N.Y.S.2d 515 (1973) and Anonymous v. Mellon, 91 Misc. 2d 375, 383, 398 N.Y.S.2d 99 (1977). However, despite this, there can be noted as time progressed an increasing support expressed in judgements by New York courts for permitting changes in birth certificates, even though they still held to do so would require legislative action.

Another important case was Darnell v. Lloyd, 395 F. Supp. 1210 (D. Conn. 1975), where the court found that substantial state interest must be demonstrated to justify refusing to grant a change in sex recorded on a birth certificate.

The first case in the United States which found that post-operative transsexuals could marry in their post-operative sex was the New Jersey case M.T. v. J.T., 140 N.J. Super. 77, 355 A.2d 204, cert. denied 71 N.J. 345 (1976). Here the court expressly considered the English Corbett v. Corbett decision, but rejected its reasoning.

In K. v. Health Division, 277 Or. 371, 560 P.2d 1070 (1977), the Oregeon Supreme Court rejected an application for a change of name or sex on the birth certificate of a post-operative transsexual, on the grounds that there was no legislative authority for such a change to be made.

Canada

Main article: Changing legal gender assignment in Canada

The situation in Canada varies depending upon which province you are in. It is possible to gain recognition in each of them, but with varying requirements.

Asia

Singapore

Singapore has also recently recognised the right of transsexuals to marry in their reassigned sex.

Japan

In July 2003, the parliament of Japan unanimously approved a new law that enables transsexual people to change their legal sexes. The law, effective in 2004, however, has controversial conditions which demand the applicants be both unmarried and childless. On 28 July 2004, Naha Family Court, Okinawa Prefecture, allowed an official sex-change of a transsexual woman, generally thought as the first court approval under the new law.
In May of 2005, the Tokyo Metropolitan Government’s Transport Authority announced that transsexual people and those “suffering from a gender disorder” will be permitted to ride in designated women-only carriages on its subway lines. [1]

Australia

Re Kevin – validity of marriage of transsexual ([2001] FamCA 1074, online copy available here) is a groundbreaking recent judgement of the Family Court of Australia, concerning the right of transsexuals to marry. Kevin (not his real name), a post-operative female-to-male transsexual, married Jennifer (not her real name). Kevin had undergone hormonal treatment and sex affirmation surgeries. His sex indicator had been changed on his birth certificate and other legal documentation. The question faced by the court was whether Kevin was a man for the purposes of family law in Australia. English law had decided, in the case of Corbett v. Corbett (1971), that sex reassignment would not be recognized for purposes of marriage. Justice Richard Chisholm (the judge in this case) found fault with the logic of this decision and held it did not bind Australian law.

Justice Chisholm stated that, to determine a person’s sex for the purpose of the law of marriage, all relevant matters need to be considered, including: the person’s biological and physical characteristics at birth (including gonads, genitals and chromosomes); the person’s life experiences, including the sex in which he or she is brought up and the person’s attitude to it; the person’s self-perception as a man or woman; the extent to which the person has functioned in society as a man or a woman; any hormonal, surgical or other medical sex reassignment treatments the person has undergone, and the consequences of such treatment; and the person’s biological, psychological and physical characteristics at the time of the marriage, including (if they can be identified) any biological features of the person’s brain that are associated with a particular sex.

His Honour stated that it is clear from the Australian authorities that post-operative transsexuals will normally be members of their reassigned sex. Holding that the sex of a person for the purposes of marriage is their sex at the time of the marriage, he found Kevin to be a man within the ordinary, contemporaneous meaning of the word and declared his marriage was therefore valid. The Attorney-General appealed.

The Full Court of the Family Court, upholding the decision at first instance [2], determined that the reasoning of the Family Division of the UK High Court in W v W, an intersex marriage case, [3] was a correct statement of the law in Australia and that people with transsexualism, like others with intersex conditions, should be able to choose their sex, affirm it and marry as a member of that sex.

See also