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The specific legal focus here relates to decisions in the U.S., U.K. and New Zealand,
concerning validity of legal marriage where one of the parties is a post-operative
transsexual. We mention, as well, statutes, regulations and decisions, in the U.S.,
concerning revision of identity documents such as a birth certificate in cases where a
transsexual individual has made, or is in the process of making, a gender transition. As
in an earlier paper (Swartz, 1997) we cite observations by Oliver Wendell Holmes, Jr.,
which have particular relevance to developing a fruitful understanding of American law.
The passage also sets the stage for presenting a contrast, necessarily somewhat simplified
for purposes of this brief presentation, between two different modes of thought pertinent
to arriving at policy decisions concerning law and transsexualism. Our discussion may be
found to have a bearing, also, on approaches to medico-legal issues more generally.
Holmes, later to become one of the most distinguished justices of the United States
Supreme Court, says the following at the outset of The Common Law, in words
probably familiar to every American law student.
"The life of the law has not been logic: it has been experience. The felt
necessities of the time, the prevalent moral and political theories, intuitions of public
policy, avowed or unconscious, even the prejudices judges share with their fellow-men,
have had a good deal more to do than the syllogism in determining the rules by which men
should be governed." (Holmes, 1881, p. 1)
People in the U.S. are inclined to believe that the law should change with the times,
be up to date, should be practical and realistic. Nevertheless, it must be said that in
the case of law pertaining directly or indirectly to sexuality, personal and social
ambivalences, as well as a strong moralistic streak in American culture even to this day,
tend to complicate and sometimes confound the usual American legal approach (Swartz,
1994).
American law tends to be pragmatic, not necessarily consistent or uniform, down to
earth and practical in its emphasis. It tends to be piecemeal in its approach and cautious
both in terms of formulating broad abstractions and in relying heavily on the persuasive
power of conclusions resting mainly on deductions drawn from abstractions.
Although he was speaking about a method in philosophy, much of what William James says
about pragmatism sheds light on features often, although not always, found in American
legal method. He refers to "The attitude of looking away from first things,
principles, 'categories,' supposed necessities; and of looking towards last things,
fruits, consequences, facts." (James, 1907, pp. 54-55 [italics in original omitted]).
He comments that "Pragmatism is uncomfortable away from facts" and asserts
perhaps unfairly, "Rationalism is comfortable only in the presence of
abstractions." (James, 1907, p. 67). Finally, for the moment, James speaks
"about truths in the plural" and the fact that "Truth, for [the
pragmatist], becomes a class-name for all sorts of definite working-values in
experience." (James, 1907, pp. 67, 68).
Birth Certificates
Confronted in the mid-1960's with applications by transsexuals (mainly male-to-female)
for change of sex on birth certificates, the Board of Health of the City of New York
requested the opinion of the Committee on Public Health of the New York Academy of
Medicine, as to whether such changes should be granted. The main conclusions approved by
the Committee in October 4, 1965 (New York Academy of Medicine, etc., 1966, p. 724) were
as follows:
"1) Male-to-female transsexuals are still chromosomally males while ostensibly
females.
2) It is questionable whether laws and records such as birth certificates should be
changed and thereby used as a means to help psychologically ill persons in their social
adaptation. The Committee is therefore opposed to a change of sex on birth certificates in
transsexualism."
Relying on the above, the New York City Board of Health adopted a resolution that
"the Health Code not be amended to provide for a change of sex on birth certificates
in cases of transsexuals." The Board of Health also went on record as stating that
"an individual born one sex cannot be changed for the reasons proposed by the
request which was made to us. Sex can be changed where there is an error, of course, but
not when there is a later attempt to change psychological orientation of the patient and
including such surgery as goes with it [sic]."
The refusal of the Board to grant such requests was upheld in the case of Anonymous
v. Weiner, 50 Misc. 2d 380, 270 N.Y.S. 2d 319 (Sup. Ct., N.Y. Co., 1966), which cited
the material quoted above.
The Law Division of the American Medical Association published a strongly critical
response to the Weiner case and New York's actions, noting that at that time ten
states had permitted change of sex on the birth certificate of a transsexual who had
undergone convertive surgery. The "Conclusion" of this response included the
following language especially pertinent to our concerns here.
"Cooperation between medicine and law in cases of intersexuality is necessary and
important, but the law cannot accept classifications of sex that are inconsistent with
the practical relationships of everyday life. On the other hand, the law must exhibit
concern for all its citizens, even those who are transsexuals. In Anonymous v. Weiner,
the Board of Health convinced itself that it was exhibiting such concern. There might be
some doubt as to the sincerity of such concern, however, when the law requires one who,
for valid physical, not merely psychiatric, reasons, feels obligated to live as a female
(and has undergone convertive surgery to assist her) to present a birth certificate of a
male when she wants to marry or qualify for social security or other government or
insurance benefits." (Morse and Hall, 1968, p. 290 [italics added]).
The Documentation Law Project of the International Conference on Transgender Law and
Employment Policy (ICTLEP) is presently in the process of researching and discussing
practical procedures for dealing with statutes and administrative regulations concerning
legal documents of special relevance to transsexuals, such as drivers' licenses, birth
certificates, and passports. Detailed coverage has thus far included, inter alia, the U.S.
federal government, California, Texas, New York, Oregon and Washington state.
(International Conference, etc., 1993, 1994, 1995). Other literature, some of it now quite
dated, includes several partial surveys of American states, including birth certificate
provisions. (See Swartz, 1997, for references.) In the U.K., McMullan and Whittle (1994)
discuss these matters in practical detail.
Some American states have enacted statutes specifically providing for change of sex on
birth certificates in cases of transsexual gender transition. See, e.g., Cal. Health and
Safety Code §10475; La.R.S. 40:62; Or.Rev.Stat. §§432.290(5), 33.460, and Va. Code
§32.1-269.E. Not all have done so. Some of the other states interpret their statutes as
allowing for such record changes while others do not. The U.K. does not. (McMullan &
Whittle, 1994; Swartz, 1997).
We should note that in a different problem situation involving requests for new or
revised birth certificates, namely, in cases of legal adoption of a child, a positive
legislative response has been much more likely to be forthcoming. Such new/revised birth
certificates are often authorized. Of necessity these new/revised documents work to
conceal the fact of parenthood by adoption unless extraordinary court ordered access to
the original record is allowed, which is possible but unlikely. A misleading impression of
biology, but not of the psychological and social connection between child and adoptive
parent, is created. It is conceivable that this could lead to fraud or other harm, but on
balance the cause is regarded as a worthy one. Many legislatures make a pragmatic,
compassionate accommodation providing for such cases. See, e.g., N.Y. Public Health Law
§4138.
Validy of Marriage
a. Corbett
The Corbett case in the U.K. in 1970 has had an effect which lasts until this
day. Corbett v. Corbett (otherwise Ashley), 2 W.L.R. 1306, 2 All E.R. 33 (P.D.A.
1970), [1971] P. 83. The case illustrates for us an emphasis upon priority of abstract
principles coupled with a logical-deductive approach. Corbett also points up a
familiar confounding of medical concepts and terminology with legal policy questions, an
intermingling which receives comment later in this paper. Interestingly, the case was
decided by a judge who also had medical qualifications. This high publicity case involved
the validity of the marriage of April Ashley, a post-operative male-to-female transsexual,
registered at birth as male and raised as a male. The husband was Arthur Corbett, a
wealthy male who prior to the marriage knew the facts of this gender transition. The
marriage took place in Gibraltar in 1963. The couple were together after marriage for only
14 days, although their relationship before marriage had lasted about three years. Each
sought a declaration of nullity of the marriage, but for different reasons. The request of
Corbett was granted. An action for maintenance by Ashley in 1966 had led to the initiation
of this petition, in 1967, by Corbett challenging the validity of the marriage. Dr. Burou,
practicing in Casablanca, performed the sex-reassignment surgery in this case, including
the partial removal and conversion of male genitalia so as to construct an artificial
vagina. Dr. Burou declined to participate in this case in any way. Prior to surgery,
Ashley had been taking female hormones and living as a female. We omit from this
discussion portions of the opinion ruling that the marriage had not, in law, involved a
marital sexual consummation.
After reviewing the evidence, Ormrod, J., proceeded in a strictly deductive manner.
"It is common ground between all the medical witnesses that the biological sexual
constitution of an individual is fixed at birth (at the latest), and cannot be changed...
. [April Ashley's] operation, therefore, cannot affect her true sex." ([1970] 2 All
E.R. at 47)
Marriage "is essentially a relationship between man and woman... ." "The
question...becomes what is meant by the word 'woman' in the context of a marriage."
"Having regard to the essentially heterosexual character of...marriage, the criteria
must...be biological." Only a biological female is "a person who is naturally
capable of performing the essential role of a woman in a marriage." The law should
adopt the medical criteria of sex at birth, namely, "the chromosomal, gonadal and
genital tests, and if all three are congruent [at birth, as in this case], determine the
sex for the purpose of marriage accordingly, and ignore any operative intervention."
The court briefly referred to a number of logically puzzling inconsistencies which exist
if gender and gender identity were taken into account. "The results would be nothing
if not bizarre. ...Marriage is a relationship which depends on sex and not on
gender." ([1970] 2 All E.R. at 48).
Let us restate the major premises in a brief set of sentences. Marriage is a
relationship between a man and woman. Only a biological female has the natural capability
to perform the essential role of a woman in marriage. Biological sex as a female is fixed
by the time of birth, can usually be ascertained by medical inquiry in connection with
birth registration, and cannot be changed.
Minor premise: The individual calling herself April Ashley was identified at birth, by
genitals and gonads, as male, and more recently by chromosomal tests during the trial as
male.
Conclusion. "My conclusion, therefore, is that the respondent is not a woman for
the purposes of marriage but is a biological male and has been such since birth. It
follows that the so-called marriage of 10th September 1963 is void." ([1970] 2 All
E.R. at 49).
b. M.T. v. J.T.
We look, by way of contrast, at the case of M.T. v. J.T., 140 N.J.Super. 77, 355
Atl. 2d 204, cert. denied, 71 N.J. 345, 364 Atl. 2d 1076 (1976), a case decided by the
Appellate Division of the Superior Court of New Jersey, which--as with Corbett--involved
the validity of the marriage of a male and a post-operative male-to-female transsexual.
Again, there was no fraud as between the parties, the male having cooperated with the
female, the plaintiff here, in obtaining her sex reassignment surgery. This case arose in
connection with a legal suit by the wife for support, following the couple's separation
after two years of marriage.
Dr. Charles L. Ihlenfeld, a specialist in gender issues, had diagnosed the plaintiff as
a transsexual, and had been her medical doctor prior to, during, and after her
male-to-female sex reassignment therapy. He, as well as others, testified at the trial.
The marital couple had known each other, and had lived together, prior to the wife's
surgery. A year after her surgery they married in New York state, and then moved to New
Jersey. They lived together as husband and wife for two years and had intercourse (penis
in surgically constructed vagina) during that time. Thereafter, the husband left, stopped
financial support, and the wife sued for support.
At the trial, in spite of the defendant husband's objection that there was no lawful
marriage, it was ruled that the plaintiff was a female and that defendant was her husband,
and there being no fraud, the husband was ordered to pay $50 a week support. This result
was affirmed in a unanimous decision by the three judges of the appellate court, in an
opinion by Handler, J.A.D.
The court explicitly rejected the reasoning of the Corbett case. The opinion of
the court built upon law review commentary (especially Smith, 1971), and adopted a
functional approach to determining sex for purposes of legal marriage in cases involving
transsexual gender dysphoria. Where a discordance develops between anatomical sex at birth
and gender identity, and where that discordance is diagnosed as transsexualism by medical
authority and is corrected by irreversible medical therapy including surgery, and where
that corrective therapy brings with it sexual capacity to function for purposes of sexual
intercourse in the new gender role, then anatomy and subjective gender identity have been
harmonized in a way which the law will recognize for purposes of marriage.
The person with gender dysphoria is suffering. By taking actions which are
irreversible, medical therapy has helped relieve that suffering, and has brought about a
harmony of the physical and the psychological, which the law should recognize. "Such
recognition will promote the individual's quest for inner peace and personal happiness,
while in no way disserving societal interest, principle of public order or precept of
morality." (355 Atl. 2d at 211).
A brief analytic discussion of the medical model of transsexualism, upon which the
reasoning of this decision rests, appears later in this paper.
Discussion of the above Two
Approaches
a. Multiple angles of vision: multiple partial truths
It has sometimes been assumed in the medical profession that medicine is based upon
science and that, when it comes to medico-legal matters, the law--through the actions of
persons such as judges, legislators and administrative officials--should conform itself to
the universal truths of science as these truths are articulated by physicians. As a lawyer
who spent a number of the earlier years of his career focusing on problems of law and
psychiatry, especially the defense of insanity (irresponsibility) in criminal law, in
connection with the American Law Institute's Model Penal Code, I can well remember
vigorous representations by distinguished psychiatrists to this effect.
Often included in that view of medico-legal matters is the belief that, in any domain
covered by medical expertise, medical concepts and terminology should be given effect in
deciding medico-legal issues. It is argued that this is what an enlightened respect for
science requires. Thus the seemingly logical conclusion is drawn that words should not
mean one thing in modern medicine but something different in contemporary law. If that
incongruity were to occur then law would continue to be "a ass", as it was long
ago said to be by one of Dickens’ characters.
b. Medico-legal matters: "the fallacy of misplaced concreteness"
As said by Lon Fuller, "law is the enterprise of subjecting human conduct to the
governance of rules." (Fuller, 1969, p. 106). Hence law is concerned with governance,
dispute resolution, and legal justice. By way of contrast, medicine and natural science
are not primarily concerned with governance. In the formulation, and in the revision, of
medical and scientific terms and concepts it is not very likely that questions of legal
dispute resolution have been considered; certainly they have not been given overriding
importance. The angle of vision of medicine is different, and the objectives of medicine
are quite properly different from those of law.
In referring to the "fallacy of misplaced concreteness" the philosopher
Alfred North Whitehead (Whitehead, 1925) called attention to the fact that our
abstractions do not exhaust the richness of underlying reality. The fallacy consists in
mistakenly assuming that any particular set of abstractions actually consists of, and
exhausts, that reality and what can usefully or truthfully be said about it. Law deals,
inter alia, with human meanings, especially their significance for legal governance, legal
dispute resolution, and the achievement of justice under law in a free society. The
meanings of such things as human anatomy, physiology, and psychosocial functioning, for
purposes of particular kinds of legal governance and dispute resolution, are not
necessarily the same as medical and scientific meanings and significances. Different
angles of vision, taken with different purposes in mind, may lead to different pictures of
reality and may thus lead to different conclusions.
c. Sex at birth: fact or prediction?
Phyllis Frye of the International Conference on Transgender Law and Employment Policy
(ICTLEP) asserts that designation of sex on a birth certificate (usually done in the U.S.
by a physician) does not involve merely a statement of observed medical fact, as is
usually assumed. It is more accurately seen as involving an implicit prediction, usually
correct, based upon observed medical fact. (See Frye, 1995). The observed medical fact
concerns the structure of neonatal genitalia as falling within the range of typically male
or typically female. The prediction--so often true that its contingent and probabilistic
aspect has in the past not usually been recognized--is that, as this infant grows further
into childhood and then into adulthood, there will be a congruence between the anatomical
indicia of sex (male or female) already noted, and an emerging subjective gender identity,
yet to develop. One might therefore say, in cases of transsexual gender dysphoria, that in
filling out an infant's birth certificate the physician made a mistake, a mistake in
predicting the emerging congruence of psyche and soma. From this point of view revision of
legal documents of the transsexual, such as a birth certificate, involves not a sex change
but documentary correction of an error, an error in prediction. Ordinarily such
predictions are so trustworthy that for practical purposes they can be regarded as
statements of fact. It is only in unusual cases that such predictions turn out to be
wrong, and then--it is argued--they should be corrected without any special need for
apology.
From this different angle of vision the original record contains what is now revealed
to be a non-negligent misstatement. Pragmatically interpreted, we are thus merely dealing
with correction of a relatively uncommon type of official documentary error. This would
seem, then, no longer to present a direct conflict with the highly conservative position
stated in the Corbett case ([1970] 2 All E.R. at 47), and by others elsewhere, that
"The only cases where the term 'change of sex' is appropriate are those in which a
mistake as to sex is made at birth and subsequently revealed by further medical
investigation."
d. Two Competing Policies: Corbett and M.T.
We have seen a contrast in the Corbett and M.T. v. J.T. cases between
syllogistic deduction and a pragmatic groping for solutions, a compassionate accommodation
of legal policy to a novel, relatively uncommon problem. Moreover, the problem or dilemma
involves a medical condition which is not the fault of the person involved. Can the law be
adjusted to allow for a better possibility of human happiness in these relatively few,
relatively well-defined cases, without too greatly straining and impairing the
effectiveness and credibility of general principles of social ordering in the very large
number of cases not characterized by these anomalies?
To some observers it will seem that the purportedly logical conclusion involved in Corbett's
syllogism is foretold, a priori, in the shaping of the major premise. "Natural
sex" is defined in the major premise as something unchangeable. Problem solving by
such a method becomes, unfortunately, not an affirmation of science but rather an
unacknowledged tautology.
In the birth certificate situation the American Medical Association's Law Division
comment (Morse and Hall, 1968) clearly points up factors pushing in the direction of a
nuanced, flexible approach. Not all legislatures and courts will be persuaded.
Nevertheless, they should at least recognize the legitimacy of a careful pragmatism, no
more flying in the face of science than in the case of statutes authorizing new/revised
birth certificates in cases of adoption. Such legislators and jurists may then be of a
mind to give more serious consideration to applying to the legal problems of transsexuals
a mode of thought openly involving a rich and more complex interplay between facts,
principles, precedents, and humane, practical results.
A Recent Novel Approach: Otahuhu
Attorney-General v. Otahuhu Family Court, [1995] 1 NZLR 603 (New Zealand High
Court, Wellington, decided November 30, 1994; Ellis, J.) is an important decision, whose
meaning and whose rationale is--with due respect--quite unclear, and whose soundness
should be regarded as gravely in doubt. The fact that the High Court refused to follow Corbett
is part of what gives this decision international significance within common law
jurisdictions.
This was an application by the Attorney-General "on behalf of the Registrar of
Births, Deaths and Marriages for a declaration as to whether two persons of the same sex
genetically determined may by the law of New Zealand enter into a valid marriage where one
of the parties to the proposed marriage has adopted the sex opposite to that of the
proposed marriage partner through sexual reassignment by means of surgery or hormone
administration or both or by any other medical means." Otahuhu at 604.
Mr. J. C. Pike, a solicitor for the Crown Law Office (Wellington) appeared for the
Attorney-General and "informed the Court that the Registrar needed the position
clarified and preferred not to support any position." Ms. Vivienne Ullrich
"appeared as a friend of the Court and presented argument supporting an affirmative
answer, and so Mr. Pike argued to the contrary." Id. at 604. Ms.
Ullrich’s amended submissions were made part of the Court’s judgment. These
submissions make mention of medical evidence, but the detailed and specific extent of that
evidence, as opposed to the conclusions formulated by Ms. Ullrich, is not spelled out.
The Declaration of the Court was "that for the purposes of...[the relevant
statute], where a person has undergone surgical and medical procedures that have
effectively given that person the physical conformation of a person of a specified sex,
there is no lawful impediment to that person marrying as a person of that sex." Id.
at 607-608. The Court considered that "this somatic test is an adequate test." Id.
at 607. When the Registrar may be in doubt, "a medical examination can be arranged
and opinions obtained to enable the Registrar to reach his own conclusion." Id.
at 608.
In rejecting Corbett, among the cases which the High Court cited with approval
was M.T. v. J.T., New Jersey Appellate Division of the Superior Court, as well as
the decision of the New Zealand Family Court in M v. M, [1991] NZFL 337, and
Australia’s New South Wales Court of Appeal in R. v. Harris (1988) 17 NSWLR
158, a criminal case.
The opinion and submissions are devoid of any reference to disagreement within the
medical community, nor to variations in medical practice, with respect to diagnosis and
treatment of transsexualism, except for the following two points touched upon in the
submissions. Ms. Ullrich mentions the possible reluctance of female-to-male transsexuals
to attempt surgical phalloplasty, because of the surgical difficulties involved. Id.
at 614. The Declaration does not make any clear pronouncement about this. Ms. Ullrich also
makes an intriguing observation near the close of her submissions. "Many
[transsexuals] will not undergo surgery." Id. at 630. This seems to be part of
the argument in favor of granting a revised marital capacity to those who do undergo
surgery.
Although it may be perilous to attempt a brief summary of the rationale of this
decision, four features of the Court’s explanation in support of its Declaration
stand out. These are: (1) lack of social advantage in ruling otherwise, (2) bringing law
into conformity with factual reality once a person has undergone somatic change, (3) lack
of harm to anyone because of this ruling, and (4) consistency, and hence fairness; since
"society allows" people to undergo the medical and surgical somatic changes of
which the opinion speaks, "then it ought also to allow such persons to function as
fully as possible in their reassigned sex, and this must include the capacity to
marry." Id. at 607.
The Court appears to this writer to be strangely equivocal as to whether its decision
rests upon a medical model of transsexualism or rests upon a libertarian model of drastic
voluntary somatic modification achieved with medical and surgical help. Much of the
opinion seems to be attempting to refer to a medical model of transsexualism without using
a psychiatric vocabulary. Yet the test laid down by the Declaration is merely a test of
physical appearance, moreover, a test whose meaning and administration in practice seems
likely to be highly variable.
Bringing law into conformity with the facts, as mentioned by the Court, is a strange
argument since the "facts" are in conflict, which is the reason for bringing the
matter to court, and what is relevant is their legal significance. It may be that the
medical and surgical changes of which the Court speaks can only be obtained in New Zealand
from professionals who function according to the highest professional standards, including
standards concerning sex reassignment therapies. (See Standards of Care, 1990/1997.) The
Court does not discuss this. But elsewhere in the world, for a price, this is not always
the case. An amputation undertaken for good medical reason is properly regarded by law as
treatment. But without good medical reason, the same physical result should be regarded as
grotesque mutilation, and hardly fits within what the Court says "society
allows." With respect to causing harm, the Court does not seem adequately to have
considered the fact that some male-to-female transsexuals do not seek removal of male
gonads and genitalia, and some professionals now do not necessarily include this as part
of sex reassignment (Bockting & Coleman, 1992). The Declaration of the Court says, in
effect, that those male-to-female transsexuals who wish to have new marital capacity
should undertake this drastic bodily change whether they otherwise wish it or not;
similarly it would seem, female-to-male transsexuals should attempt surgical construction
of a phallus, even if undesired and useless for intercourse, if they are to have a revised
legal capacity to marry. Why? Will people truly be better off having this surgery which
medically they apparently don’t need? It is one thing to give legal recognition to
surgery which is necessary. It is another thing to create a legal inducement to have
drastic genital surgery which, in the cases in question, is at best optional, may be
unwanted, and may from a medical point of view carry substantial risk to the person
involved.
Finally, the Court’s argument about the implications which allegedly follow from
society’s "allowing" medical and surgical sex reassignment therapies seems
to an outsider, at least, to be unsound. The argument is an invitation to detailed state
regulation of medical practice. But the general understanding in the U.S. and the U.K. has
been that it is much better to leave these matters to professional medical self-governance
and to patient and physician decision-making within the broad framework of that
self-governance. There is no indication in the opinion that the prevailing general
understanding in New Zealand has been any different. Moreover, the Court itself makes it
clear that its ruling is restricted to marital capacity. Apparently the Court, now itself
inconsistent, wishes to make it clear that other legal incidents of male-female identity,
such as matters of "the criminal law, and the law of succession," need not be
dealt with in the same way. Id. at 607.
The Otahuhu Court speaks several times about transsexuals, as does the friend of
the court in her appended submissions. But the test laid down in the Court’s
Declaration does not do this. It speaks solely in terms of drastic body modification. The
question of why radical cosmetic surgery and body changes produced by massive doses of
hormones, by themselves and without subjective inquiry and competent medical testimony,
should result in new marital capacity is not answered by the New Zealand High Court. It
can be argued that separated from a sound medical rationale which legitimates and requires
such drastic somatic changes, we are talking about self-injury and mutilation. The fact
that a "compelling desire" may be involved should not blur the distinction
between gruesome self-injury or what some cultural commentators may perhaps call body art,
on the one hand, and what has been said to be desperately required medical and surgical
treatment, on the other hand. The Court fails to see that there is, and ought to be, a
profound difference between these categories with respect to legal policy and legal
results.
Medical Model and
Medical Rationale: A New Paradigm?
The legal policy of compassionate piecemeal accommodation with respect to the situation
of transsexuals, advocated here, finds its clearest and most elaborate official expression
in the New Jersey case of M.T. v. J.T. (1976). In this writer’s view, that
policy rests in major part upon medical assertions and medical facts of the kind found in
the testimony of Dr. Charles L. Ihlenfeld who testified for the plaintiff in that case,
and in similar contemporary medical literature. We refer to a series of elements
explicitly present, or present by reasonable implication, in the medical model put forward
there. These elements include: (l) a well-defined medical condition; (2) the ability of
medical experts to diagnose this condition in a trustworthy manner, and to distinguish it
from other conditions with which it must not be confused; (3) the clarity and fixity of
the individual’s subjective male-female sex identity, different from that indicated
by their genitalia and other bodily characteristics; (4) the necessity of hormonal plus
genital surgical sex reassignment in these cases, as the only known means of curing the
great psychological distress involved in this condition. Furthermore, it was asserted as
an implication of the medical model that (5) for a full cure to have a chance to occur,
society and the law would have to cooperate by accepting the person as female or male, in
accordance with this medically arranged reassignment; otherwise the beneficial effects of
psychological, hormonal and surgical treatment would be thwarted, and the individual would
not have the chance for a happy life.
Many of these elements now seem to be under substantial challenge, both by
distinguished professionals and also by persons who are transsexuals or who claim to speak
on behalf of transsexuals. (See, e.g., Bockting & Coleman, 1992; Bullough, 1997,
passim; Pauly, 1992.) To take but one prominent example, we may cite authors associated
with the University of Minnesota’s Gender Dysphoria Program and Program in Human
Sexuality, who speak about their comprehensive approach to the treatment of gender
dysphoria.
"A unique aspect of our treatment model is that it allows for individuals to
identify as neither man nor woman, but as someone whose identity transcends the culturally
sanctioned dichotomy."
(Bockting & Coleman, 1992, p. 144)
"Our approach moves away from trying to distinguish the ‘true
transsexual’...from the ‘nontranssexual applicant for sex reassignment’...
. Instead, we argue that a central purpose of treatment is to facilitate mental health and
identity development."
(Bockting & Coleman, 1992, p. 134)
One of these authors (Bockting, 1997, pp. 51, 48) writes of a "(trans)gender
paradigm shift" which is evidenced by "an emerging transgender
consciousness"; and there is much other literature congruent with this, which speaks
enthusiastically about revising and expanding our ideas about sex identities.
The above "comprehensive approach" with respect to treatment of gender
dysphoria, and a "transgender consciousness" which is found both in some
professional literature and in popular culture, may or may not be sound medically,
scientifically, socially. We do not attempt to assess that here. These views, which may or
may not be reflective of much wider professional opinion, certainly are very different
from what can be called the classical medical model of transsexualism, upon which the M.T.
decision rests.
We conclude by saying that persons concerned with legal policy need to take note of the
possibility that fundamental medical views, and the dominant medical consensus about
transsexualism (e.g., Standards of Care, 1990/1997), may have changed. The consensus may
have eroded. If so, as precedent, M.T. may stand on shaky ground, or even be
obsolete. Perhaps it may turn out to be the case that courts and legislatures will want to
join the "emerging transgender consciousness". How, in terms of legal result,
should they do this? Why?
References
Benjamin, H. (1966). The transsexual phenomenon. N.Y.:
Julian Press.
Bockting, W. O. (1997). Transgender coming out:
Implications for the clinical management of gender dysphoria. Pp. 48-52 in Bullough et
al., 1997.
Bockting, W. O., and Coleman, E. (1992). A
comprehensive approach to the treatment of gender dysphoria. Pp. 131-155 in W. O. Bockting
and E. Coleman, eds., Gender dysphoria: Interdisciplinary approaches in clinical
management. N.Y.: Haworth Press.
Bullough, B., Bullough, V. L., and Elias, J. (1997). Gender
blending. Amherst, N.Y.: Prometheus Books.
Finlay, H. A. (1996). Legal recognition of transsexuals
in Australia. Journal of Contemporary Health Law and Policy, 12: 503-533.
Frye, P. R. (1995). Remarks. In International
Conference, etc., 1995.
Fuller, L.L. (1969). The morality of law. Rev.
ed. New Haven: Yale University Press.
Green, R. (1992). Sexual science and the law.
Cambridge, Mass.: Harvard University Press.
Green, R., and Money, J. (Eds.). (1969). Transsexualism
and sex reassignment. Baltimore: Johns Hopkins University Press.
Hamburger, C., Stürup, G.K., and Dahl-Iversen, E.
(1953). Transvestism: hormonal, psychiatric, and surgical treatment. Journal of the
American Medical Association, 152(5), 391-396.
Holmes, O.W., Jr. (1881). The common law.
Boston: Little, Brown.
International Conference on Transgender Law and Employment
Policy. (1992). Proceedings from the First International Conference on
Transgender Law and Employment Policy. Houston, Tx: Phyllis Randolph Frye, Attorney,
Exec. Dir. ICTLEP, Inc.
________. (1993). Proceedings from the Second International
Conference on Transgender Law and Employment Policy. Houston, Tx: Phyllis Randolph
Frye, Attorney, Exec. Dir. ICTLEP, Inc.
________. (1994). Proceedings from the Third International Conference
on Transgender Law and Employment Policy. TRANSGEN ‘94. Houston, Tx: Phyllis
Randolph Frye, Attorney, Exec. Dir. ICTLEP, Inc.
________. (1995). Proceedings from the Fourth International
Conference on Transgender Law and Employment Policy. TRANSGEN ‘95. Houston, Tx.:
Phyllis Randolph Frye, Attorney, Exec. Dir. ICTLEP, Inc.
James, W. (1907). Pragmatism: a new name for some
old ways of thinking. N.Y.: Longmans, Green.
McMullan, M., and Whittle, S. (1994). Transvestism, transsexualism
and the law. London: The Gender Trust and The Beaumont Trust.
Morse, H.N., and Hall, G.E. (1968). Changing sex on
birth certificates. JAMA, 205(6), 289-290.
New York Academy of Medicine, Committee on Public Health.
(1966). Change of sex on birth certificates for transsexuals. Bulletin of the New York
Academy of Medicine, 42(8), 721-724.
Pauly, I. B. (1992). Terminology and classification of
gender identity disorders. Pp. 1-14 in W. O. Bockting and E. Coleman, eds., Gender
dysphoria: Interdisciplinary approaches in clinical management. N.Y.: Haworth Press.
Smith, D.K. (1971). Transsexualism, sex reassignment
surgery, and the law. Cornell Law Review, 56(6), 963-1009.
Standards of Care. (1990/1997). Standards of care.
Revised draft. January, 1990. Harry Benjamin International Gender Dysphoria Association.
Pp. 505-520 in Bullough, et al., 1997.
Swartz, L.H. (1994). Laws and sex. Pp. 347-354 in V.L.
Bullough and B. Bullough (Eds.), Human sexuality: an encyclopedia. N.Y.: Garland.
________. (1995a). Remarks, Documentation Workshop Report, New York
State Update. Pp. 153-157 in International Conference, etc., 1995.
________. (1995b). Legal responses to transsexualism: scientific logic
versus compassionate flexibility in the U.S. and the U.K. Paper presented at XIV Harry
Benjamin International Symposium, September 7-10, 1995, Kloster Irsee, Bavaria, Germany.
Pp. A-1 through A-16 (Appendix A), in International Conference, etc., 1995.
________. (1997). Law & transsexualism. Paper presented at
International Congress on Gender, Cross Dressing and Sex Issues, Center for Sex Research,
California State University, Northridge, California, February 23-26, 1995. Pp. 422-429 in
Bullough et al., 1997.
Whitehead, Alfred N. (1925). Science and the modern
world. Lowell lectures. N.Y.: Macmillan. |
