by Louis H. Swartz, Ph.D., LL.M., R.N.**

*Please address comments to author at: School of Law, State University of New York at Buffalo, Buffalo, New York 14260, USA. Telephone: (**)(1)(716) 645-3010; (Fax) (**)(1)(716)645-2064, e-mail: lswartz@acsu.buffalo.edu.

**Earlier versions of this paper were presented at The Third International Congress on Sex and Gender, Oxford, UK, 18-20 September 1998, and the 1998 Joint Annual Meeting of The Society for the Scientific Study of Sexuality and the American Association of Sex Educators, Counselors and Therapists, Los Angeles, California, USA, 11-15 November 1998.

Citation: Swartz L.H. Ph.D. LL.M., R.N. (1998) Legal Implications of the New Ferment Concerning Transsexualism. IJT 2/4, http://www.symposion.com/ijt/ijtc0604.htm

• Abstract
• Background
• Contributions of the Transgender Movement

• Transgender Liberationism Perhaps Increases Acceptance of Difference, But Does Not (And Cannot) Offer a Coherent Legal Program of Its Own
• Special Legal Provisions Concerning The Transsexual Phenomenon
• A Possible Future Legal Policy: Fewer (Or No) Special Legal Provisions Concerning The Transssexual Phenomenon
• Concluding Observations
    

Abstract

Legal policy in varying degrees favorably recognizing transsexualism, in common law countries, has rested upon a classical medical model which apparently has recently lost substantial support and has become much more diffuse. Special legal provisions concerning transsexualism may now be challenged: (1) as lacking a sound and persuasive rationale; (2) as making unfair distinctions among persons with nonstandard gender or sex identities who do, or do not, take various particular steps along a now disputed medical route toward personal adjustment. Although perhaps valuable in other ways, the current ferment of criticism here called transgender liberationism has not provided us with viable legal policy suggestions. The paper argues that, as we reexamine this area, a legal policy which does not attempt to make special provisions for transsexualism (no special legal recognition) deserves further serious consideration, as the least harmful and fairest policy in the long run.

I. Background

1. Mixed But Important Positive Legal Response To Transsexualism. During the period of slightly more than thirty years since Harry Benjamin’s The Transsexual Phenomenon (1966), transsexuals in the US have often been able to obtain change of documents such as birth certificates, drivers’ licenses, passports, etc., to reflect sex change which had already been achieved in part through medical therapies (hormonal, surgical) including sex reassignment surgery (SRS), or which was in process. Such therapies have been recognized as a legitimate part of medical practice and not been state regulated. Some gains have occurred in marriage, and employment (and other) discrimination protection. Legal progress has been mixed, however (Green 1992; Swartz 1997a, 1997b). Legal recognition has generally been less in the UK, except for the big difference of availability of SRS under the National Health Service. (With respect to some aspects of the legal situation in Continental Europe, see e.g., Will 1995). The Australian commonwealth has paralleled UK, but by central legal regulation South Australia has done much more than UK or US (Finlay 1996). Social deference to the medical model probably has also been crucial for favorable public response to transsexualism in many informal ways not adjudicated by law.
2. Classical Medical Model and Accompanying Legal Rationale. The medical model presented to courts, legislatures and administrative bodies has assertedly had the following features: (1) well defined medical condition; (2) trustworthy medical differential diagnosis, but dangerous and untrustworthy self-diagnosis; (3) clarity and fixity of contra-anatomical gender identity (male-female sex identity); (4) involving severe lifelong distress in absence of effective treatment; (5) sex-reassignment therapy including hormones and SRS as the only known effective cure for this distress, contingent, however, on societal and legal cooperation; (6) therapy involves permanent, probably irreversible bodily change. A final element speaks to medical, social and legal linkage: (7) the requirement, for cure, or habilitation or rehabilitation to be effective, that society and the law to cooperate; otherwise the person will still be deprived of the chance for a happy life (see e.g., Swartz 1997b).

The rationale for legal recognition of transsexualism might seem to be simple deference to medical authority, but has been much more complex. It can be characterized as (1) exceptional legal accommodation, not involving fundamental change in legal rules or social institutions, (2) in sympathetic, (3) narrowly defined cases, focusing on narrowly defined specific legal issues (piecemeal approach), (4) based upon medical evidence (classical medical model), (5) where little or no social harm or undermining of prevailing legal rules is thought to be likely (Swartz 1997b).

3. Classical Medical Model Questioned Or Challenged Outright, But Without Plausible Regard to Legal Aspects of Changes Suggested. We must note criticisms and an apparent lessening of previous professional medical (including psychological and other mental health professional) and consumer (transsexual and transgender community as consumers of professional services) consensus (Bullough, Bullough, and Elias 1997). The Harry Benjamin International Gender Dysphoria Association (HBIGDA) has experienced important dissensus in its efforts to formulate revised Standards of Care (SOC), although the 5th version of these Standards (SOC 5), has now been published (Levine et al. 1998). Providers associated with a university-based clinic have asserted a "paradigm shift" which recognizes a spectrum of genders, not limited to binary male or female, and affirms a unique transgender identity (Bockting 1997; Bockting and Coleman 1992). Other persons assert that one’s gender is whatever the person says it is, without restriction, and that transgendered people are entitled to a wide array of civil rights accordingly, including for example access to gendered spaces such as public toilets or publicly available locker rooms at gyms and swimming pools, protection against employment discrimination, and marriage rights (International Bill of Gender Rights 1995). They say, also, that access to SRS should be available based entirely upon self-diagnosis and request, if that is what the patient wishes (e.g., Nangeroni 1997). Others say that psychological screening and diagnosis for SRS and related therapies is invalid and corrupt, because it is an expensive and demeaning process wherein the client is pressured by circumstance to tell the professional what that gate-keeping professional wants to hear in accordance with the prevailing medical model, rather than engaging in honest, constructive self-disclosure. Many questions have been raised about the need for, and the appropriateness of genital surgery, especially for many female-to-males (FtMs), but also for male-to-females (MtFs) who don’t seek it. Some have suggested that no gender distinctions should be recognized. Others suggest that transsexualism should be completely "demedicalized".

Viable legal rationales have not yet been put forth to take care of the legal dimensions of the suggested changes referred to above.

On the other hand, so far as one can tell, most of the fairly quiet majority of transsexuals who have experienced gender transition, or are in the process, seem very much committed to conventional gender stereotypes; these seem to be part of their personal identity; but these persons want gender transition arrangements, including medical arrangements, to be improved and to be more financially accessible.

4. Classical Medical Model and Legal Rationale Built Upon It Have Been Weakened: What Should Law Do Now? Crucial facts confidently asserted by proponents and supporters of the classical medical model of transsexualism over much of the past three decades may now be open to serious question. The soundness of the classical medical model has been the basis of a favorable, or partially favorable, response to the legal claims of transsexuals.
     

II. Contributions of the Transgender Movement

A. Some Contributions Have Been Positive, Others Less Clearly So. Where the transgender movement – an activist cultural and political movement involving gays and lesbians, bisexuals, cross-dressers, transsexuals, intersex persons, and some academics in the area of cultural studies – may turn out to have been most successful may be in helping to persuade substantial numbers of people to be more tolerant of, appreciative and accepting of difference. I refer to gender and erotic differences, differences in bodily appearance and presentation of self, and in increasing the latitude open with respect to the roles we choose for ourselves, not only in personal relationships but in other social roles in the larger society. I think this movement may well turn out to be substantially successful, as the gay and lesbian rights movement has been, in largely decoupling gender identity issues from medical authority and from necessary, or prescribed, medical intervention. (Such social changes are attributable to many factors, and my account has necessarily been incomplete.) I do not foresee a utopia, but I see that much change of the kind described has already occurred and may well continue to occur.

For better or worse, the transgender movement can also take credit for the large role it has played in discrediting the medical model of transsexualism and in urging that the deference given to medical authority in this area should be substantially diminished.

Within this changed social picture I see the open acceptance of more variation, more personal choice, although, on this side of some postulated heaven, things will never be perfect. Most people want and need structure, although in widely varying degrees. We couldn’t drastically change a free society for the better by rapid and deliberate action even if we had a well-defined mandate to do so and wanted to do so, as some seem to want at least in their fantasies.

This changed social picture might also mean, however, a substantial readjustment in the thinking of some within the transgender movement as to what they ought to be doing, for example, so far as taking hormones and aiming toward various steps in SRS, unless these are the steps that they themselves prefer to take.

III. Transgender Liberationism Perhaps Increases Informal Acceptance of Difference, But Does Not (And Cannot) Offer a Coherent Legal Program Of Its Own.

No set of rules, legal or otherwise, can satisfy those whom I am calling transgender liberationists, because in matters pertinent to gender and sex identity they wish to have unfettered discretion (see, e.g., International Bill of Gender Rights 1995). Other people, it seems, are obligated to comply with the liberationists’ wishes, rather than defend their own contrary wishes. Transgender liberationists have rights, but no restraints, no duties (for example, respecting the wishes of others to define access to gendered spaces in a conventional, bounded way). Other people do not have rights which might conflict with the wishes of the transgender liberationists; these others, the great majority of the population, have only duties; these are the duties of acceptance, acquiescence, and compliance. The idea that each has a right to do their own thing, whatever that might turn out to be from minute to minute, applies only to members of the transgender liberationist group. Even there, no account is taken of profound differences, and thus conflicts, within that group itself. For example, the less vocal majority among transsexuals seem to value and wish to preserve conventional, if not extremely conventional, notions of female and male identity, which apparently are precious parts of their own psychological makeup. Others, more likely to be vocal, want to radically change our notions of gender identity, if not entirely eliminate the use and valuing of such cultural ideas. Can both happen at once?

Transgender liberationists don’t want workable sets of rules pertinent to gender and sex identity, I believe, because they are aware at some level that workable sets of rules cannot be devised which would satisfy them. Their demands are too different from existing social arrangements. Their demands are too diverse among members of their own group, especially if the conservative wishes of many of their constituents are to be taken into account.

IV. Special Legal Provisions Concerning The Transsexual Phenomenon

From a mixed nature-nurture-social construction point of view one could say that basic female and male identity elements seem to be grounded to some important degree in our evolutionary psychology. We are at a very early stage in having a dependable, detailed understanding of this. Cultural forces can play a very large role in shaping our ideas about gender, and even partially overriding inherited (genotypic) factors, but we have only a very modest understanding of this also. The matters discussed by Harry Benjamin and others concerning the transsexual phenomenon three and four decades ago now seem much less clearly defined than they did earlier. In some respects the asserted ability of physicians and related personnel to distinguish between persons "truly" suffering from what was then called transsexualism, and others not to be placed in this category, now seems to have been a much overstated ability. The category or set of categories is now much broader and much less clear. Patient self-definitions, and negotiations between patient, professional, and even other persons within the patient’s milieu, with respect to options and courses of action to be followed, now seem to play a much larger role than was suggested by an earlier model. That model seemed based on an analogy to the diagnosis of physical disease or the diagnosis and treatment of an intractable anomaly objectively discernible in the patient’s psychological makeup.

How much remains of the old model of transsexualism is hard to say, as is the question of what is present in SOC 5 that is still likely to be in SOC 6 or 7. We need to exercise a prudent caution with respect to claims of dependable medical knowledge upon which important legal decisions are to be based.

Taking guidance from the often overstated social constructionist point of view, we should also more carefully think about the role of law in constructing, that is to say influencing, the expectations, the beliefs and the courses of action, of people who have what we take to be nonstandard experiences of gender identity, whether these experiences are transient or long lasting. In particular, why should legal policy encourage these persons in the drastic step – perhaps the unneeded step or personally unwanted step – of taking contra-anatomical sex hormones or of undergoing various sex reassignment surgeries, in order to achieve various legally desirable outcomes, or to have a social identity which seems to have special legal approval? Legal policy itself not only has civic aspects and consequences but also has public health (including mental and physical health) consequences. What incentives are we providing to people, and why? Leaving other very important aspects of public policy to one side for the moment, is this really to the net benefit of the people directly involved and of others in the population who will then be guided accordingly? It is no answer just to say that this is what they want. The social constructionist position itself, plus ordinary social and legal commonsense unaided by recent theory, will raise the question as to whether the demand for physical sex-reassignment interventions (hormones, and especially, genital surgery) is not largely shaped by various cultural factors, including legal ones. Law, in part at least, may be helping to nurture the problem which then, with the aid of drastic means, it is imperfectly attempting to solve. That is not to say that distressing problems of gender identity are wholly a product of legal action. It is to suggest, however, that our knowledge is limited and, fortunately for the maintenance of a free society, law’s power is, and ought to be, limited. Leaving aside possible important damage to social institutions, in addition to helping a small number of transsexuals for whom drastic somatic reconfiguration is thought to be necessary in order to have any hope of a decent life, by the manner in which various legal recognitions are granted or withheld we may be encouraging many more persons to take hormones and to undergo surgery.

A unique difference between legal recognitions of certain other identities or identifying characteristics (anatomical sex, "race," religion, age, and sexual preference) and gender identity, is that for legal purposes we seem unable to know nonstandard gender identity apart from a fact finding which depends heavily upon the presence or absence of a "new" anatomy. This leads to the bizarre, and to me highly problematical situation, that the law promotes drastic anatomical change so that a person’s gender identity may receive legal recognition. This is so even though some or all of those anatomical changes may otherwise be "unnecessary," unwanted and unneeded in many of the cases in question. And persons with nonstandard gender identities who don’t take hormones or undergo surgery are legally treated differently. They don’t get equivalent legal recognition. An important reason for this, although some may disagree, is that we have no dependable means of knowing who they are. In addition, as has been argued, it may be that our binary legal classification of female and male doesn’t fit all people, and indeed can’t adequately fit all people. Again, some are being given legal recognition, but others through no fault of their own don’t get legal recognition unless they fit into a mold which we are told doesn’t suit them and is contrary to their wishes. The idea of perfect legal justice in this complex area turns out to be a snare and a delusion, and the source of a never-ending sense of aggrievement.

Finally, a fundamental question for legal policy arises as to the appropriateness of legal recognition of any prescriptive medical model as applied to this area of life. SOC 5 seems to refer to both hormone therapy and SRS as more in the nature of elective procedures rather than medically necessary, more in the nature of enhancing the patient’s positive well being (surely a worthy goal) and helping patients get what is going to be satisfying to them, than relieving suffering and alleviating or preventing serious depressions, preventing self-injury, etc. Although the model of rehabilitative medicine seems to be involved, I wonder how well that model fits what is presently called Gender Identity Disorder (GID) (see American Psychiatric Association 1994) and interventions under SOC 5 to aid such patients and clients in improving their life situation.

The model of elective cosmetic surgery seems at least as applicable. Patients who don’t like the shape of their nose or their breasts, mainly because of social standards of attractive appearance, go to aesthetic or cosmetic surgeons for help. Instead of working on society to change social viewpoints concerning the attractiveness of naturally occurring bodily variety, the plastic surgeons work on the patient’s body to conform it to social expectations. Many patients are pleased with the outcome, are happier, and are glad they had the surgery. More and more people seem to be having such cosmetic surgery. But as I understand it, most of this surgery is regarded as optional. It is a great boon perhaps, but does not involve treatment of a disease, disorder or medical disability.

It may be that a lot more that is constructive can and ought to be accomplished by increasing social awareness, appreciation, and acceptance of difference in the areas of genders and of sexualities, than can or should be attempted by formal legal means. In the earlier days of the transsexual phenomenon some may not only have overestimated the extent of our knowledge but may also have overestimated the extent to which law, as opposed to informal social education and awareness, can and should play a substantial role in dealing with what Benjamin called the transsexual phenomenon. Law may also have had a more important role to play in the early days than it does now.

V. A Possible Future Legal Policy: Fewer (Or No) Special Legal Provisions Concerning The Transsexual Phenomenon

It may be that we should have less law aimed at the special situation of transsexuals rather than more. One of the basic reasons for this is that in many important ways the special situation of transsexuals may not be as special, unique, well bounded, and well described, as was previously supposed. Quite the contrary. It may be the case that the variations involved are much too great for law to handle in any consistent manner, in accord with our basic principles of legal justice. It may also be that well intended legal interventions, although they may sometimes produce results pleasing to the people immediately involved (the retail effects), are pushing in the direction of undesirable and even harmful unintended effects on many other persons with nonstandard gender identities and aspirations (the possible wholesale effects).

If what I am speculating about were to occur, the most likely scenario would also include continued social and legal support, at the most fundamental level, for our historic male-female sex-gender identity classification scheme. Whether or not there might eventually be legal recognition of one or more "other" categories, or an "unspecified" category (for at least some legal purposes), I do not know. In this scenario, which would take time to be thought through and gradually gain acceptance, the emphasis would be placed on choice, and voluntary negotiation and adjustment – very imperfect though those necessarily are – rather than on special legal mandate, special legal regulation, special legal recognition on behalf of some but not others, special legal interference.

VI. Concluding Observations

I can see the possibility that, except for a small number of cases involving intractable, severe, and prolonged psychological distress, GID and transsexualism may disappear as categories of medical pathology. Transsexualism will have become "demedicalized" in the sense that it is seen as no longer requiring medical intervention. Transsexual persons, as such, may not be specially noticed by the law. For better or worse the historic building block of personal identity which we think of as basic male-female subjective identity will continue its very gradual social evolution. Social roles of females and males may change also.

Enlightened legal policy may in the future push for less legal response specially linked to transsexualism rather than more. The reasons would be at least twofold. One is the lack of any coherent persuasive rationale for special legal responses to transsexuals based on their gender identity, in the absence of a viable medical model and its credible administration and implementation by scientifically and professionally disciplined specialists. The other is a much greater awareness that legal interventions, although well intended, may well be producing more harm than good, and may almost inevitably be making invidious distinctions as to who is to be benefited by law and who – unfairly – is to be left unbenefited. In this legal area, the principle of first do no harm (primum non nocere) may be a salutary restraint upon efforts to turn psycho-social conflicts as to gender into a set of problems in rehabilitative medicine requiring that courts and administrative agencies endorse medical determinations as to how these problems should be solved.

In conclusion, I would hope that this paper will be seen as a useful preliminary contribution to an effort at reexamining current legal policy in the area of law and transsexualism.
  

American Psychiatric Association. 1994. Diagnostic and Statistical Manual of Mental Disorders. 4th ed. DSM-IV. Washington, DC: the Association.

Benjamin, Harry. 1966. The Transsexual Phenomenon. New York: Julian Press.

Bockting, Walter O. 1997. "Transgender Coming Out: Implications for the Clinical Management of Gender Dysphoria." Pp. 48-52 in Gender Blending, edited by B. Bullough, V. L. Bullough and J. Elias. Amherst, NY: Prometheus Books.

Bockting, Walter O. and Eli Coleman. 1992. "A Comprehensive Approach to the Treatment of Gender Dysphoria." Pp. 131-155 in Gender Dysphoria: Interdisciplinary Approaches in Clinical Management, edited by W. O. Bockting and E. Coleman. New York: Haworth Press.

Bullough, Bonnie, Vern L. Bullough and James Elias, eds. 1997. Gender Blending. Amherst, NY: Prometheus Books.

Finlay, Henry. 1996. "Legal Recognition of Transsexuals in Australia." Journal of Contemporary Health Law and Policy 12: 503-533.

Green, Richard. 1992. Sexual Science and the Law. Cambridge, MA: Harvard University Press.

International Bill of Gender Rights. 1995. (As adopted June 17, 1995, Houston, Texas, U.S.A.) Pp. viii-xi in Proceedings from the Fourth International Conference on Transgender Law and Employment Policy (TRANSGEN ’95), June 1995, Houston, TX, USA. Houston, TX: International Conference on Transgender Law and Employment Policy, Inc.

Levine, Stephen B. (Chairperson), George Brown, Eli Coleman, Peggy Cohen-Kettenis, J. Joris Hage, Judy Van Maasdam, Maxine Petersen, Friedemann Pfaefflin and Leah C. Schaefer. 1998. "The Standards of Care for Gender Identity Disorders [5th version]". International Journal of Transgenderism 2(2), April-June. (http://www.symposion.com/ijt/ijtc0405.htm)

Nangeroni, Nancy R. 1997. "SRS Tomorrow: The Physical Continuum." Pp. 344-351 in Gender Blending, edited by B. Bullough, V. L. Bullough and J. Elias. Amherst, NY: Prometheus Books.

Swartz, Louis H. 1997a. "Law and Transsexualism." Pp. 422-429 in Gender Blending, edited by B. Bullough, V. L. Bullough and J. Elias. Amherst, NY: Prometheus Books.

__________. 1997b. "Updated Look at Legal Responses to Transsexualism: Especially Three Marriage Cases in U.K., U.S. and New Zealand." International Journal of Transgenderism 1(2), October-December. (http://www.symposion.com/ijt/ijtc0201.htm)

Will, Michael R. 1995. "Legal Conditions of Sex Reassignment by Medical Intervention – Situation in Comparative Law." Pp. 75-101 in Transsexualism, Medicine and Law: Proceedings of XXIIIrd Colloquy on European Law, Vrije Universiteit Amsterdam (Netherlands), 14-16 April 1993. Strasborg, France: Council of Europe.