Legal aspects of transsexualism

A transsexual is a person who establishes a permanent identity with the opposite gender to his or her birth sex. The typical explanation is of a "man trapped in a woman's body" or vice versa. Many transsexuals have their bodies permanently or semi-permanently changed by hormonal and surgical means (see Sexual reassignment surgery). This raises many legal issues and aspects of transsexualism.

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 controversial question is the marriage of transsexuals, 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.

In England, it was decided in the case of Corbett v. Corbett that for the purposes of marriage a post-operative transsexual was to be considered to be of the sex they had at birth. This position may change as a result of the decision of the European Court of Human Rights in 2002 in Goodwin v. United Kingdom, and the resultant Gender Recognition Bill laid before the UK Parliament in November 2003.

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), have rejected it. Some Canadian courts have also accepted the decision, though the law in question appears to vary from province to province.

Several European countries recognize the right of transsexuals to marry in their post-operative sex. France, Germany, Italy, the Netherlands, Portugal, and Sweden all recognize this right.

In Rees vs. United Kingdom, the European Court of Human Rights refused to strike down the English law refusing to recognize sex reassignment surgery for legal purposes. The applicant argued that the English law as in violation of Article 12 of the European Convention on Human Rights, which guarantees the right of men and women to marry and form a family; the Court however held that the Article only protected "traditional" marriage between persons of opposite biological sex. The Courts decision was based on the doctrine of the margin of appreciation, by which State Parties to the Convention are given some discretion, especially in regard to controversial social matters such as transsexualism and marriage. 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. This is currently in progress: the Gender Recognition Bill was put before Parliament in November 2003 and is making progress. An interesting controversy that has been sparked since the Bill was published, particularly since the proposed law will not be restricted to those who have actually undergone surgery, concerns the issue of whether professional athletes should be allowed to compete under an 'acquired' gender and if so, what safeguards should be in place to prevent exploitation of the system.

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 Tennesee 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.

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

Table of contents
1 U.S. cases
2 Australian law
3 England

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.

Australian law

Re Kevin - validity of marriage of transsexual ([2001] FamCA 1074, online copy) 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 his sex changed on his birth certificate and other legal documentation; the question faced by the court was whether the change of sex on his birth certificate should apply for the purposes of family law. English law had decided, in the case of Corbett v. Corbett (1971), that sex reassignment would not be recognized for purposes of marriage. But Justice Richard Chisholm (the judge in this case) found that the decision of the English court did not bind Australian law, and upon considering the merits of the English decision found its logic to be faulty. Therefore Justice Chisholm concluded that, despite the English decision, post-operative transexuals are to be considered to have their reassigned sex for the purposes of marriage law, and that the applicant's marriage was valid.

England

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.


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