What are transsexuals?
Broadly speaking a transsexual is a person of either sex who is gender dysphoric. Simply put this means he or she is unhappy with their given sex or sexual identity, truly convinced that they have been born into the wrong body. 1 It is not difficult to appreciate that the constant anomaly between one’s psychological identity and one’s physical appearance leads to a great deal of anxiety and depression.
What is the origin of transsexualism?
In order to understand how transsexuals come into being it is helpful to have a basic grasp of genetic biology. Indeed, in Corbett v Corbett (1970) 2 Ormrod J. (a qualified medical doctor) went into the subject at some length in order to explain his reasoning why a man who had undergone hormone treatment and extensive surgery in order to transform himself into a woman remained a “biological male” and therefore could not legally marry another male.
Genes carry the instructions for making the thousands of chemical building blocks in the body and are responsible for the physical and psychological characteristics of a human being. They consist of a chemical called DNA (deoxyribonucleic acid) and are strung together to form long chains in structures known as chromosomes. The normal individual has 23 pairs of chromosomes in their body cells one of each pair being derived from each parent with the consequence of passing hereditary traits onto their offspring.
Normal chromosome pairs come in two configurations: XX (female) and XY (male). The physical gender of a foetus is established by the pairing of a single chromosome from both parents at the moment of conception. In the male the X chromosome is derived from the mother with the Y coming from the father. In the female an X chromosome is donated from both parents. However, it is not until later that physical differences based on the foetus' chromosomal gender develop. These differences are triggered by an infusion of hormones. At the same time, the foetus' corresponding gender identity (psychological gender) commences development.
It is a widely held theory that if the timing of this "hormonal shower" is off, or if the mix of hormones is somewhat faulty, a mismatch of mental and physical gender may occur creating a transsexual. 3 This mismatch, unlike hermaphroditism,4 has no visible effects. The transsexual appears to be a perfectly normal male or female with normal primary and secondary sexual characteristics. Because transsexualism cannot be detected visually or by any other means people often conclude that transsexualism is not a physical defect, but rather an emotional/psychological problem. It is a common but erroneous belief that with a little self-discipline, or with counselling, a transsexual person can act normally and accept their lot in life. 5
There is no cure, but there is treatment.
“... After decades of trying, psychiatrists have had to admit defeat in conquering this dilemma. In all the years that psychiatry has tried to "cure" transsexualism, not one case has responded positively and permanently. It wasn't until the 1950's that pioneering psychiatrist and endocrinologist Dr. Harry Benjamin decided to apply both of his specialities to the treatment of the transsexual. If the mind could not be changed to correspond to the body, he reasoned, then the body should be changed to match the mind...”6
The process involves a combination of hormone treatment and radical surgery. In the case of April Ashley, 7 a male to female transsexual, this consisted of a regular course of oestrogen to promote the growth of breasts followed by an intricate operation whereby the testicles and scrotum were amputated whilst the penis was turned in on itself to replicate a vagina. Stephen Whittle, a female to male transsexual, 8 followed a course of testosterone in order to promote the growth of facial hair and muscle development prior to enduring a hysterectomy and total mastectomy . He chose not to have phalloplasty - a penis constructed from tissue taken from the forearm - although the option remains and, properly done, would be quite convincing cosmetically. 9
Such operations are not undertaken lightly. Due to the fact that the procedure renders the subject incapable of taking part in sexual reproduction and is irreversible the patient is required to undergo rigorous psychological analysis (incorporating the Benjamin Standards) 10 in order to ensure that they are suitable for surgery. The National Health Service Gender Identity Clinics and, indeed, private clinics all insist that the patient has undergone what is termed the ‘Real Life Test.’ Simply put the RLT requires the preoperative patient to live and work full-time in their new gender to demonstrate that they can function socially and psychologically in the role The NHS specify that the RLT runs over a period of two years prior to genital surgery. 11
Should the reader be in any doubt as to the effectiveness of gender reassignment the author suggests that they take a moment to examine the picture of Caroline (Tula) Cossey on the following page 12 Although reassignment is not a total “cure” it is an effective treatment that can help prevent psychological damage to the patient and allow him or her to lead a happy and relatively normal life in their chosen gender.
IS THIS REALLY A MAN?
Caroline Cossey Mayfair, 25 (9). 1990. p.39
Transsexuals and the law.
The reader can be forgiven for thinking that the postoperative transsexual’s quest for gender recognition is complete upon removal of the sutures. Unfortunately, perhaps their greatest obstacle is not physical but judicial. Since the infamous case of Corbett v Corbett transsexuals have found themselves in the unenviable position of either being prevented from marrying or being in a marriage that can be considered void at the drop of a hat. The reason for this peculiar state of affairs is that Ormrod J. chose to base his determination of a person’s sex not on their (altered) physical and psychological characteristics but on their gonadal, genital and chromosomal sex at birth. 13 The respondent was declared to be a “biological male” despite having no male genitals remaining and consequently the “so-called” marriage was held to be void because in the UK the state of marriage is only recognized as a relationship between a man and a woman. However, just to be ultra sure that the marriage was void Ormrod J. held that even if the marriage were valid and the respondent were "... deemed a woman, she was physically incapable of consummating a marriage as intercourse using the artificially constructed cavity could never be ordinary and complete intercourse...”
Ormrod J. distinguished the latter argument from an earlier judgment in S.Y v S.Y (1962) 14 where a decree of nullity, through failure to consummate, had been refused on the grounds that a vestigial vagina could have been corrected by forming an artificial passage. Medically there would seem to be little difference between the extended vagina in S.Y v S.Y and the entirely artificial one in Corbett, just as there is little difference in any resultant act of intercourse. Furthermore the creation of an artificial vagina is not necessarily restricted to transsexual women. For example women suffering acute cases of vaginal atresia (absence or closure of a normal body orifice) may also require reconstructive surgery before they are able to have sexual intercourse. Are such people not real women? There appears to be scope to suggest that Ormrod J. may have misdirected himself regarding the issue of consummation. Nevertheless this decision still represents the position of the law almost thirty years on.
Is she or isn’t he?
Whilst postoperative transsexuals try to quietly live out their lives in their assumed gender they are constantly haunted not only by their past lives but also the threat of exposure with the consequent humiliation, invasion of privacy and subjection to bigotry that often accompanies it. 15 The inability of transsexuals to change their birth certificate to represent their physical gender means that they are obliged to carry their previous life around with them like a ball and chain; never quite allowed to forget who they once were. Whenever the production of this vital document is required it poses a potentially traumatic experience for its bearer. Procedures which are relatively straightforward for most of us such as, say, obtaining a passport, are, for the transsexual, accompanied by the embarrassment of having their private life dredged up and having to answer deeply personal questions.
In Cossey v UK (1990), 16 the applicant challenged the position of the Registrar of Births, Deaths & Marriages, on the basis of Article 8 17 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which guarantees the "right to respect for . . . private . . . life". Miss Cossey's argument was that she was forced to reveal a private detail about her life (her birth sex) whenever she had to produce her birth certificate. The court held that the interests of Miss Cossey in not revealing her birth sex did not place a positive obligation on the English government to change "the very basis of its system for the registration of births, which was designed as a record of historical facts"
Cossey also challenged the UK under Article 12 18 claiming that her right to marry was violated because of the ruling laid down by Corbett. The challenge failed. The court held that the UK requirement that marriage be between people of the opposite [birth] sex did not “restrict or reduce the right in such a way or to such an extent that the very essence of the right was impaired.” Thus the ruling in Corbett was a ‘national law’ within the spirit of Article 12.
The author questions this ruling because, as previously mentioned, Corbett clearly stated that a marriage would be void due to an inability to consummate it. Miss Cossey no longer had the genitals to enable her to consummate a marriage with a woman and hence any marriage she might enter would be instantly voidable. Even assuming for a moment that this were not the case and that a postoperative transsexual’s marriage to someone of the opposite “birth sex” was not voidable, say because of some fictitious ruling, it would certainly create an unusual situation regarding the pool of acceptable marriage partners. In the case of Miss Cossey she would be left with the choice of either marrying a female to male transsexual, 19 a woman with bizarre tastes in men or a lesbian. For a woman of heterosexual orientation this effectively means that the protection normally afforded by Article 12 is denied her. Indeed all transsexuals are similarly in limbo regarding the perfectly normal state of marriage. The options open to them are either a marriage under a form of sexual apartheid or in the form of an abnormal relationship.
Many transsexuals hoped that the case of B v France (1992) 20 which was also based on the arguments put forward in Cossey regarding birth certificates would finally put the matter to rest. Unfortunately it was not to be. Whilst the applicant was successful the case was distinguished from Cossey because the French birth certificate was designed to be constantly updated and is not limited to being merely a record of historical fact. “Furthermore, the refusal of the French authorities to change B's forename and the ubiquitous use the French INSEE, or Social Security number, which indicates the sex of the individual and is used on documents such as payslips and cheques, implicated a far stronger privacy interest of the French-born transsexual than that of the English-born Cossey. On balance, the small change to the system and the strong privacy interest meant that the French system had to change to protect B's Article 8 interests, whilst the English system could be maintained under the court's margin of appreciation doctrine” 21
This refusal to amend the bearer’s sex on birth certificates has been upheld as recently as 1996 in ex parte P & G (a judicial review case claiming that the Registrar General’s refusal was irrational) 22 although s/he is free to change his or her name and to change the sex designation on various official documents such as a driver's license and passport.
The plethora of court decisions that cling to the ruling of Corbett, based on twenty-eight year old medical knowledge, continues to result in misery, discrimination and alienation for transsexuals in all manner of diverse permutations.
Transsexuals and the family.
In X,Y,Z v UK23 Stephen Whittle (X) a female to male transsexual sought to register himself as the father of four children (Z) whom his partner (Y) had given birth to having been artificially inseminated with donated sperm. Section 28(3) of the Human Fertility and Embryology Act 1990 provides that where an unmarried mother gives birth through donor artificial insemination with the involvement of her male partner he shall be treated for legal purposes as being the father of the child. The Registrar General refused to register Mr Whittle as the father on the grounds that he was not legally a man. In the ensuing action before the European Court of Human Rights Mr Whittle argued that this was an interference with his right under Article 8 24 “to respect for ... family life.” In this instance Mr Whittle was not seeking to amend the registration of his sex on his birth certificate but simply to be registered as the father on his partner’s children’s’ birth certificate.
Whilst unanimously agreeing that Article 8 was applicable regarding the notion of "family life" 25 the court nevertheless held that:
There was a “... wide margin of appreciation since no common European standard with regard to the granting of parental rights to transsexuals or the manner in which a social relationship between a child conceived by AID and the person performing the social role of father should be reflected in law. The Community has an interest in maintaining a coherent system of family law prioritizing the best interests of a child and it was unclear whether the amendment sought would benefit children conceived by AID or have implications in other areas of family law - in these circumstances the State may justifiably be cautious in changing law. The disadvantages suffered by the applicants do not outweigh the general interest given the facts of the case, in particular that X was not prevented from acting as Z's father in the social sense and could, with Y, apply for joint residence order in respect of her.”
Roughly translated this means that the so-called “margin of appreciation” is justified by the concept that, up to a point, the individual nation state is in a better position than an international court to state what moral standards should apply in any particular country. In the UK that means that, just to be on the safe side and to avoid complications in other areas of family law, Mr Whittle can be a “social father” to his partner’s children but not a “legal father”.
Once again transsexuals felt they had been badly let down by the ECHR. As Christine Burns 26 put it:
“This is an astonishing get-out clause for a court which is being asked to act as arbiter between an aggrieved citizen and their state. It's like complaining to the teacher that the school bully has stolen your sweets and hearing the teacher decide that, in the playground, the bully is better equipped to judge whether this was right or not! Some defender of justice!” 27
The implications are wider than simply a transsexual’s desire to be known as the legal father. Perhaps the issue was really about Z and the right that she, her brother and two twin sisters ought to have to a secure future. For if their mother were to die then the man who they know as "daddy" would, at present, have less of a say in their care and upbringing than the social services. He cannot approve medical treatment for them. He has no ‘official’ say in their schooling. Were he to die intestate his children would not automatically inherit from him. Mother is regarded, bizarrely, as a single parent by the DSS. All of the above must play on the minds of the parents. The author contends that the court failed to act within the spirit of Article 8.
Transsexuals and employment.
The [dismissal]case of P v S and Another (1996) 28 was something of a first for transsexuals in that it held that they were afforded the same protection from sexual discrimination in the workplace as anyone else under the Articles of the Equal Treatment Directive 29 stating: “ To tolerate such discrimination would be tantamount to failure to respect the dignity and freedom to which he or she is entitled and which the Court had a duty to safeguard” Unless, that is, dismissal “could be justified under Article 2(2)...” 30
Just such justification was held to be the case in M v Chief Constable of West Midlands Police (1996) 31 which held that the police could lawfully derogate from the Directive and refuse to hire a transsexual. The Chief Constable’s argument was that M wouldn’t be able to legally perform searches under PACE 32 which require them to be carried out by members of the same sex. He successfully maintained that M’s birth certificate clearly stated that she was a “birth male” and thus could only legally search male suspects. However, it was envisaged that male suspects would use this as an excuse to claim that their rights under PACE were being violated and that this would create unnecessary problems.
This was an interesting case because of the double standards and contradictions that it raised. On one hand a male to female transsexual suspect is obliged to undergo the indignity of being searched by a male policeman. Yet a transsexual (male to female) policewoman cannot search a male or female suspect. Furthermore UK governments have long maintained that the birth certificate is simply a document of “historic record" and does not define one’s legal sex; 33 yet it was because M was asked to furnish this document during her application for employment that her application was turned down.
Certain and consistent?
The best that one can say about M is that it was at least in line with R v Tan (1983).34 In that case it was held for the “desirability of certainty and consistency” within the criminal law that sex is defined by one’s birth certificate. The reader might reflect on the implications that this has for transsexual prisoners. As the law currently stands prisoners who have all the traits of the gender that they have assumed are placed in detention with prisoners of the opposite gender purely on the basis of sharing the same chromosome configuration. As one can imagine this could have serious consequences for the male to female prisoner placed in the confines of a male prison.
Hardly!
Conversely female to male transsexual prisoners placed in female prisons pose the same threat considered above to female inmates. How is it that the arguments upheld in M regarding the possible allegations of impropriety following the intimate search of suspects by a transsexual police/man/woman do not extend to their rights following conviction? It seems to the author that the law is anything but certain or consistent.
Conclusion.
The author feels that a great deal of time, money and effort seems to be invested in maintaining postoperative transsexuals in a state of sexual limbo regarding their full integration within society. Furthermore the rights of the transsexual and their family are consistently ignored or denied. Often they lack the basic protection of the law that every other citizen, regardless of their character, are automatically afforded. Are they really asking so much to be accepted for themselves and to participate in the roles that the rest of society take for granted? Perhaps it is about time that Parliament took on board the thoughts of the so-called ‘man on the Clapham omnibus’ regarding acceptance of their assumed gender?
What are the thoughts of the man on the Clapham omnibus?
In order to determine how ordinary members of the public felt about transsexuals and their acceptance of them in their assumed gender roles the author carried out the following survey. One hundred people were asked to complete the questionnaire appearing on page three. 35 The results are to be found within the table on page four whilst the significant findings are expressed below.
100% of those surveyed believed transsexuals should be fully accepted in their modified gender in the eyes of the law. 87% believed their birth certificates should be amended to reflect their assumed gender. 76% believed they should be allowed to marry as their assumed gender. 90% believed the law as it stood was absurd. The findings are most encouraging and suggest that the public at large are quite happy to accept postoperative transsexuals who have made the commitment to their preferred gender with very few reservations. Perhaps in the not too distant future the law will become equally as tolerant of transsexuals allowing them to simply get on with their lives free from discrimination based on scraps of paper that refer to a person who never really existed.
