Legal aspects of transsexualism
Encyclopedia
Transsexual people are those who establish a permanent identity with the gender
opposite to the gender identified at birth. As most legal jurisdictions have at least some recognition of the two traditional genders at the exclusion of other categories, this raises many legal issues and aspects of transsexualism. Most of these issues tend to be located in what is generally considered family law
, especially the issue of marriage
, but also things such as the ability of a transgendered person to benefit from a partner's insurance
or social security
.
The degree of legal recognition provided to transsexualism varies widely throughout the world. Many countries now extend legal recognition to sex reassignment by permitting a change of gender on the birth certificate
. Many transsexual people have their bodies permanently changed by surgical means or semi-permanently changed by hormonal means (see Sex reassignment therapy
). In many countries, some of these modifications are required for legal recognition. In a few, the legal aspects are directly tied to health care; i.e. the same bodies or doctors decide whether a person can go ahead, and the subsequent processes automatically incorporate both matters.
The amount to which non-transsexual transgender
people can benefit from the legal recognition given to transsexual people varies. In some countries, an explicit medical diagnosis of transsexualism is (at least formally) necessary. In others, a diagnosis of gender identity disorder
, or simply the fact that one has established a different gender role, can be sufficient for some or all of the legal recognition available.
give transsexual people the right to at least change their first name, most of which also provide a way of changing birth certificates. Several European countries recognize the right of transsexuals to marry in their post-operative sex. France
, Germany
, Italy
, Spain
, the Netherlands
, Turkey
, Poland
, Portugal
, Romania
, Denmark
, Finland
, Sweden
, Norway
, and the United Kingdom
all recognize this right. The Convention on the recognition of decisions regarding a sex change provides regulations for mutual recognition of sex change decisions and has been signed by five European countries and ratified by Spain and the Netherlands.
The first milestone sentence in the case of gender shifting was given by Warsaw's Voivode Court in 1964. Court reasoned that it possible in face of civil procedure and act on civil registry records to change one's gender after the genital reassignment surgery was conduced. In 1983 the Supreme Court ruled that in some cases, when the attributes of newly-formed sex are predominant it is possible to change one's gender even before the genital reassignment surgery.
ruled that the certificate change was legitimate for the purposes of inheriting a title, a decision later upheld by the Home Secretary
. However, the case was held secretly and in a Scottish court, and there was not a publicly reported case in an English court until 1970. That year, in the case of Corbett v Corbett
, Arthur Corbett attempted to annul his marriage to April Ashley
on the grounds that transsexuals were not recognised in English law. It was decided that, for the purposes of marriage, a post-operative transsexual was considered to be of the sex they had at birth.
This set the precedent for the coming decades. People who thought they had existing valid marriages turned out not to, and the previous unofficial changing of birth certificates was stopped.
Transsexual people were able to change their names freely, to get passports and driving licences altered, to have their National Insurance
details changed, and so forth. A piece of legislation was also introduced to ban discrimination against transsexual people for employment.
In the 1980s and 1990s the pressure group, Press for Change, helped people take several cases to the European Court of Human Rights
about this. In Rees v. United Kingdom, 1986, it was decided that the UK was not violating any human rights, but that they should keep the situation under review. In the 2002 case Goodwin v. United Kingdom, it was decided that the rights to privacy and family life were being infringed.
In response to its obligation, Parliament
passed the Gender Recognition Act 2004
, which effectively granted full legal recognition for transgender people.
In contrast to systems elsewhere in the world, the Gender Recognition process does not require applicants to be post-operative. They need only demonstrate that they have suffered gender dysphoria, and have lived in the 'acquired gender' for two years, and intend to continue doing so until death. There are strict rules governing the requirements for granting of a certificate; more details may be found on the GIRES website.
Health Authority has the right to deny treatment for gender dysphoria as a matter of policy. However, effective access to treatment varies wildly depending upon the policies of the individual Gender Identity Clinics, with some taking a more relaxed approach than others. Transsexual people frequently characterise some centres as arrogant and controlling. It is not uncommon for a minimum of 24 months of real life experience
to be required before a surgical referral is permitted, and many GICs will force patients to transition before they are allowed access to hormone replacement therapy.
has a law that regulates the change of first names and legal gender. It is called "Gesetz über die Änderung der Vornamen und die Feststellung der Geschlechtszugehörigkeit in besonderen Fällen (:de:Transsexuellengesetz – TSG)" (Law about the change of first name and determination of gender identity in special cases (Transsexual law – TSG)).
In Germany, as in many countries whose law is at least partly based on the Napoleonic Code
, the first name has to be gender-specific. One can either obtain a change of name alone, and proceed later with a change of legal gender, if possible or desired, or obtain both in a single legal procedure.
For both, two official expert opinions have to be presented to a court stating that:
The change of name may be revoked if the person marries and then fathers or gives birth to a child that was conceived after the name change became valid.
For the change of legal gender, it was also once required that the person
these requirements were finally removed in a 2011 revision of the TSG.
Originally, the law stated that neither change of name nor legal gender were available for people under 25 years of age. This condition has been declared void by the courts, and today there is no minimum age. Until 2008, it also stated that the person had to be unmarried.
The TSG applies only to German citizens; there are exceptions only for non-German citizens with very specific legal status, such as stateless people living legally in Germany.
Several court decisions have further specified several matters. For example, a person with only a name change has the right to be called "Herr" or "Frau" (Mr. or Mrs.) according to their first name, not their legal gender; similarly, documents have to be issued reflecting the actual gender identity, not legal gender. Job references, certifications and similar from the time before the change of name may to be reissued with the new name, so effectively there is no way for a new employer to learn about the change of name and/or gender. Also, people with only a name change do not have to divulge their legal gender to employers.
In the last couple of years, the TSG has come under intense criticism not only from the trans community, but also some medical caregivers. This criticism is directed against both the way the law is applied, especially concerning the way "expert opinions" are done, and the wording of the law itself.
Particularly the following parts of the TSG are criticised:
The professional retainers of the court (doctors, psychiatrists, psychologists, etc.) can be very expensive. Some professionals wish to see their theories tested in court, including intelligence and/or various psychiatric disorders. This results in assessments which are lengthy (several months are not unusual), costly and humiliating.
Many professionals also consider only those people as transsexual who live in a gender role that the professional considers "appropriate"– resulting in problems for example for transwomen who sometimes do not wear skirts or transmen with hair that is considered "too long". Especially lesbian transwomen and gay transmen can encounter problems here.
Since the courts usually impose their retained professionals on the applicants there is no way to choose one's own professional witnesses. Not every expert who is asked for an expert opinion however will work according such questionable "guidelines". Since there are many regional differences, there is a certain amount of "trans-tourism"; people (at least officially) moving to the circuit of courts who are known to appoint "liberal" or "reasonable" experts. However, the general problems with "professional opinions" have led to demands to abandon these completely or at least to lower the required number to one and to lower the formal requirement for it. Many of this criticism applies also to "expert opinions", "letters of recommendation" or similar papers regarding medical procedures. The same problems with hired professionals of the court occur in many other countries.
In July 2008, the Federal Constitutional Court
in Karlsruhe
ruled that a transsexual woman who transitioned to female after having been married to a woman for more than 50 years could remain married to her wife and change her legal gender to female. It gave the legislature one year to effect the necessary change in the relevant law. http://www.thestar.com/News/World/article/465913
" has to be shown in each particular case. In some cases, this can lead to lengthy procedures, although this is not always the case. However, the less "medical necessity" can be shown, the more difficult it gets to get coverage. This is particularly true for surgeries like Facial Feminization Surgery
, but also occasionally for more basic matters as the construction of a neo-clitoris.
The regulation of coverage of medical costs is formally completely unrelated to the TSG; in practice, there can be overlaps, for example with expert opinions.
, it is legal for transgender people to change their first name to reflect their gender identity, based on personal choice. Since 1996, it is also possible for someone who has gone through sex reassignment surgery
to change their legal gender in order to reflect their new (post-operative) biological sex. Transsexuals then have the right to marry in their post-operative sex.
, it is not possible for a transsexual person to alter their birth certificate. A case was taken in the High Court by Dr. Lydia Foy
in 2002 which saw her case being turned down as a birth certificate was deemed to be an historical document. It is currently possible for anyone to undertake a change of name either through common usage or through a deed of change of name
.
Dr. Foy had taken new proceedings to the High Court relying on the decisions of the European Court of Human Rights
in the Goodwin and 'I' cases. Her application was heard between 17 and 26 April 2007 and judgment was reserved. Judgment was given in the High Court on 19 October 2007. The Judge held that the Irish State had failed to respect Dr. Foy's rights under Article 8 of the European Convention on Human Rights
by not providing any mechanism for her to obtain a new birth certificate in her female gender. He indicated that he would grant a declaration that Irish law in this area was incompatible with the Convention. He also said he would have found that her right to marry under Article 12 of the Convention had been infringed as well if that had been relevant. On 14 February 2008 the Judge finally granted a declaration that sections of the Civil Registration Act, 2004 were incompatible with Article 8 of the Convention. This was the first declaration of incompatibility made under the European Convention of Human Rights Act passed in 2003. The written judgment is so far only available in an uncorrected form.
The Government had two months within which to appeal to the Supreme Court. If they do not, the Taoiseach
(Prime Minister
) must report to the Oireachtas
(Parliament
) the making of the declaration and will have to indicate what measures his government proposes to take to comply with Ireland's obligations under the European Convention. In April 2008 the Government indicated that it would be appealing the High Court ruling to the Supreme Court. The Government has since dropped its appeal and will likely introduce leglisation recognising one' new sex following sex reassignment surgery. The junior party in government, the Green Party
wished to have psychological gender identity recognised while the main party in government, Fianna Fáil
wished to have medical gender identity recognised only.
In Northern Ireland
, the Gender Recognition Act 2004
of the United Kingdom
applies, so a name and gender change on one's birth certificate is now possible.
forbids discrimination on the basis of sex, gender and sexual orientation (amongst other grounds). The Constitutional Court
has indicated that "sexual orientation" includes transsexuality.
In 2003 Parliament
enacted the Alteration of Sex Description and Sex Status Act, which allows a transgender person who have had gender reassignment surgery, to apply to the Department of Home Affairs to have the sex description altered on their birth record. Once the birth record is altered they can be issued with a new birth certificate
and identity document
, and are considered "for all purposes" to be of the new sex.
The specific definition of gender reassignment surgery in this Act refers to reassigning a person's sex by changing physiological or other sexual characteristics,and includes any part of such a process. Thus the transgender person is not required to have had genital surgery in order to have the sex description altered.
The application must be accompanied by:
Intersexed persons may equally apply to the Department of Home Affairs (South Africa) to have the sex description altered on their birth record. The application has to be accompanied by reports stating the nature and results of any procedures carried out, if any. The act indicates that the Intersex person is not obliged to have had hormonal, surgically or medical intervention. The application needs to be accompanied by reports from a medical practitioner indicating that the person is intersex as well as a report from a qualified psychologist or social worker corroborating that the applicant is living and has lived stably and satisfactorily,for an unbroken period of at least two years, in the gender role corresponding to the sex description under which he or she seeks to be registered.
Once the birth record is altered a new birth certificate
and identity document
can be issued, and are considered "for all purposes" to be of the new sex.
, which reserves to the states (or to the people) all powers not assigned to the federal government, the legal classification of characteristic sex is state jurisdiction in the United States. The principle is generally extended to the District of Columbia and U.S. territories, though the federal government has power to overrule any decision those non-state entities might make. Thus, the legal sex of a transsexual (as well as a transsexed or intersex) individual in the United States does not have one answer but 56 answers – one for each state, the District of Columbia, and the five inhabited territories (American Samoa, Guam, the Northern Marianas Islands, Puerto Rico, and the US Virgin Islands).
unanimously approved a new law that enables transsexual people to change their legal sex. It is called “性同一性障害者の性別の取扱いの特例に関する法律” (Act on Special Cases in Handling Gender for People with Gender Identity Disorder) The law, effective in 2004, however, has controversial conditions which demand the applicants be both unmarried and childless. On 28 July 2004, Naha Family Court, Okinawa Prefecture, allowed an official sex-change of a transsexual woman, generally thought of as the first court approval under the new law. Despite the fact that sex reassignment surgery is mandatory for a legal sex change, it is not paid for by national health insurance, or hormone replacement as well.
In 2006, the Supreme Court of Korea ruled that transsexuals have the right to have their legal papers altered to reflect their reassigned sex. A transwoman can be registered, not only as female, but also as being 'born as a woman'.
While same-sex marriage is not approved by South Korean law, a transgender woman obtains the legal status of 'female' automatically when she marries to a man, even if she has previously been a 'male' on papers.
, and granted a declaration that she is a female. However, in 2005, in another case, the court refused to amend the gender of a transsexual in the identity card and birth certificate
. Both cases applied the United Kingdom case of Corbett v Corbett
in defining the gender.
Justice Leonardo Quisumbing
on September 12, 2008, allowed Jennifer Cagandahan, 27, to change both his birth certificate
, gender and name from Jennifer to Jeff, to male: “We respect respondent’s congenital condition and his mature decision to be a male. Life is already difficult for the ordinary person. We cannot but respect how respondent deals with his unordinary state and thus help make his life easier, considering the unique circumstances in this case. In the absence of a law on the matter, the court will not dictate on respondent concerning a matter so innately private as one’s sexuality and lifestyle preferences, much less on whether or not to undergo medical treatment to reverse the male tendency due to rare medical condition, congenital adrenal hyperplasia
. In the absence of evidence that respondent is an ‘incompetent’ and in the absence of evidence to show that classifying respondent as a male will harm other members of society ... the court affirms as valid and justified the respondent’s position and his personal judgment of being a male." Court records showed that – at 6, he had small ovaries; at 13, his ovarian structure was minimized and he had no breasts and did not menstruate. The psychiatrist
testified that "he has both male and female sex organs, but was genetically female, and that since his body secreted male hormones, his female organs did not develop normally." The Philippines
National Institutes of Health said "people with congenital adrenal hyperplasia lack an enzyme
needed by the adrenal gland
to make the hormones cortisol
and aldosterone
.
This, however, applies only to cases involving congenital adrenal hyperplasia and other intersex situations. The Philippine Supreme Court has also ruled that Filipino citizens do not have the right to legally change their sex on official documents (driver's license, passport, birth certificate, Social Security records, etc.) if they are transsexual and have undergone sexual reassignment surgery. The Court said that if the man, now anatomically a female, were to be allowed to legally change his sex it would have “serious and wide-ranging legal and public policy consequences,” citing the institution of marriage in particular.
was Australia's first legal transsexual with the Births, Deaths and Marriages Dept. (NSW Government). As cited by (18 June 1987 – Australian Telegraph Newspaper.) This was the first time in Australian law history that an adult transsexual was permitted to change their birth certificate to a different sex and soon afterwards the passport law also changed allowing transsexuals to be issued passports with the new sex depicted.
Australia is now one of only a few countries where legal status of the new sex following sex affirmation surgery is granted via a new full birth certificate. Birth certificates are within the jurisdiction of the states, whereas marriage and passports are matters for the Commonwealth. All Australian jurisdictions now recognise the affirmed sex of an individual after surgery unless the person is married.
([2001] FamCA 1074) is a groundbreaking judgment of the Family Court of Australia
, concerning both transsexualism as a phenomenon, the human rights of those who experience transsexualism and the right of people who have experienced transsexualism to enter into a legally valid marriage.
Kevin, an affirmed male, married Jennifer before the case started. Prior to the marriage Kevin had affirmed his male sexual identity by underging hormonal and other sex affirmation treatment; including a double mastectomy and full hysterectomy but not the construction of a phallus. His legal sex had been changed on his birth certificate and other documentation and since his affirmation of his male sex (including as at the time of his marriage and the trial) he had lived in the Australian culture and community as a male.
When the Attorney General for the Commonwealth of Australia advised the couple through his department that in his considered opinion their marriage was not a legally valid one and that the couple (or at least Kevin) was liable to be prosecuted and possibly imprisoned, the couple sought the legal advice and representation of Australian lawyer Rachael Wallbank, herself an affirmed female, and commenced proceedings in the Family Court of Australia against the Attorney General for the Commonwealth of Australia to have their marriage declared legally valid.
The question to be determined by the court was whether Kevin was a man for the purposes of the marriage law of Australia and, hence, whether the marriage ceremony he had undertaken with Jennifer was a valid one. Further, at the time of the trial the couple had one child as a result of approved assisted technology. Their second child was born at the time of the hearing of the appeal proceedings. English law had previously decided, in the case of Corbett v Corbett
(1971), that sex affirmation including genital reassignment/rehabilitation surgery (then and sometimes still geniticentrically called "Sex Reassignment Surgery") would not be recognized for purposes of marriage. That decsison had been generally followed throughout the world; including the United States of America. Justice Richard Chisholm (the judge in Re Kevin) found fault with both the legal bases and internal logic of this decision and held it did not bind or represent Australian law.
Significantly, Justice Chisholm found that the extensive international and Australian expert evidence in Re Kevin did not support the primary "factual" proposition in the Corbett decision that a causal (and hence legal) distinction could and should be made between the natural variations in human sexual formation sometimes called "intersex" (in Corbett and other similar decisions said to have a biological causation) and transsexualism (in Corbett and other similar decisions said to be a psychological disorder). Chisholm J found that on the balance of expert evidence, both as presented in Re Kevin and generally in cases throughout the world dealing with the issue, no such factual distinction was possible and that transsexualism was an example of natural intersexual diversity in human sexual formation and not a pychological disorder or illness.
Justice Chisholm stated that to determine a person's sex for the purpose of the law of marriage in Australia all relevant matters need to be considered, including: the person's biological and physical characteristics at birth (including gonads, genitals and chromosomes); the person's life experiences, including the sex in which he or she is brought up and the person's attitude to it; the person's self-perception as a man or woman; the extent to which the person has functioned in society as a man or a woman; any hormonal, surgical or other medical sex affirmation (including genital reassignment/rehabilitation) treatments the person has undergone, and the consequences of such treatment as well as the person's biological, psychological and physical characteristics at the time of the marriage, including (if they can be identified) any biological features of the person's brain that are associated with a particular sex.
His Honour stated that it is clear from the Australian authorities that "post-operative transsexuals" will normally be members of their affirmed sex. Holding that the sex of a person for the purposes of marriage is their sex at the time of the marriage, the judgement found Kevin to be a man within the ordinary everyday meaning of the word in Australian life and declared the marriage between Kevin and Jennifer to be valid. The Attorney-General appealed.
The Full Court of the Family Court, upholding the decision at first instance http://www.familycourt.gov.au/judge/2003/pdf/attorney.pdf, determined that the reasoning of the Family Division of the UK High Court in W v W, an intersex marriage case, http://www.pfc.org.uk/legal/w-v-w.htm was a correct statement of the law in Australia and that people with transsexualism, like others with intersex conditions, should be able to choose their sex, affirm it and marry as a member of that sex.
Re Kevin has been subsequently extensively quoted and relied upon in international jurisprudence (including the in the United States of America and in the European Court of Human Rights) concerning the civil and human rights of people who experience transsexualism; including young people with transsexualism who are still regularly deprived of their right to affirm their innate sex without being punished by family and culture, change their legal sex in order to make it intelligably consistent with their affirmed/lived sex as well as being able to freely access medically approved sex affirmation treatment.
(SRS). However, a recent "clarification" by the Minister for foreign affairs and Trade, Mr. Alexander Downer, stated that a person may not have a new passport or interim passport issued without a birth certificate stating their gender. Instead they may be issued a "Document of Identity
"
A department of Foreign Affairs spokesperson has said; "The department has an obligation to ensure that the national passport reflects the official identity of the bearer and it would be inconsistent ... to continue to issue passports, albeit limited in validity, to persons in a sex other than that shown in the records held by the ... births, deaths and marriages registrar,"
Due to the interpretation of the Commonwealth Marriage Act 1961, Birth certificates are not able to be changed where the person is currently married. In the case of homosexual-identified transpeople, to obtain a divorce would require them to perjure themselves by stating that their relationship was irretrievably broken. Due to the aforementioned "clarification", such people are also unable to be issued a passport, even if they previously obtained an interim passport in order to have SRS.
Grace Abrams appealed the minister's rejection of her application for a permanent passport. Her application with the administrative appeals tribunal was upheld, stating that she was able to validate her identity as a female person, and that her inability to present a female birth certificate due to state legislation was not valid grounds for rejecting her application http://www.sageaustralia.org/Abrams,G.pdf
This, however, gives rise to the event that Mrs. Abrams is a legally identified woman in a legally recognised marriage with another legal woman http://www.sageaustralia.org/news.htm#married
Gender
Gender is a range of characteristics used to distinguish between males and females, particularly in the cases of men and women and the masculine and feminine attributes assigned to them. Depending on the context, the discriminating characteristics vary from sex to social role to gender identity...
opposite to the gender identified at birth. As most legal jurisdictions have at least some recognition of the two traditional genders at the exclusion of other categories, this raises many legal issues and aspects of transsexualism. Most of these issues tend to be located in what is generally considered family law
Family law
Family law is an area of the law that deals with family-related issues and domestic relations including:*the nature of marriage, civil unions, and domestic partnerships;...
, especially the issue of marriage
Marriage
Marriage is a social union or legal contract between people that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways, depending on the culture or subculture in which it is found...
, but also things such as the ability of a transgendered person to benefit from a partner's insurance
Insurance
In law and economics, insurance is a form of risk management primarily used to hedge against the risk of a contingent, uncertain loss. Insurance is defined as the equitable transfer of the risk of a loss, from one entity to another, in exchange for payment. An insurer is a company selling the...
or social security
Social security
Social security is primarily a social insurance program providing social protection or protection against socially recognized conditions, including poverty, old age, disability, unemployment and others. Social security may refer to:...
.
The degree of legal recognition provided to transsexualism varies widely throughout the world. Many countries now extend legal recognition to sex reassignment by permitting a change of gender on the birth certificate
Birth certificate
A birth certificate is a vital record that documents the birth of a child. The term "birth certificate" can refer to either the original document certifying the circumstances of the birth or to a certified copy of or representation of the ensuing registration of that birth...
. Many transsexual people have their bodies permanently changed by surgical means or semi-permanently changed by hormonal means (see Sex reassignment therapy
Sex reassignment therapy
Sex reassignment therapy is an umbrella term for all medical procedures regarding sex reassignment of both transgender and intersexual people...
). In many countries, some of these modifications are required for legal recognition. In a few, the legal aspects are directly tied to health care; i.e. the same bodies or doctors decide whether a person can go ahead, and the subsequent processes automatically incorporate both matters.
The amount to which non-transsexual transgender
Transgender
Transgender is a general term applied to a variety of individuals, behaviors, and groups involving tendencies to vary from culturally conventional gender roles....
people can benefit from the legal recognition given to transsexual people varies. In some countries, an explicit medical diagnosis of transsexualism is (at least formally) necessary. In others, a diagnosis of gender identity disorder
Gender identity disorder
Gender identity disorder is the formal diagnosis used by psychologists and physicians to describe persons who experience significant gender dysphoria . It describes the symptoms related to transsexualism, as well as less severe manifestations of gender dysphoria...
, or simply the fact that one has established a different gender role, can be sufficient for some or all of the legal recognition available.
Europe
A majority of countries in EuropeEurope
Europe is, by convention, one of the world's seven continents. Comprising the westernmost peninsula of Eurasia, Europe is generally 'divided' from Asia to its east by the watershed divides of the Ural and Caucasus Mountains, the Ural River, the Caspian and Black Seas, and the waterways connecting...
give transsexual people the right to at least change their first name, most of which also provide a way of changing birth certificates. Several European countries recognize the right of transsexuals to marry in their post-operative sex. France
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
, Germany
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
, Italy
Italy
Italy , officially the Italian Republic languages]] under the European Charter for Regional or Minority Languages. In each of these, Italy's official name is as follows:;;;;;;;;), is a unitary parliamentary republic in South-Central Europe. To the north it borders France, Switzerland, Austria and...
, Spain
Spain
Spain , officially the Kingdom of Spain languages]] under the European Charter for Regional or Minority Languages. In each of these, Spain's official name is as follows:;;;;;;), is a country and member state of the European Union located in southwestern Europe on the Iberian Peninsula...
, the Netherlands
Netherlands
The Netherlands is a constituent country of the Kingdom of the Netherlands, located mainly in North-West Europe and with several islands in the Caribbean. Mainland Netherlands borders the North Sea to the north and west, Belgium to the south, and Germany to the east, and shares maritime borders...
, Turkey
Turkey
Turkey , known officially as the Republic of Turkey , is a Eurasian country located in Western Asia and in East Thrace in Southeastern Europe...
, Poland
Poland
Poland , officially the Republic of Poland , is a country in Central Europe bordered by Germany to the west; the Czech Republic and Slovakia to the south; Ukraine, Belarus and Lithuania to the east; and the Baltic Sea and Kaliningrad Oblast, a Russian exclave, to the north...
, Portugal
Portugal
Portugal , officially the Portuguese Republic is a country situated in southwestern Europe on the Iberian Peninsula. Portugal is the westernmost country of Europe, and is bordered by the Atlantic Ocean to the West and South and by Spain to the North and East. The Atlantic archipelagos of the...
, Romania
Romania
Romania is a country located at the crossroads of Central and Southeastern Europe, on the Lower Danube, within and outside the Carpathian arch, bordering on the Black Sea...
, Denmark
Denmark
Denmark is a Scandinavian country in Northern Europe. The countries of Denmark and Greenland, as well as the Faroe Islands, constitute the Kingdom of Denmark . It is the southernmost of the Nordic countries, southwest of Sweden and south of Norway, and bordered to the south by Germany. Denmark...
, Finland
Finland
Finland , officially the Republic of Finland, is a Nordic country situated in the Fennoscandian region of Northern Europe. It is bordered by Sweden in the west, Norway in the north and Russia in the east, while Estonia lies to its south across the Gulf of Finland.Around 5.4 million people reside...
, Sweden
Sweden
Sweden , officially the Kingdom of Sweden , is a Nordic country on the Scandinavian Peninsula in Northern Europe. Sweden borders with Norway and Finland and is connected to Denmark by a bridge-tunnel across the Öresund....
, Norway
Norway
Norway , officially the Kingdom of Norway, is a Nordic unitary constitutional monarchy whose territory comprises the western portion of the Scandinavian Peninsula, Jan Mayen, and the Arctic archipelago of Svalbard and Bouvet Island. Norway has a total area of and a population of about 4.9 million...
, and the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
all recognize this right. The Convention on the recognition of decisions regarding a sex change provides regulations for mutual recognition of sex change decisions and has been signed by five European countries and ratified by Spain and the Netherlands.
Spain
Since March 15, 2007, a new law in Spain allows transsexual people to modify their name and legal gender in all public documents and records on the basis of a personal request, regardless of whether they had genital reassignment surgery or not. However, medical (hormonal) treatment for at least two years and a gender dysphoria diagnosis are a prerequisite. The hormonal treatment is not a prerequisite if there are health or age reasons not to follow it.Poland
In Polish law there is not any specific institution or act considering gender change, although right to change one's legal gender is generally recognized. Article 189 of Polish Civil Procedure Code allows an individual to ask court to determine his right or legal relations in many contexts, including gender and civil registry records. On the grounds of this provision Polish courts often approve legal claims for modyfing registry records, name and all other public documents. It is practically needed that court should be provided with medical evidences of one's transsexuality.The first milestone sentence in the case of gender shifting was given by Warsaw's Voivode Court in 1964. Court reasoned that it possible in face of civil procedure and act on civil registry records to change one's gender after the genital reassignment surgery was conduced. In 1983 the Supreme Court ruled that in some cases, when the attributes of newly-formed sex are predominant it is possible to change one's gender even before the genital reassignment surgery.
United Kingdom
Historically in the United Kingdom, transsexual people have succeeded in getting their birth certificates changed and marriages conducted. This was first legally challenged in the 1960s, in the case of Ross Alexander, where the Court of SessionCourt of Session
The Court of Session is the supreme civil court of Scotland, and constitutes part of the College of Justice. It sits in Parliament House in Edinburgh and is both a court of first instance and a court of appeal....
ruled that the certificate change was legitimate for the purposes of inheriting a title, a decision later upheld by the Home Secretary
Home Secretary
The Secretary of State for the Home Department, commonly known as the Home Secretary, is the minister in charge of the Home Office of the United Kingdom, and one of the country's four Great Offices of State...
. However, the case was held secretly and in a Scottish court, and there was not a publicly reported case in an English court until 1970. That year, in the case of Corbett v Corbett
Corbett v Corbett
The case of Corbett v Corbett, heard in February 1970 with a 1971 decision, is a divorce case which set a legal precedent regarding the status of transsexuals in the United Kingdom...
, Arthur Corbett attempted to annul his marriage to April Ashley
April Ashley
April Ashley is an English model and restaurant hostess. She was the first British person to be outed as a transsexual, which was by the Sunday People in 1961...
on the grounds that transsexuals were not recognised in English law. It was decided that, for the purposes of marriage, a post-operative transsexual was considered to be of the sex they had at birth.
This set the precedent for the coming decades. People who thought they had existing valid marriages turned out not to, and the previous unofficial changing of birth certificates was stopped.
Transsexual people were able to change their names freely, to get passports and driving licences altered, to have their National Insurance
National Insurance
National Insurance in the United Kingdom was initially a contributory system of insurance against illness and unemployment, and later also provided retirement pensions and other benefits...
details changed, and so forth. A piece of legislation was also introduced to ban discrimination against transsexual people for employment.
In the 1980s and 1990s the pressure group, Press for Change, helped people take several cases to the European Court of Human Rights
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...
about this. In Rees v. United Kingdom, 1986, it was decided that the UK was not violating any human rights, but that they should keep the situation under review. In the 2002 case Goodwin v. United Kingdom, it was decided that the rights to privacy and family life were being infringed.
In response to its obligation, Parliament
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
passed the Gender Recognition Act 2004
Gender Recognition Act 2004
The Gender Recognition Act 2004 is an Act of the Parliament of the United Kingdom that allows transsexual people to change their legal gender. It came into effect on 4 April 2005.-Operation of the law:...
, which effectively granted full legal recognition for transgender people.
In contrast to systems elsewhere in the world, the Gender Recognition process does not require applicants to be post-operative. They need only demonstrate that they have suffered gender dysphoria, and have lived in the 'acquired gender' for two years, and intend to continue doing so until death. There are strict rules governing the requirements for granting of a certificate; more details may be found on the GIRES website.
Medical treatment
It has been established by the courts that no National Health ServiceNational Health Service
The National Health Service is the shared name of three of the four publicly funded healthcare systems in the United Kingdom. They provide a comprehensive range of health services, the vast majority of which are free at the point of use to residents of the United Kingdom...
Health Authority has the right to deny treatment for gender dysphoria as a matter of policy. However, effective access to treatment varies wildly depending upon the policies of the individual Gender Identity Clinics, with some taking a more relaxed approach than others. Transsexual people frequently characterise some centres as arrogant and controlling. It is not uncommon for a minimum of 24 months of real life experience
Real life experience
Real-life experience is a process where transsexual and transgender people live full-time in their preferred gender identity for a period of time, in order to demonstrate that they can function as a member of said gender...
to be required before a surgical referral is permitted, and many GICs will force patients to transition before they are allowed access to hormone replacement therapy.
The Transsexuellengesetz
Since 1980, GermanyGermany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
has a law that regulates the change of first names and legal gender. It is called "Gesetz über die Änderung der Vornamen und die Feststellung der Geschlechtszugehörigkeit in besonderen Fällen (:de:Transsexuellengesetz – TSG)" (Law about the change of first name and determination of gender identity in special cases (Transsexual law – TSG)).
In Germany, as in many countries whose law is at least partly based on the Napoleonic Code
Napoleonic code
The Napoleonic Code — or Code Napoléon — is the French civil code, established under Napoléon I in 1804. The code forbade privileges based on birth, allowed freedom of religion, and specified that government jobs go to the most qualified...
, the first name has to be gender-specific. One can either obtain a change of name alone, and proceed later with a change of legal gender, if possible or desired, or obtain both in a single legal procedure.
For both, two official expert opinions have to be presented to a court stating that:
- a medical diagnosis of transsexualism has been made,
- the person has felt the need of living "according to their desires" for at least three years, and
- it is unlikely that their feeling of belonging to the other sex/gender is going to change again. (GermanGerman languageGerman is a West Germanic language, related to and classified alongside English and Dutch. With an estimated 90 – 98 million native speakers, German is one of the world's major languages and is the most widely-spoken first language in the European Union....
does not differentiate between sex and gender).
The change of name may be revoked if the person marries and then fathers or gives birth to a child that was conceived after the name change became valid.
For the change of legal gender, it was also once required that the person
- is permanently infertile, and
- has had surgery through which their outer sexual characteristics are changed to a "significant approximation" to the appearance of the other sex/gender.
these requirements were finally removed in a 2011 revision of the TSG.
Originally, the law stated that neither change of name nor legal gender were available for people under 25 years of age. This condition has been declared void by the courts, and today there is no minimum age. Until 2008, it also stated that the person had to be unmarried.
The TSG applies only to German citizens; there are exceptions only for non-German citizens with very specific legal status, such as stateless people living legally in Germany.
Several court decisions have further specified several matters. For example, a person with only a name change has the right to be called "Herr" or "Frau" (Mr. or Mrs.) according to their first name, not their legal gender; similarly, documents have to be issued reflecting the actual gender identity, not legal gender. Job references, certifications and similar from the time before the change of name may to be reissued with the new name, so effectively there is no way for a new employer to learn about the change of name and/or gender. Also, people with only a name change do not have to divulge their legal gender to employers.
Criticism of the "Transsexuellengesetz"
In the last couple of years, the TSG has come under intense criticism not only from the trans community, but also some medical caregivers. This criticism is directed against both the way the law is applied, especially concerning the way "expert opinions" are done, and the wording of the law itself.
Particularly the following parts of the TSG are criticised:
- The mandatory diagnosis of transsexualism, instead of "gender identity disorder" or simply granting at least name changes on the basis of individual need.
- The fact that (almost) only German citizens can obtain papers reflecting the gender role they live in, resulting in significant problems for people living in Germany who are not German citizens.
- The need for professional recommendations to the court
- The proceedings can take a very long time
- People who have only changed their name have a questionable legal status. While most of the time this is perfectly sufficient, there are several problems in specific situations, especially regarding to the Yogyakarta PrinciplesYogyakarta PrinciplesThe Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity is a set of principles relating to sexual orientation and gender identity, intended to apply international human rights law standards to address the abuse of the...
(Principle 3 and 9). A person with only a name change ...- who is in hospitalHospitalA hospital is a health care institution providing patient treatment by specialized staff and equipment. Hospitals often, but not always, provide for inpatient care or longer-term patient stays....
or prisonPrisonA prison is a place in which people are physically confined and, usually, deprived of a range of personal freedoms. Imprisonment or incarceration is a legal penalty that may be imposed by the state for the commission of a crime...
has no right to be accommodated according to the gender role they live in, but can be housed according to their legal gender; - can enter a registered partnership with a person of the same legal gender (since 2001), but can not marry or enter any kind of legally secured partnership with a person of the opposite legal gender;
- risks their name change when fathering or giving birth to a child.
- who is in hospital
- The conditions for a change of legal gender are often considered too high:
- The requirement to be "permanently infertile" is seen as interfering with the right to physical integrity, especially since a simple sterilization is usually not seen as sufficient, but castrationCastrationCastration is any action, surgical, chemical, or otherwise, by which a male loses the functions of the testicles or a female loses the functions of the ovaries.-Humans:...
is required instead. - The requirement for surgery, which is interpreted essentially as a requirement for genital reassignment surgery, is seen as interfering with the right to physical integrity. This is always applied to transwomen, and transmen are only currently exempt because the results are seen as unacceptable. This exemption is regularly challenged by judges.
- The requirement to be "permanently infertile" is seen as interfering with the right to physical integrity, especially since a simple sterilization is usually not seen as sufficient, but castration
The professional retainers of the court (doctors, psychiatrists, psychologists, etc.) can be very expensive. Some professionals wish to see their theories tested in court, including intelligence and/or various psychiatric disorders. This results in assessments which are lengthy (several months are not unusual), costly and humiliating.
Many professionals also consider only those people as transsexual who live in a gender role that the professional considers "appropriate"– resulting in problems for example for transwomen who sometimes do not wear skirts or transmen with hair that is considered "too long". Especially lesbian transwomen and gay transmen can encounter problems here.
Since the courts usually impose their retained professionals on the applicants there is no way to choose one's own professional witnesses. Not every expert who is asked for an expert opinion however will work according such questionable "guidelines". Since there are many regional differences, there is a certain amount of "trans-tourism"; people (at least officially) moving to the circuit of courts who are known to appoint "liberal" or "reasonable" experts. However, the general problems with "professional opinions" have led to demands to abandon these completely or at least to lower the required number to one and to lower the formal requirement for it. Many of this criticism applies also to "expert opinions", "letters of recommendation" or similar papers regarding medical procedures. The same problems with hired professionals of the court occur in many other countries.
In July 2008, the Federal Constitutional Court
Federal Constitutional Court of Germany
The Federal Constitutional Court is a special court established by the Grundgesetz, the German basic law...
in Karlsruhe
Karlsruhe
The City of Karlsruhe is a city in the southwest of Germany, in the state of Baden-Württemberg, located near the French-German border.Karlsruhe was founded in 1715 as Karlsruhe Palace, when Germany was a series of principalities and city states...
ruled that a transsexual woman who transitioned to female after having been married to a woman for more than 50 years could remain married to her wife and change her legal gender to female. It gave the legislature one year to effect the necessary change in the relevant law. http://www.thestar.com/News/World/article/465913
Legal aspects of medical treatment
Based on several court decisions, some dating back to the late 1970s, medical treatment of transsexualism (and in fact all gender identity disorders) has to be paid by health insurance, which is mandatory in Germany. Like all treatments that have to be paid for by health insurance, "medical necessityMedical necessity
Medical necessity is a United States legal doctrine, related to activities which may be justified as reasonable, necessary, and/or appropriate, based on evidence-based clinical standards of care. Other countries may have medical doctrines or legal rules covering broadly similar grounds...
" has to be shown in each particular case. In some cases, this can lead to lengthy procedures, although this is not always the case. However, the less "medical necessity" can be shown, the more difficult it gets to get coverage. This is particularly true for surgeries like Facial Feminization Surgery
Facial feminization surgery
Facial feminization surgery is a set of reconstructive surgical procedures that alter typically male facial features to bring them closer in shape and size to typical female facial features...
, but also occasionally for more basic matters as the construction of a neo-clitoris.
The regulation of coverage of medical costs is formally completely unrelated to the TSG; in practice, there can be overlaps, for example with expert opinions.
Romania
In RomaniaRomania
Romania is a country located at the crossroads of Central and Southeastern Europe, on the Lower Danube, within and outside the Carpathian arch, bordering on the Black Sea...
, it is legal for transgender people to change their first name to reflect their gender identity, based on personal choice. Since 1996, it is also possible for someone who has gone through sex reassignment surgery
Sex reassignment surgery
Sex reassignment surgery is a term for the surgical procedures by which a person's physical appearance and function of their existing sexual characteristics are altered to resemble...
to change their legal gender in order to reflect their new (post-operative) biological sex. Transsexuals then have the right to marry in their post-operative sex.
Ireland
In the Republic of IrelandRepublic of Ireland
Ireland , described as the Republic of Ireland , is a sovereign state in Europe occupying approximately five-sixths of the island of the same name. Its capital is Dublin. Ireland, which had a population of 4.58 million in 2011, is a constitutional republic governed as a parliamentary democracy,...
, it is not possible for a transsexual person to alter their birth certificate. A case was taken in the High Court by Dr. Lydia Foy
Lydia Foy
Lydia Annice Foy is an Irish trans woman notable for leading legal challenges regarding gender recognition in Ireland. In 1992 Foy had sex reassignment surgery, and began a 12 year legal battle to have her birth certificate reflect her gender identity...
in 2002 which saw her case being turned down as a birth certificate was deemed to be an historical document. It is currently possible for anyone to undertake a change of name either through common usage or through a deed of change of name
Deed of Change of Name
A deed of change of name is a legal document in the United Kingdom and Republic of Ireland, which enables a single person or a family to officially change his or her name...
.
Dr. Foy had taken new proceedings to the High Court relying on the decisions of the European Court of Human Rights
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...
in the Goodwin and 'I' cases. Her application was heard between 17 and 26 April 2007 and judgment was reserved. Judgment was given in the High Court on 19 October 2007. The Judge held that the Irish State had failed to respect Dr. Foy's rights under Article 8 of the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
by not providing any mechanism for her to obtain a new birth certificate in her female gender. He indicated that he would grant a declaration that Irish law in this area was incompatible with the Convention. He also said he would have found that her right to marry under Article 12 of the Convention had been infringed as well if that had been relevant. On 14 February 2008 the Judge finally granted a declaration that sections of the Civil Registration Act, 2004 were incompatible with Article 8 of the Convention. This was the first declaration of incompatibility made under the European Convention of Human Rights Act passed in 2003. The written judgment is so far only available in an uncorrected form.
The Government had two months within which to appeal to the Supreme Court. If they do not, the Taoiseach
Taoiseach
The Taoiseach is the head of government or prime minister of Ireland. The Taoiseach is appointed by the President upon the nomination of Dáil Éireann, the lower house of the Oireachtas , and must, in order to remain in office, retain the support of a majority in the Dáil.The current Taoiseach is...
(Prime Minister
Prime minister
A prime minister is the most senior minister of cabinet in the executive branch of government in a parliamentary system. In many systems, the prime minister selects and may dismiss other members of the cabinet, and allocates posts to members within the government. In most systems, the prime...
) must report to the Oireachtas
Oireachtas
The Oireachtas , sometimes referred to as Oireachtas Éireann, is the "national parliament" or legislature of Ireland. The Oireachtas consists of:*The President of Ireland*The two Houses of the Oireachtas :**Dáil Éireann...
(Parliament
Parliament
A parliament is a legislature, especially in those countries whose system of government is based on the Westminster system modeled after that of the United Kingdom. The name is derived from the French , the action of parler : a parlement is a discussion. The term came to mean a meeting at which...
) the making of the declaration and will have to indicate what measures his government proposes to take to comply with Ireland's obligations under the European Convention. In April 2008 the Government indicated that it would be appealing the High Court ruling to the Supreme Court. The Government has since dropped its appeal and will likely introduce leglisation recognising one' new sex following sex reassignment surgery. The junior party in government, the Green Party
Green Party (Ireland)
The Green Party is a green political party in Ireland. It was founded as the Ecology Party of Ireland in 1981 by Dublin teacher Christopher Fettes. The party became the Green Alliance in 1983 and in 1987 was renamed to its current title in English...
wished to have psychological gender identity recognised while the main party in government, Fianna Fáil
Fianna Fáil
Fianna Fáil – The Republican Party , more commonly known as Fianna Fáil is a centrist political party in the Republic of Ireland, founded on 23 March 1926. Fianna Fáil's name is traditionally translated into English as Soldiers of Destiny, although a more accurate rendition would be Warriors of Fál...
wished to have medical gender identity recognised only.
In Northern Ireland
Northern Ireland
Northern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
, the Gender Recognition Act 2004
Gender Recognition Act 2004
The Gender Recognition Act 2004 is an Act of the Parliament of the United Kingdom that allows transsexual people to change their legal gender. It came into effect on 4 April 2005.-Operation of the law:...
of the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
applies, so a name and gender change on one's birth certificate is now possible.
South Africa
The Constitution of South AfricaConstitution of South Africa
The Constitution of South Africa is the supreme law of the country of South Africa. It provides the legal foundation for the existence of the republic, sets out the rights and duties of its citizens, and defines the structure of the government. The current constitution, the country's fifth, was...
forbids discrimination on the basis of sex, gender and sexual orientation (amongst other grounds). The Constitutional Court
Constitutional Court of South Africa
The Constitutional Court of South Africa was established in 1994 by South Africa's first democratic constitution: the Interim Constitution of 1993. In terms of the 1996 Constitution the Constitutional Court established in 1994 continues to hold office. The court began its first sessions in February...
has indicated that "sexual orientation" includes transsexuality.
In 2003 Parliament
Parliament of South Africa
The Parliament of South Africa is South Africa's legislature and under the country's current Constitution is composed of the National Assembly and the National Council of Provinces....
enacted the Alteration of Sex Description and Sex Status Act, which allows a transgender person who have had gender reassignment surgery, to apply to the Department of Home Affairs to have the sex description altered on their birth record. Once the birth record is altered they can be issued with a new birth certificate
Birth certificate
A birth certificate is a vital record that documents the birth of a child. The term "birth certificate" can refer to either the original document certifying the circumstances of the birth or to a certified copy of or representation of the ensuing registration of that birth...
and identity document
Identity document
An identity document is any document which may be used to verify aspects of a person's personal identity. If issued in the form of a small, mostly standard-sized card, it is usually called an identity card...
, and are considered "for all purposes" to be of the new sex.
The specific definition of gender reassignment surgery in this Act refers to reassigning a person's sex by changing physiological or other sexual characteristics,and includes any part of such a process. Thus the transgender person is not required to have had genital surgery in order to have the sex description altered.
The application must be accompanied by:
- the birth certificate of the applicant;
- in the case of a person whose sexual characteristics have been altered by surgical or medical treatment resulting in gender reassignment, be accompanied by reports stating the nature and results of any procedures carried out and any treatment applied prepared by the medical practitioners who carried out the procedures and applied the treatment or by a medical practitioner with experience in the carrying out of such procedures and the application of such treatment;
- in every case in which sexual characteristics have been altered resulting in gender reassignment, be accompanied by a report, prepared by a medical practitioner who has medically examined the applicant in order to establish his or her sexual characteristics
Intersexed persons may equally apply to the Department of Home Affairs (South Africa) to have the sex description altered on their birth record. The application has to be accompanied by reports stating the nature and results of any procedures carried out, if any. The act indicates that the Intersex person is not obliged to have had hormonal, surgically or medical intervention. The application needs to be accompanied by reports from a medical practitioner indicating that the person is intersex as well as a report from a qualified psychologist or social worker corroborating that the applicant is living and has lived stably and satisfactorily,for an unbroken period of at least two years, in the gender role corresponding to the sex description under which he or she seeks to be registered.
Once the birth record is altered a new birth certificate
Birth certificate
A birth certificate is a vital record that documents the birth of a child. The term "birth certificate" can refer to either the original document certifying the circumstances of the birth or to a certified copy of or representation of the ensuing registration of that birth...
and identity document
Identity document
An identity document is any document which may be used to verify aspects of a person's personal identity. If issued in the form of a small, mostly standard-sized card, it is usually called an identity card...
can be issued, and are considered "for all purposes" to be of the new sex.
United States
Pursuant to the U.S. Const., Amend. 10Tenth Amendment to the United States Constitution
The Tenth Amendment to the United States Constitution, which is part of the Bill of Rights, was ratified on December 15, 1791...
, which reserves to the states (or to the people) all powers not assigned to the federal government, the legal classification of characteristic sex is state jurisdiction in the United States. The principle is generally extended to the District of Columbia and U.S. territories, though the federal government has power to overrule any decision those non-state entities might make. Thus, the legal sex of a transsexual (as well as a transsexed or intersex) individual in the United States does not have one answer but 56 answers – one for each state, the District of Columbia, and the five inhabited territories (American Samoa, Guam, the Northern Marianas Islands, Puerto Rico, and the US Virgin Islands).
Canada
Jurisdiction over legal classification of characteristic sex in Canada is assigned to the provinces and territories. This includes legal change of sex classification, for which the requirements vary from one sub-federal jurisdiction to another.Japan
In July 2003, the parliament of JapanJapan
Japan is an island nation in East Asia. Located in the Pacific Ocean, it lies to the east of the Sea of Japan, China, North Korea, South Korea and Russia, stretching from the Sea of Okhotsk in the north to the East China Sea and Taiwan in the south...
unanimously approved a new law that enables transsexual people to change their legal sex. It is called “性同一性障害者の性別の取扱いの特例に関する法律” (Act on Special Cases in Handling Gender for People with Gender Identity Disorder) The law, effective in 2004, however, has controversial conditions which demand the applicants be both unmarried and childless. On 28 July 2004, Naha Family Court, Okinawa Prefecture, allowed an official sex-change of a transsexual woman, generally thought of as the first court approval under the new law. Despite the fact that sex reassignment surgery is mandatory for a legal sex change, it is not paid for by national health insurance, or hormone replacement as well.
South Korea
In South Korea, it is possible for transgender individuals to change their legal genders, although it depends on the decision of the judge for each case. Since the 1990s, however, legal sex change has been approved in most of the cases. The legal system in Korea does not prevent marriage once a person has changed their legal sex.In 2006, the Supreme Court of Korea ruled that transsexuals have the right to have their legal papers altered to reflect their reassigned sex. A transwoman can be registered, not only as female, but also as being 'born as a woman'.
While same-sex marriage is not approved by South Korean law, a transgender woman obtains the legal status of 'female' automatically when she marries to a man, even if she has previously been a 'male' on papers.
Malaysia
There is no legislation expressly allowing transsexuals to legally change their gender in Malaysia. The relevant legislations are the Births and Deaths Registration Act 1957 and National Registration Act 1959. Therefore judges currently exercise their discretion in interpreting the law and defining the gender. There are conflicting decisions on this matter. There is a case in 2003 where the court allowed a transsexual to change her gender indicated in the identity cardIdentity document
An identity document is any document which may be used to verify aspects of a person's personal identity. If issued in the form of a small, mostly standard-sized card, it is usually called an identity card...
, and granted a declaration that she is a female. However, in 2005, in another case, the court refused to amend the gender of a transsexual in the identity card and birth certificate
Birth certificate
A birth certificate is a vital record that documents the birth of a child. The term "birth certificate" can refer to either the original document certifying the circumstances of the birth or to a certified copy of or representation of the ensuing registration of that birth...
. Both cases applied the United Kingdom case of Corbett v Corbett
Corbett v Corbett
The case of Corbett v Corbett, heard in February 1970 with a 1971 decision, is a divorce case which set a legal precedent regarding the status of transsexuals in the United Kingdom...
in defining the gender.
Philippines
The Supreme Court of the PhilippinesSupreme Court of the Philippines
The Supreme Court of the Philippines is the Philippines' highest judicial court, as well as the court of last resort. The court consists of 14 Associate Justices and 1 Chief Justice...
Justice Leonardo Quisumbing
Leonardo Quisumbing
Leonardo A. Quisumbing was an Associate Justice of the Supreme Court of the Philippines. He was appointed by President Fidel Ramos in 1998 and retired as the most senior Associate Justice of the Court on his 70th birthday in 2009....
on September 12, 2008, allowed Jennifer Cagandahan, 27, to change both his birth certificate
Birth certificate
A birth certificate is a vital record that documents the birth of a child. The term "birth certificate" can refer to either the original document certifying the circumstances of the birth or to a certified copy of or representation of the ensuing registration of that birth...
, gender and name from Jennifer to Jeff, to male: “We respect respondent’s congenital condition and his mature decision to be a male. Life is already difficult for the ordinary person. We cannot but respect how respondent deals with his unordinary state and thus help make his life easier, considering the unique circumstances in this case. In the absence of a law on the matter, the court will not dictate on respondent concerning a matter so innately private as one’s sexuality and lifestyle preferences, much less on whether or not to undergo medical treatment to reverse the male tendency due to rare medical condition, congenital adrenal hyperplasia
Congenital adrenal hyperplasia
Congenital adrenal hyperplasia refers to any of several autosomal recessive diseases resulting from mutations of genes for enzymes mediating the biochemical steps of production of cortisol from cholesterol by the adrenal glands ....
. In the absence of evidence that respondent is an ‘incompetent’ and in the absence of evidence to show that classifying respondent as a male will harm other members of society ... the court affirms as valid and justified the respondent’s position and his personal judgment of being a male." Court records showed that – at 6, he had small ovaries; at 13, his ovarian structure was minimized and he had no breasts and did not menstruate. The psychiatrist
Psychiatrist
A psychiatrist is a physician who specializes in the diagnosis and treatment of mental disorders. All psychiatrists are trained in diagnostic evaluation and in psychotherapy...
testified that "he has both male and female sex organs, but was genetically female, and that since his body secreted male hormones, his female organs did not develop normally." The Philippines
Philippines
The Philippines , officially known as the Republic of the Philippines , is a country in Southeast Asia in the western Pacific Ocean. To its north across the Luzon Strait lies Taiwan. West across the South China Sea sits Vietnam...
National Institutes of Health said "people with congenital adrenal hyperplasia lack an enzyme
Enzyme
Enzymes are proteins that catalyze chemical reactions. In enzymatic reactions, the molecules at the beginning of the process, called substrates, are converted into different molecules, called products. Almost all chemical reactions in a biological cell need enzymes in order to occur at rates...
needed by the adrenal gland
Adrenal gland
In mammals, the adrenal glands are endocrine glands that sit atop the kidneys; in humans, the right suprarenal gland is triangular shaped, while the left suprarenal gland is semilunar shaped...
to make the hormones cortisol
Cortisol
Cortisol is a steroid hormone, more specifically a glucocorticoid, produced by the adrenal gland. It is released in response to stress and a low level of blood glucocorticoids. Its primary functions are to increase blood sugar through gluconeogenesis; suppress the immune system; and aid in fat,...
and aldosterone
Aldosterone
Aldosterone is a hormone that increases the reabsorption of sodium ions and water and the release of potassium in the collecting ducts and distal convoluted tubule of the kidneys' functional unit, the nephron. This increases blood volume and, therefore, increases blood pressure. Drugs that...
.
This, however, applies only to cases involving congenital adrenal hyperplasia and other intersex situations. The Philippine Supreme Court has also ruled that Filipino citizens do not have the right to legally change their sex on official documents (driver's license, passport, birth certificate, Social Security records, etc.) if they are transsexual and have undergone sexual reassignment surgery. The Court said that if the man, now anatomically a female, were to be allowed to legally change his sex it would have “serious and wide-ranging legal and public policy consequences,” citing the institution of marriage in particular.
Birth Certificates
Estelle AsmodelleEstelle Asmodelle
Estelle Asmodelle , formerly known as Estelle Maria Croot, is an Australian model, belly dancer, writer, musician and actress...
was Australia's first legal transsexual with the Births, Deaths and Marriages Dept. (NSW Government). As cited by (18 June 1987 – Australian Telegraph Newspaper.) This was the first time in Australian law history that an adult transsexual was permitted to change their birth certificate to a different sex and soon afterwards the passport law also changed allowing transsexuals to be issued passports with the new sex depicted.
Australia is now one of only a few countries where legal status of the new sex following sex affirmation surgery is granted via a new full birth certificate. Birth certificates are within the jurisdiction of the states, whereas marriage and passports are matters for the Commonwealth. All Australian jurisdictions now recognise the affirmed sex of an individual after surgery unless the person is married.
Marriage
Re Kevin - validity of marriage of transsexualRe Kevin - validity of marriage of transsexual
This case, cited as Re Kevin : Validity of Marriage of Transsexual FamCA 1074 and FLC 93-087 or short Re Kevin was a case brought before the Full Court of the Family Court of Australia regarding the possibility of transsexual people to marry according to their new gender...
([2001] FamCA 1074) is a groundbreaking judgment of the Family Court of Australia
Family Court of Australia
The Family Court of Australia is a superior Australian federal court of record which deals with family law matters. Together with the Federal Magistrates Court, it covers family law matters in all states and territories of Australia except Western Australia...
, concerning both transsexualism as a phenomenon, the human rights of those who experience transsexualism and the right of people who have experienced transsexualism to enter into a legally valid marriage.
Kevin, an affirmed male, married Jennifer before the case started. Prior to the marriage Kevin had affirmed his male sexual identity by underging hormonal and other sex affirmation treatment; including a double mastectomy and full hysterectomy but not the construction of a phallus. His legal sex had been changed on his birth certificate and other documentation and since his affirmation of his male sex (including as at the time of his marriage and the trial) he had lived in the Australian culture and community as a male.
When the Attorney General for the Commonwealth of Australia advised the couple through his department that in his considered opinion their marriage was not a legally valid one and that the couple (or at least Kevin) was liable to be prosecuted and possibly imprisoned, the couple sought the legal advice and representation of Australian lawyer Rachael Wallbank, herself an affirmed female, and commenced proceedings in the Family Court of Australia against the Attorney General for the Commonwealth of Australia to have their marriage declared legally valid.
The question to be determined by the court was whether Kevin was a man for the purposes of the marriage law of Australia and, hence, whether the marriage ceremony he had undertaken with Jennifer was a valid one. Further, at the time of the trial the couple had one child as a result of approved assisted technology. Their second child was born at the time of the hearing of the appeal proceedings. English law had previously decided, in the case of Corbett v Corbett
Corbett v Corbett
The case of Corbett v Corbett, heard in February 1970 with a 1971 decision, is a divorce case which set a legal precedent regarding the status of transsexuals in the United Kingdom...
(1971), that sex affirmation including genital reassignment/rehabilitation surgery (then and sometimes still geniticentrically called "Sex Reassignment Surgery") would not be recognized for purposes of marriage. That decsison had been generally followed throughout the world; including the United States of America. Justice Richard Chisholm (the judge in Re Kevin) found fault with both the legal bases and internal logic of this decision and held it did not bind or represent Australian law.
Significantly, Justice Chisholm found that the extensive international and Australian expert evidence in Re Kevin did not support the primary "factual" proposition in the Corbett decision that a causal (and hence legal) distinction could and should be made between the natural variations in human sexual formation sometimes called "intersex" (in Corbett and other similar decisions said to have a biological causation) and transsexualism (in Corbett and other similar decisions said to be a psychological disorder). Chisholm J found that on the balance of expert evidence, both as presented in Re Kevin and generally in cases throughout the world dealing with the issue, no such factual distinction was possible and that transsexualism was an example of natural intersexual diversity in human sexual formation and not a pychological disorder or illness.
Justice Chisholm stated that to determine a person's sex for the purpose of the law of marriage in Australia all relevant matters need to be considered, including: the person's biological and physical characteristics at birth (including gonads, genitals and chromosomes); the person's life experiences, including the sex in which he or she is brought up and the person's attitude to it; the person's self-perception as a man or woman; the extent to which the person has functioned in society as a man or a woman; any hormonal, surgical or other medical sex affirmation (including genital reassignment/rehabilitation) treatments the person has undergone, and the consequences of such treatment as well as the person's biological, psychological and physical characteristics at the time of the marriage, including (if they can be identified) any biological features of the person's brain that are associated with a particular sex.
His Honour stated that it is clear from the Australian authorities that "post-operative transsexuals" will normally be members of their affirmed sex. Holding that the sex of a person for the purposes of marriage is their sex at the time of the marriage, the judgement found Kevin to be a man within the ordinary everyday meaning of the word in Australian life and declared the marriage between Kevin and Jennifer to be valid. The Attorney-General appealed.
The Full Court of the Family Court, upholding the decision at first instance http://www.familycourt.gov.au/judge/2003/pdf/attorney.pdf, determined that the reasoning of the Family Division of the UK High Court in W v W, an intersex marriage case, http://www.pfc.org.uk/legal/w-v-w.htm was a correct statement of the law in Australia and that people with transsexualism, like others with intersex conditions, should be able to choose their sex, affirm it and marry as a member of that sex.
Re Kevin has been subsequently extensively quoted and relied upon in international jurisprudence (including the in the United States of America and in the European Court of Human Rights) concerning the civil and human rights of people who experience transsexualism; including young people with transsexualism who are still regularly deprived of their right to affirm their innate sex without being punished by family and culture, change their legal sex in order to make it intelligably consistent with their affirmed/lived sex as well as being able to freely access medically approved sex affirmation treatment.
Passports
Until recently, transsexual people in Australia were able to be issued an interim passport with their self-identified gender stated upon it, in order to travel overseas for sex reassignment surgerySex reassignment surgery
Sex reassignment surgery is a term for the surgical procedures by which a person's physical appearance and function of their existing sexual characteristics are altered to resemble...
(SRS). However, a recent "clarification" by the Minister for foreign affairs and Trade, Mr. Alexander Downer, stated that a person may not have a new passport or interim passport issued without a birth certificate stating their gender. Instead they may be issued a "Document of Identity
Document of Identity
The Hong Kong Special Administrative Region Document of Identity for Visa Purposes is a biometric travel document issued by the Hong Kong Immigration Department to residents of Hong Kong who are unable obtain national passports...
"
A department of Foreign Affairs spokesperson has said; "The department has an obligation to ensure that the national passport reflects the official identity of the bearer and it would be inconsistent ... to continue to issue passports, albeit limited in validity, to persons in a sex other than that shown in the records held by the ... births, deaths and marriages registrar,"
Due to the interpretation of the Commonwealth Marriage Act 1961, Birth certificates are not able to be changed where the person is currently married. In the case of homosexual-identified transpeople, to obtain a divorce would require them to perjure themselves by stating that their relationship was irretrievably broken. Due to the aforementioned "clarification", such people are also unable to be issued a passport, even if they previously obtained an interim passport in order to have SRS.
Grace Abrams appealed the minister's rejection of her application for a permanent passport. Her application with the administrative appeals tribunal was upheld, stating that she was able to validate her identity as a female person, and that her inability to present a female birth certificate due to state legislation was not valid grounds for rejecting her application http://www.sageaustralia.org/Abrams,G.pdf
This, however, gives rise to the event that Mrs. Abrams is a legally identified woman in a legally recognised marriage with another legal woman http://www.sageaustralia.org/news.htm#married
See also
- List of transgender-related topics
- LGBT rights by country or territory — including gender identity/expression
- LGBT people in prisonLGBT people in prisonLesbian, gay, bisexual and transgender people in prisons often face additional challenges as inmates to those of straight, cisgender inmates....
- Yogyakarta PrinciplesYogyakarta PrinciplesThe Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity is a set of principles relating to sexual orientation and gender identity, intended to apply international human rights law standards to address the abuse of the...
External links
- Transgender Law Center – California civil rights organization advocating for transgender communities through direct legal service, public policy advocacy, and educational opportunities
- Links to Online forms for California Change of Name and Gender
- Trans Gender Title and Name Change Information and Advice on Trans Gender Title and Name Changes in the United Kingdom
- Press for Change – UK information about the trans rights campaign and details about the legal, medical, political, and social issues surrounding transgender people
- Sylvia Rivera Law Project – US based cooperative organization founded on the understanding that gender self-determination is intertwined with racial, social, and economic justice
- Gender Public Advocacy Coalition (defunct) – US advocacy group working to end discrimination and violence caused by gender stereotypes by changing public attitudes, educating elected officials, and expanding human rights
- National Center for Transgender Equality – US group dedicated to advancing the equality of transgender people through advocacy, collaboration and empowerment.
- Transgender Law and Policy Institute– US information about laws and policy surrounding gender identity and gender expression.
- Instructions for changing name and sex on birth certificate – State-by-state instructions for US and Canada
- http://www.w-o-m-a-n.net – Australian WOMAN Network provides support and advocacy for people who are surgically affirming or have affirmed a sex opposite that assigned to them at birth
- Illinois Gender Advocates Illinois advocacy group for transgender people