Transsexual people are those who establish a permanent identity with the gender opposite to that which they were assigned 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 Gender 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.
Several countries in Europe give transsexual people the right to at least change their first name. Most 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, the Netherlands, Poland, Portugal, Romania, Denmark, Finland, Sweden and the United Kingdom all recognize this right.
The situation is different in some eastern European countries. For instance, countries like the Czech Republic have laws governing sex change or, at least, give people the right to change their name and legal documents (Latvia). Other countries like Lithuania do not have any working legislation governing sex change.
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 gender are predominant it is possible to change one's gender even before the genital reassignment surgery.
Historically in the United Kingdom, transsexual people had succeeded in getting their birth certificates changed and marriages conducted. However, this was not legally tested until the case of Corbett v Corbett in 1970, where 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 vs. United Kingdom, 1986, it was decided that the UK was not violating any human rights; but, that they should keep the situation under review. The UK government did nothing to look at the situation - and in 2002 in the case Goodwin vs. United Kingdom, it was decided that the rights to privacy and family life were being infringed.
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
It has been established by the courts that no National Health Service 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. A minimum requirement of 24 months real life experience, before a surgical referral is permitted, is not uncommon; and many GICs will force patients to transition before they are allowed access to hormone replacement therapy.
A common alternative for some is to seek private treatment; though most private health insurance plans specifically exclude it. Often, people will seek hormone therapy privately and then later seek surgery on the NHS; which, may prove troublesome because the NHS likes to be involved at all stages of the process.
In Germany, as in many countries whose law is at least partly based on the Code Napoleon, 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 procedure.
For both, two official expert opinions have to be presented to a court stating that:
The change of name can and almost certainly will 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 is also required that
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.
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.
Unless a person can show that they do not have the money to pay for the procedure, the applicant has to pay the costs for the procedure. The costs for the court itself are about 60-70 Euros, but the expert opinions can range in cost from 0 Euros to several thousand Euros on average around 600 to 1200 Euros.
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 role, not legal gender. Job references, certifications and similar from the time before the change of name have 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 even if the gender of the employee usually matters in a particular job. (For example a medical assistant to a gynaecologist.)
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:
As has already been mentioned, the "expert opinions" can be very expensive. Some "experts" wish to test everything they can think of, including intelligence and/or every psychiatric disorder they can think of. Also, the sexual history of the clients is of particular interest to some. This results in assessments which are lengthy (several months are not unusual), costly and humiliating.
Many "experts" also consider only those people as transsexual who live in a gender role that the expert 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 suffer from problems with these "experts".
Since the courts usually impose the "experts" on the applicants (which is legally at least questionable) there is no way to escape these often expensive, lengthy and humiliating assessments. 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 "expert 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 "experts" are also experienced in all other countries.
In July 2008, a 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. (La Presse)
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.
In Romania, it is legal for transgender people to change their first name to reflect their gender, based on personal choice. Since 1996, it is also possible for someone who has gone through gender 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.
In the Netherlands one can go to court and request a change in gender and birth name on ones birth certificate. With this modification the records of the local municipality are updated, and one can obtain a passport and driver's license with the new name and gender. Moreover, a child can then request an update of the gender indication of their parents to allow a change to their records.
In the Republic of Ireland, 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 has 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 19th 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 has 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 Convnetion.
South African courts have accepted the Corbett decision, but New Zealand courts, and more recently an Australian court (see Re Kevin - validity of marriage of transsexual), have rejected it. Some Canadian courts have also accepted the decision, though the law in question appears to vary from province to province.
12 states and 106 jurisdictions (as of October 2007) including the District of Columbia which feature legislation that prohibit discrimination based on gender identity in employment, housing, and public accommodations. This legislation is similar to protections against sex and racial discrimination.
|Rhode Island||July 17, 2001|
|California||August 2, 2003|
Hawaii protects against discrimination in housing but not employment or public accomindations. For a complete list of cities and counties, see Non-discrimination Laws
Another important case was Darnell v. Lloyd, 395 F. Supp. 1210 (D. Conn. 1975), where the court found that substantial state interest must be demonstrated to justify refusing to grant a change in sex recorded on a birth certificate.
The first case in the United States which found that post-operative transsexuals could marry in their post-operative sex was the New Jersey case M.T. v. J.T., 140 N.J. Super. 77, 355 A.2d 204, cert. denied 71 N.J. 345 (1976). Here the court expressly considered the English Corbett v. Corbett decision, but rejected its reasoning.
In K. v. Health Division, 277 Or. 371, 560 P.2d 1070 (1977), the Oregon Supreme Court rejected an application for a change of name or sex on the birth certificate of a post-operative transsexual, on the grounds that there was no legislative authority for such a change to be made.
In re Jose Mauricio LOVO-Lara, 23 I&N Dec. 746 (BIA 2005), http://www.usdoj.gov/eoir/vll/intdec/vol23/3512%20.pdf the (Federal) US Dept. of Justice, Board of Immigration Appeals ruled that for purposes of an immigration visa - A marriage between a postoperative transsexual and a person of the opposite sex may be the basis for benefits under ..., where the State in which the marriage occurred recognizes the change in sex of the postoperative transsexual and considers the marriage a valid heterosexual marriage.
In O'Donnabhain v. Commissioner, the United States Tax Court is set to determine whether costs for sex reassignment surgery are tax deductible as medical expenses. The IRS argues that such surgery is cosmetic and not medically necessary.
The situation in Canada varies depending upon which province you are in. It is possible to gain recognition in each of them, but with varying requirements.
Singapore has also recently recognized the right of transsexuals to marry in their reassigned sex.
In July 2003, the parliament of Japan unanimously approved a new law that enables transsexual people to change their legal sexes. 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 as the first court approval under the new law.
In May 2005, the Tokyo Metropolitan Government's Transport Authority announced that transsexual people and those "suffering from a gender disorder" will be permitted to ride in designated women-only carriages on its subway lines
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.
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.
Re Kevin - validity of marriage of transsexual ( FamCA 1074) is a groundbreaking judgment of the Family Court of Australia, concerning the right of transsexuals to marry. Kevin (not his birth name), a post-operative female-to-male transsexual, married Jennifer (not her birth name). Kevin had undergone hormonal treatment and sex affirmation surgeries. His sex indicator had been changed on his birth certificate and other legal documentation. The question faced by the court was whether Kevin was a man for the purposes of family law in Australia. English law had decided, in the case of Corbett v Corbett (1971), that sex reassignment would not be recognized for purposes of marriage. Justice Richard Chisholm (the judge in this case) found fault with the logic of this decision and held it did not bind Australian law.
Justice Chisholm stated that, to determine a person's sex for the purpose of the law of marriage, 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 reassignment treatments the person has undergone, and the consequences of such treatment; and 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 reassigned sex. Holding that the sex of a person for the purposes of marriage is their sex at the time of the marriage, he found Kevin to be a man within the ordinary, contemporaneous meaning of the word and declared his marriage was therefore valid. The Attorney-General appealed.
The Full Court of the Family Court, upholding the decision at first instance , determined that the reasoning of the Family Division of the UK High Court in W v W, an intersex marriage case, 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.
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 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 upheald, 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