Volume 2, Number 4, October - December 1998
Legal Implications of the New Ferment Concerning Transsexualism*by Louis H. Swartz, Ph.D., LL.M., R.N.**
*Please address comments to author at: School of Law, State University of New York at Buffalo, Buffalo, New York 14260, USA. Telephone: (**)(1)(716) 645-3010; (Fax) (**)(1)(716)645-2064, e-mail: firstname.lastname@example.org.
**Earlier versions of this paper were presented at The Third International Congress on Sex and Gender, Oxford, UK, 18-20 September 1998, and the 1998 Joint Annual Meeting of The Society for the Scientific Study of Sexuality and the American Association of Sex Educators, Counselors and Therapists, Los Angeles, California, USA, 11-15 November 1998.
Citation: Swartz L.H. Ph.D. LL.M., R.N. (1998) Legal Implications of the New Ferment Concerning Transsexualism. IJT 2/4, http://www.symposion.com/ijt/ijtc0604.htm
Legal policy in varying degrees favorably recognizing transsexualism, in common law countries, has rested upon a classical medical model which apparently has recently lost substantial support and has become much more diffuse. Special legal provisions concerning transsexualism may now be challenged: (1) as lacking a sound and persuasive rationale; (2) as making unfair distinctions among persons with nonstandard gender or sex identities who do, or do not, take various particular steps along a now disputed medical route toward personal adjustment. Although perhaps valuable in other ways, the current ferment of criticism here called transgender liberationism has not provided us with viable legal policy suggestions. The paper argues that, as we reexamine this area, a legal policy which does not attempt to make special provisions for transsexualism (no special legal recognition) deserves further serious consideration, as the least harmful and fairest policy in the long run.
The rationale for legal recognition of transsexualism might seem to be simple deference to medical authority, but has been much more complex. It can be characterized as (1) exceptional legal accommodation, not involving fundamental change in legal rules or social institutions, (2) in sympathetic, (3) narrowly defined cases, focusing on narrowly defined specific legal issues (piecemeal approach), (4) based upon medical evidence (classical medical model), (5) where little or no social harm or undermining of prevailing legal rules is thought to be likely (Swartz 1997b).
Viable legal rationales have not yet been put forth to take care of the legal dimensions of the suggested changes referred to above.
On the other hand, so far as one can tell, most of the fairly quiet majority of transsexuals who have experienced gender transition, or are in the process, seem very much committed to conventional gender stereotypes; these seem to be part of their personal identity; but these persons want gender transition arrangements, including medical arrangements, to be improved and to be more financially accessible.
A. Some Contributions Have Been Positive, Others Less Clearly So. Where the transgender movement an activist cultural and political movement involving gays and lesbians, bisexuals, cross-dressers, transsexuals, intersex persons, and some academics in the area of cultural studies may turn out to have been most successful may be in helping to persuade substantial numbers of people to be more tolerant of, appreciative and accepting of difference. I refer to gender and erotic differences, differences in bodily appearance and presentation of self, and in increasing the latitude open with respect to the roles we choose for ourselves, not only in personal relationships but in other social roles in the larger society. I think this movement may well turn out to be substantially successful, as the gay and lesbian rights movement has been, in largely decoupling gender identity issues from medical authority and from necessary, or prescribed, medical intervention. (Such social changes are attributable to many factors, and my account has necessarily been incomplete.) I do not foresee a utopia, but I see that much change of the kind described has already occurred and may well continue to occur.
For better or worse, the transgender movement can also take credit for the large role it has played in discrediting the medical model of transsexualism and in urging that the deference given to medical authority in this area should be substantially diminished.
Within this changed social picture I see the open acceptance of more variation, more personal choice, although, on this side of some postulated heaven, things will never be perfect. Most people want and need structure, although in widely varying degrees. We couldnt drastically change a free society for the better by rapid and deliberate action even if we had a well-defined mandate to do so and wanted to do so, as some seem to want at least in their fantasies.
This changed social picture might also mean, however, a substantial readjustment in the thinking of some within the transgender movement as to what they ought to be doing, for example, so far as taking hormones and aiming toward various steps in SRS, unless these are the steps that they themselves prefer to take.
III. Transgender Liberationism Perhaps Increases Informal Acceptance of Difference, But Does Not (And Cannot) Offer a Coherent Legal Program Of Its Own.
No set of rules, legal or otherwise, can satisfy those whom I am calling transgender liberationists, because in matters pertinent to gender and sex identity they wish to have unfettered discretion (see, e.g., International Bill of Gender Rights 1995). Other people, it seems, are obligated to comply with the liberationists wishes, rather than defend their own contrary wishes. Transgender liberationists have rights, but no restraints, no duties (for example, respecting the wishes of others to define access to gendered spaces in a conventional, bounded way). Other people do not have rights which might conflict with the wishes of the transgender liberationists; these others, the great majority of the population, have only duties; these are the duties of acceptance, acquiescence, and compliance. The idea that each has a right to do their own thing, whatever that might turn out to be from minute to minute, applies only to members of the transgender liberationist group. Even there, no account is taken of profound differences, and thus conflicts, within that group itself. For example, the less vocal majority among transsexuals seem to value and wish to preserve conventional, if not extremely conventional, notions of female and male identity, which apparently are precious parts of their own psychological makeup. Others, more likely to be vocal, want to radically change our notions of gender identity, if not entirely eliminate the use and valuing of such cultural ideas. Can both happen at once?
Transgender liberationists dont want workable sets of rules pertinent to gender and sex identity, I believe, because they are aware at some level that workable sets of rules cannot be devised which would satisfy them. Their demands are too different from existing social arrangements. Their demands are too diverse among members of their own group, especially if the conservative wishes of many of their constituents are to be taken into account.
IV. Special Legal Provisions Concerning The Transsexual Phenomenon
From a mixed nature-nurture-social construction point of view one could say that basic female and male identity elements seem to be grounded to some important degree in our evolutionary psychology. We are at a very early stage in having a dependable, detailed understanding of this. Cultural forces can play a very large role in shaping our ideas about gender, and even partially overriding inherited (genotypic) factors, but we have only a very modest understanding of this also. The matters discussed by Harry Benjamin and others concerning the transsexual phenomenon three and four decades ago now seem much less clearly defined than they did earlier. In some respects the asserted ability of physicians and related personnel to distinguish between persons "truly" suffering from what was then called transsexualism, and others not to be placed in this category, now seems to have been a much overstated ability. The category or set of categories is now much broader and much less clear. Patient self-definitions, and negotiations between patient, professional, and even other persons within the patients milieu, with respect to options and courses of action to be followed, now seem to play a much larger role than was suggested by an earlier model. That model seemed based on an analogy to the diagnosis of physical disease or the diagnosis and treatment of an intractable anomaly objectively discernible in the patients psychological makeup.
How much remains of the old model of transsexualism is hard to say, as is the question of what is present in SOC 5 that is still likely to be in SOC 6 or 7. We need to exercise a prudent caution with respect to claims of dependable medical knowledge upon which important legal decisions are to be based.
Taking guidance from the often overstated social constructionist point of view, we should also more carefully think about the role of law in constructing, that is to say influencing, the expectations, the beliefs and the courses of action, of people who have what we take to be nonstandard experiences of gender identity, whether these experiences are transient or long lasting. In particular, why should legal policy encourage these persons in the drastic step perhaps the unneeded step or personally unwanted step of taking contra-anatomical sex hormones or of undergoing various sex reassignment surgeries, in order to achieve various legally desirable outcomes, or to have a social identity which seems to have special legal approval? Legal policy itself not only has civic aspects and consequences but also has public health (including mental and physical health) consequences. What incentives are we providing to people, and why? Leaving other very important aspects of public policy to one side for the moment, is this really to the net benefit of the people directly involved and of others in the population who will then be guided accordingly? It is no answer just to say that this is what they want. The social constructionist position itself, plus ordinary social and legal commonsense unaided by recent theory, will raise the question as to whether the demand for physical sex-reassignment interventions (hormones, and especially, genital surgery) is not largely shaped by various cultural factors, including legal ones. Law, in part at least, may be helping to nurture the problem which then, with the aid of drastic means, it is imperfectly attempting to solve. That is not to say that distressing problems of gender identity are wholly a product of legal action. It is to suggest, however, that our knowledge is limited and, fortunately for the maintenance of a free society, laws power is, and ought to be, limited. Leaving aside possible important damage to social institutions, in addition to helping a small number of transsexuals for whom drastic somatic reconfiguration is thought to be necessary in order to have any hope of a decent life, by the manner in which various legal recognitions are granted or withheld we may be encouraging many more persons to take hormones and to undergo surgery.
A unique difference between legal recognitions of certain other identities or identifying characteristics (anatomical sex, "race," religion, age, and sexual preference) and gender identity, is that for legal purposes we seem unable to know nonstandard gender identity apart from a fact finding which depends heavily upon the presence or absence of a "new" anatomy. This leads to the bizarre, and to me highly problematical situation, that the law promotes drastic anatomical change so that a persons gender identity may receive legal recognition. This is so even though some or all of those anatomical changes may otherwise be "unnecessary," unwanted and unneeded in many of the cases in question. And persons with nonstandard gender identities who dont take hormones or undergo surgery are legally treated differently. They dont get equivalent legal recognition. An important reason for this, although some may disagree, is that we have no dependable means of knowing who they are. In addition, as has been argued, it may be that our binary legal classification of female and male doesnt fit all people, and indeed cant adequately fit all people. Again, some are being given legal recognition, but others through no fault of their own dont get legal recognition unless they fit into a mold which we are told doesnt suit them and is contrary to their wishes. The idea of perfect legal justice in this complex area turns out to be a snare and a delusion, and the source of a never-ending sense of aggrievement.
Finally, a fundamental question for legal policy arises as to the appropriateness of legal recognition of any prescriptive medical model as applied to this area of life. SOC 5 seems to refer to both hormone therapy and SRS as more in the nature of elective procedures rather than medically necessary, more in the nature of enhancing the patients positive well being (surely a worthy goal) and helping patients get what is going to be satisfying to them, than relieving suffering and alleviating or preventing serious depressions, preventing self-injury, etc. Although the model of rehabilitative medicine seems to be involved, I wonder how well that model fits what is presently called Gender Identity Disorder (GID) (see American Psychiatric Association 1994) and interventions under SOC 5 to aid such patients and clients in improving their life situation.
The model of elective cosmetic surgery seems at least as applicable. Patients who dont like the shape of their nose or their breasts, mainly because of social standards of attractive appearance, go to aesthetic or cosmetic surgeons for help. Instead of working on society to change social viewpoints concerning the attractiveness of naturally occurring bodily variety, the plastic surgeons work on the patients body to conform it to social expectations. Many patients are pleased with the outcome, are happier, and are glad they had the surgery. More and more people seem to be having such cosmetic surgery. But as I understand it, most of this surgery is regarded as optional. It is a great boon perhaps, but does not involve treatment of a disease, disorder or medical disability.
It may be that a lot more that is constructive can and ought to be accomplished by increasing social awareness, appreciation, and acceptance of difference in the areas of genders and of sexualities, than can or should be attempted by formal legal means. In the earlier days of the transsexual phenomenon some may not only have overestimated the extent of our knowledge but may also have overestimated the extent to which law, as opposed to informal social education and awareness, can and should play a substantial role in dealing with what Benjamin called the transsexual phenomenon. Law may also have had a more important role to play in the early days than it does now.
V. A Possible Future Legal Policy: Fewer (Or No) Special Legal Provisions Concerning The Transsexual Phenomenon
It may be that we should have less law aimed at the special situation of transsexuals rather than more. One of the basic reasons for this is that in many important ways the special situation of transsexuals may not be as special, unique, well bounded, and well described, as was previously supposed. Quite the contrary. It may be the case that the variations involved are much too great for law to handle in any consistent manner, in accord with our basic principles of legal justice. It may also be that well intended legal interventions, although they may sometimes produce results pleasing to the people immediately involved (the retail effects), are pushing in the direction of undesirable and even harmful unintended effects on many other persons with nonstandard gender identities and aspirations (the possible wholesale effects).
If what I am speculating about were to occur, the most likely scenario would also include continued social and legal support, at the most fundamental level, for our historic male-female sex-gender identity classification scheme. Whether or not there might eventually be legal recognition of one or more "other" categories, or an "unspecified" category (for at least some legal purposes), I do not know. In this scenario, which would take time to be thought through and gradually gain acceptance, the emphasis would be placed on choice, and voluntary negotiation and adjustment very imperfect though those necessarily are rather than on special legal mandate, special legal regulation, special legal recognition on behalf of some but not others, special legal interference.
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__________. 1997b. "Updated Look at Legal Responses to Transsexualism: Especially Three Marriage Cases in U.K., U.S. and New Zealand." International Journal of Transgenderism 1(2), October-December. (http://www.symposion.com/ijt/ijtc0201.htm)
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