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Transsexualism: The Current Medico-Legal
Viewpoint
Prepared for the Parliamentary Forum
on
Transsexualism, December 1997
[Abstract] Full Text [PDF]
1 Criteria
for determining sex
2 Classification
of transsexualism
3 Cases
where people treated for transsexualism have had their birth certificates
corrected
4 Concerns
about the legal processes by which the status quo was achieved
5 Current
medical concerns about the status quo
6 Conclusions
1
Criteria for determining sex
1.1 The
criteria currently used by the Registrar General for determining sex, that
is, the external genitalia, the gonads and the chromosomes, were decided in
1970 by the case of Corbett v Corbett. However, the leading world
experts in this field have now declared formally that these criteria are
invalid in the light of current scientific knowledge. They recognise that
this syndrome has a biological base and is not dissimilar to intersex
conditions which have a more immediately obvious biological base. Its
physical cause lies in the differential development of an area of the brain
which is essential to biological sex.
1.2 Thus,
it is now considered that there are four criteria which define biological
sex: external genitalia; internal genitalia; brain formation; and
chromosomes. The importance attached to orthodox chromosomal formation has
been diminished greatly following well-publicised cases of Olympic athletes
who have chromosomes incongruent with the rest of their biological
morphology and in the light of developing research into the human
genome.
1.3 At
birth, therefore, intersex conditions may be present in one of three ways.
First, and most obviously, the external genitalia of the individual may have
both male and female components - the syndrome of pseudo-hermaphroditism.
Typically, registration of the child is delayed until a decision has been
made by parents and paediatricians as to the corrective surgery that should
be undertaken to assign the individual to one sex or the other. When that
decision has been made, the child is registered in the assigned sex.
1.4 Second,
the individual may be born with the external genital appearance of one sex
but the internal genitalia of another, conditions such as androgen
insensitivity syndrome. At birth, there are no external indicators of the
condition and typically it is discovered at puberty when, for example,
individuals who have been registered as girls fail to menstruate and it is
discovered that instead of ovaries, they have testes. At that stage, too, a
decision has to be made as to the sex of the individual.
1.5 Third,
the individual may be born with congruent internal and external genitalia
but with an incongruent brain formation. At birth, there are no external
indicators of the condition but typically following adolescence gender
identity crystallizes out and remains constant thereafter. Again, a decision
has to be made as to the sex of the individual.
1.6 This
is, of course, a simplification of the way in which these conditions present
because the four criteria which determine biological sex may combine to
create intersex conditions in a variety of combinations. For example, there
is a vocal delegacy in the USA of individuals who presented with
hermaphroditism at birth and who were assigned to the sex which was not
congruent with their brain development. An exemplar of these circumstances
is provided by the case known as ‘John/Joan’ which provided long-term
clinical documentation of an intersexed individual and which showed that
their sex reassignment at birth had had to be reversed in adulthood. This
has led to consideration as to whether reassignment for all intersex
conditions should be deferred until the individual themselves has developed
into adolescence or later since it is only at later stages that diagnosis of
brain differentiation can be carried out.
1.7 Nevertheless,
in all conditions, the same case obtains: one of the four criteria for
deciding sex is incongruent and a decision has to be made about the sex of
the individual at the appropriate stage in their life.
2
Classification of transsexualism
2.1 The
term "transsexualism" was brought into mainstream medical
literature by Dr Harry Benjamin in 1953, who regarded it as a
biologically-based condition, believing that the genetic and endocrine
systems must provide a "fertile soil" for environmental
influences. It was his clearly stated view that ‘if the soma is healthy
and normal no severe case of transsexualism . . . is likely to develop in
spite of all provocations’. Four years later, this medical viewpoint was
confirmed by a surgical one. In their work on plastic surgery techniques,
Gillies and Millard echoed Benjamin’s identification of transsexualism as
being biologically-based and stated their opinion that it should be
classified as an intersex condition:
The physical sex picture does not always
bear a fixed relation to the behaviour pattern shown by an individual. One
or other hormone may determine an individual’s male or female proclivities
quite independently of the absence of some of the appropriate physical
organs. It may be suggested, therefore, that the definition of
hermaphroditism should not be confined to those rare individual with proved
testes and ovaries but extended to include all those with indefinite sex
attitudes.
2.2 Before
then and in the years following, the term had a variety of applications. It
was commonly used as interchangeable with "transvestite", with
"sexual intermediacy", "constitutional invert",
"male with a female outlook" , "sex transmutationist"
"eonism" and "psychic hermaphroditism". Although the
term was being integrated into medical thought during the 1960s, it did not
appear as a separate heading in the Index Medicus until 1968. Up to
that point, cases of transsexualism were listed under transvestism and
sometimes were defined as transvestism even though their treatment by sex
reassignment surgery makes it clear that they would now be diagnosed as
transsexualism, not transvestism. Transsexualism appeared in the American
Psychiatric Association’s Diagnostic and Statistical Manual in 1980
and it was not until it was defined formally in this way that controversy
over the use of sex reassignment surgery in its treatment dissipated.
2.2 Effective
medical treatment and surgical reconstruction became possible in the 1930s
when synthetic oestrogens were produced successfully and an effective method
of creating an artificial vagina was devised. Reports of twenty eight cases
of transsexualism were published before 1953. However, all the measures now
in use were used then, including hormone therapy, penectomy, orchidectomy,
vaginoplasty, bilateral mastectomy, hysterectomy, oopherectomy and
phalloplasty.
2.3 Concern
over the possible legal consequences of orchidectomy meant that some
surgeons insisted that patients went abroad for orchidectomy, although in
some cases the phrase "castrated abroad" was merely a euphemism to
hide the identity of the surgeon concerned. Hospital records also disguised
the nature of the operation as, for example, "congenital absence of
vagina." By 1959, the syndrome was prevalent enough for a study of
fifty cases to be published in the BMJ by Dr John Randall.
2.5 Thus,
prior to 1970, there was a well-established history of treatment for
transsexualism although the same syndrome was treated under a variety of
names.
3
Cases where people treated for transsexualism have had their birth
certificates corrected
3.1 In the
cases of Roberta Cowell, Michael Dillon and Ewan Forbes individuals who were
treated for transsexualism had their birth certificates corrected prior to
1970. The case of Ewan Forbes is dealt with in section 4 of this document.
Michael Dillon
3.2 The
biography of Michael Dillon states clearly that he was treated for
transsexualism:
Since 1970, however, it has been
impossible for transsexuals to get their birth certificates altered unless
it can be proved that a genuine mistake was made at birth. This does
sometimes happen, or did in the days before chromosome and other sex tests
ere available, but in Michael Dillon’s case there had been no mistake.
His anatomical and biological sex was unequivocally female. The only
respect in which he was originally male was psychological.
However, the biographer records that
Michael Dillon’s surgeon, Sir Harold Gillies, continued the convention of
disguising the nature of the condition to be treated by recording it as
acute hypospadias although "Michael Dillon fell firmly into the
transsexual rather than the hypospadiac category, as Sir Harold Gillies well
knew." After receiving call-up papers, Michael Dillon applied for entry
to the armed services but "was predictably turned down when the army
medical officer learned the truth."
3.3 On
14 April 1944 Michael
Dillon had his birth certificate corrected to show his sex as ‘boy’
Roberta Cowell
3.4 The
case of Roberta Cowell was covered widely by the press of the day.
Originally, it was presented as a unique event in which the individual’s
body had ‘spontaneously’ begun to change sex. However, after
investigation by the Press, the father of Roberta Cowell, Sir Ernest Cowell,
Honorary Surgeon to King George VI., stated publicly that this was not the
case. The details which were given by him and in other discussions of the
case at the time make it clear that this was a case of transsexualism. It
should be noted that the claim of ‘spontaneous sex-change’ is still made
occasionally by individuals, often where they have self-medicated with
hormone treatments, and sometimes as a way of helping their family to come
to terms with the medical condition of transsexualism.
3.5 Roberta
Cowell described her diagnosis thus:
I decided to go to a first-class
psycho-analyst . . . the man I went to see was a Freudian - and at the top
of his profession . . . by the time I had had thirty hours of analysis . .
. I discovered my unconscious mind was predominantly female. Not only was
it clearly shown by the tests, and the evidence was far too obvious to be
denied, but as the analysis proceeded it became quite obvious that the
feminine side of my nature, which all my life I had known of, and severely
repressed, was very much more fundamental and deep-rooted that I had
supposed . . . I was psychologically a woman.
The process described is identical to that
undergone transsexuals today, who also see a consultant psychiatrist for
diagnosis, exhibit similar symptoms and are diagnosed as being
‘psychologically a woman’ - that is, transsexual.
Following diagnosis, Roberta Cowell
describes her treatment thus:
I was examined by two gynaecologists, a
professor of anatomy, two general practitioners and another
endocrinologist . . . none of the doctors had any knowledge or experience
of a change from adult male to female, although the reverse was not
uncommon. . . the National Health Service could hardly be used in a case
like mine - especially as most of the specialists involved did not belong
to it.
Similarly, in current treatment for people
diagnosed as transsexual, their case is managed collaboratively by their
General Practitioner, the consultant psychiatrist carrying out the diagnosis
and the consultant surgeon performing the sex reassignment surgery.
3.6 All
of these features indicate that the condition for which she was treated was
transsexualism and this diagnosis was confirmed formally by her father,
using the terminology of the day. Roberta Cowell had press-released details
of her case, which was published in all major national newspapers except the
Times on 6 March 1954. Perhaps in consequence of this, there was
considerable speculation in the tabloid press about the nature of her
condition and the result of her treatment. On 21 March 1954 the Sunday
Pictorial printed a statement made by Sir Ernest Cowell in response to
questions which the newspaper had devised using as its basis "the views
of the leading sex-change authorities in Britain." Sir Ernest Cowell
said that he had taken the best professional advice and commented:
The last time I really examined him
(Roberta) was as a boy of about twelve when I operated on him for
appendicitis. I was certain he was a male then. . . Roberta’s change is
anatomically complete as far as possible. She cannot, of course, have a
womb and ovaries, which is the fundamental test of womanhood . . . this is
not a case of hermaphroditism in which a person starts life with the
primary sex glands of both sexes. . . if you define a transvestist as a
man driven by an overwhelming impulse to become a woman, or vice versa,
the advice to me is that I must agree that she is a transvestist . . . the
case is not unique.
3.7 It
is clear that the condition was transsexualism rather than one of the other
intersex conditions since Roberta Cowell fathered children and was a member
of the Armed Services. If Roberta had had ovaries not testes it would not
have been possible for her to father children. The standard medical
examination for admittance to the RAF included examination of the chest,
when any breast development would have been obvious, and inspection and
palpation of the groins for hernias or sign of any other deformity of the
external genitalia. It would have been obvious if Roberta Cowell had an
empty scrotal sac and tiny penis typical of female pseudo-hermaphroditism
and he would not have passed the medical if that had been the case.
3.8 On
17 May 1951 Roberta Cowell’s Birth Certificate was corrected to show her
sex as "girl".
4
Concerns about the legal processes by which the status quo was achived
4.1 The
case of Ewan
Forbes, the third example of an individual who had their birth
certificate corrected after being treated for transsexualism, exemplifies
current concerns about the legal processes by which the status quo was
achieved. For this reason, information is given here in detail.
4.2 The
obituary of Sir Ewan Forbes of Craigievar, Bt, says:
He was born on Sept 6 1912 and baptised
Elizabeth as the third and youngest daughter of the 18th Lord Sempill,
head of the Forbes-Sempill family, a long-established Scottish dynasty
holding a 15th century Barony and a Baronetcy of Novia Scotia, created in
1630.
On the death of her father, the 18th
Lord Sempill, in 1934, both the barony and the baronetcy passed to her
elder brother, who entrusted the management of his Fintray and Craigievar
estates to his sister.
In 1945 she took up practice in the
Alford district and it was from this point onward that Elizabeth Forbes-Sempill
looked and behaved like the man she knew she really was.
Dr Forbes-Sempill went about her
change of gender in the quietest possible manner. She applied to the
Sheriff of Aberdeen, and acquired a warrant for birth re-registration.
Then, on Sept 12 1952, there appeared a notice in the advertisement
columns of The Press and Journal, Aberdeen, which stated that henceforth
Dr Forbes-Sempill wished to be known as Dr Ewan Forbes-Sempill. . . Some
three weeks later the doctor announced that he was to wed Isabella
("Pat") Mitchell, his housekeeper. It was a fairly quiet
ceremony. On the death of his brother, the 19th Lord Sempill, in 1965, the
barony passed in the female line to the 19th Lord’s eldest daughter. It
was assumed that the barony would pass to Ewan Forbes-Sempill but his
cousin, John Forbes-Sempill (only son of the 18th Lord Sempill’s
youngest brother, Rear-Admiral Arthur Forbes-Sempill), challenged the
succession to the baronetcy. The case was taken to the Scottish Court of
Session. The court ruled in favour of Ewan Forbes-Sempill, but when his
cousin continued with his challenge the dispute was taken to Home
Secretary, in whose office the Roll of Baronets is kept by Royal Warrant.
The Lord Advocate was consulted by the Home Secretary, James Callaghan,
and eventually, in December 1968, Mr Callaghan directed that the name of
Sir Ewan Forbes of Craigievar (he had dropped the name of Sempill) should
be entered in the Roll of Baronets.
There were no children of Sir Ewan’s
marriage. His cousin, John Alexander Cumnock Forbes-Sempill, born 1927,
now succeeds to the baronetcy.
4.3 The
law concerning the correction of Birth Certificates in Scotland for people
treated for transsexualism was decided by the case of X in 1965 ‘where a
person correctly registered as a male at birth subsequently changed sex a
petition to correct an error presented under the Registration of Births,
Deaths and Marriages (Scotland) Act 1854 (c80) (repealed) was refused’.
4.4 Clearly,
Forbes’s correction of Birth Certificate and subsequent marriage in 1952
pre-dated the case of X. According to the press of the day, he had carried
out a ‘re-registration of birth and change of Christian name’ by
obtaining from the Sheriff of Aberdeen ‘a warrant for birth
re-registration’. However, his succession to the baronetcy came after that
although the decision in X was clear that the regulations for correcting
birth certificates did not give ‘any sanction for recording changes which
have subsequently occurred’ unless ‘the sex of a child was indeterminate
at birth and it was later discovered when the child developed that an error
had been made’. Of course, the current medical viewpoint is that just such
an error is made and that people treated for transsexualism are sexually
indeterminate at birth. The arguments that found favour in the case of Ewan
Forbes’s succession in 1968 are clearly crucial, therefore.
4.5 The
concern is that no records of the case are available. It was held entirely
in secret, under section 10 of the Administration of Justice (Scotland) Act
1993. Thus, there are no records of its proceedings or even of its existence
in the records of the Court of Session or at the Public Records Office. In
reply to a recent inquiry, the Lord Advocate stated that his department held
relevant documents but:
Because of the confidential nature of the
Section 10 proceedings and determination, I have reached the view that it
would not be appropriate for me to let you see copy papers or indeed
disclose the details which they contain. I have also contacted the Rt Hon
the Lord Rodger of Earlsferry, Lord President of the Court of Session in
Scotland. He has taken the view that he has no power under either the 1933
Act or the Court of Session Act 1988 to give authority for the release of
the determination.
4.6 However,
it is clear from the legal and medical evidence which is in the public
domain that Ewan Forbes’s was a case of transsexualism. First, Lord
Kilbrandon, in his definitive work on Scots law states that it was a change
of sex:
In 1967, however, a petition was brought
before the court to determine who was the heir male of the late Lord
Sempill, and the procedure appears to have been unique in that it took
place entirely in secret. The decision of the case depended on the sex of
Ewan Forbes-Sempill, who was registered in infancy as female but underwent
a change of sex as an adult. The petition, which was brought under a
Section 10 procedure, was heard by Lord Hunter in a solicitor’s office,
no decision or judgement was ever issued, and no Press report of the case
was therefore possible. . . It is a device for maintaining secrecy in
judicial proceedings which one would like to believe would be rarely if
ever invoked since it is so directly in conflict with the principle that
justice should be seen to be done.
Second, the medical expert Professor C N
Armstrong, describing without naming the Ewan Forbes case, states:
In 1967 I was a witness in a very
important case to determine legally in court the sex of a person in regard
to a title (I am not allowed to disclose the name as the case was held in
camera). In that case I put forward my four criteria of sex which I
published in the book Intersexuality in vertebrates including man which
was published in 1964 and of which I was a contributing author and
co-editor. The four criteria were (1) chromosomal sex M46,XY or F46,XX;
(2) gonadal sex testes or ovaries; (3) apparent sex: external genitalia
and body form; and (4) psychological sex: psychosexuality and behaviour.
Normally, all four criteria indicate the same sex; if they do not, the
case is one of intersex.
The court accepted my four criteria as
the criteria of sex; the Judge considered all four, and the fourth
criterion influenced his final judgement.
4.7 The
legal decision which granted full civil status to Ewan Forbes was entirely
appropriate. However, when the same medical expert presented the same
criteria in Corbett v Corbett, the medical viewpoint which had been
confirmed by the case of Sir Ewan Forbes was disallowed. The discrepancy in
these judgements could not be identified because of the enforced secrecy of
the case of Ewan Forbes and the unavailability of its documentation. Thus,
not only was justice not seen to be done in the Forbes case but justice was
effectively impeded in all subsequent legal hearings concerning the civil
status of people treated for transsexualism. This is a matter of great
concern to the legal experts who advise the Parliamentary Forum.
5
Current medical concerns about the status quo
5.1 The
World Health Organisation defines health as ‘ a state of complete
physical, mental and social well-being and not merely the absence of any
disease or infirmity’. It is a matter of concern to the UK medical
community that the current legal status of people who have been treated for
Transsexualism works against their achievement of this. Their legal status
marginalises individuals who have no visible difference from others and
prevents them from being able to integrate, make relationships or live
fulfilling lives and thus impairs quality of life.
5.2 Medically,
this inappropriate legal status means that patients are obliged to live with
an unnecessarily stigmatising condition. The success rate for treatment of
transsexualism is very high and the medical treatment which they receive
enables the majority of individuals to live an otherwise quite normal,
unremarkable life. An important part of the doctor’s role is to support
the individual through the series of rigorous procedures and process of
extreme change which constitute the typical effective model of treatment.
The aim is to ensure that the individual will be able to live a balanced and
fulfilled life in their reassigned gender role, that they will have a
positive sense of themselves and be able to realise their full potential,
after a lifetime of discomfort and limitation. The typical patient works
through this difficult and lengthy medical agenda with courage, patience and
dignity. From the above it is obvious that the inability of individuals to
document in its entirety their true sex undermines to a great extent the
treatment which we give them.
5.3 Quite
simply, the lack of an appropriate legal status means that the patient is in
the constant situation of having to believe two quite opposite things about
themselves at the same time, that on the one hand they are female and that
on the other hand they are male. This is a massive assault on their sense of
self, their well-being and, potentially, on their mental stability.
5.4 The
impossibility of having a complete identity because of the failure of
society to allow transsexuals to alter all documentation is likely to affect
the individual adversely in a variety of ways. To be constantly reminded of
one’s past history and diagnoses is therapeutically counterproductive and
militates against the acceptance of body image and the resolution of their
new gender role. Possible consequences are distress and despair, leading to
clinical depression, with social withdrawal, diminished self-worth and
self-esteem.
5.5 It
is clear from this that the current legal status of people treated for
transsexualism works directly against their health, as defined by the WHO,
and against the best efforts of medicine to maintain their healthy status.
It is impossible not to conclude that from the medical point of view, the
legal circumstances of these individuals constitute a fundamental violation
of their right to human dignity and thus to health.
6
Conclusions
6.1 The
evidence presented above indicates that transsexualism’s correct
classification must now be considered to be that of an intersex condition.
This does not, of course, preclude its continued entry in DSM, where it
performs the purpose of differential diagnosis, nor does it compromise its
current location in chapter 5 of ICD. As the World Health Organization
points out in this context:
the ICD cannot change the taxonomic
assignment of disease entities each time a new etiology is described as
this would prevent the effective retrieval of information . . . this has
been the case for example with the discovery of the viral etiiology of a
number of tumours and the identification of mitochondrial cytopathies,
chromosomal breakage syndromes and the antiphospholid syndrome as the
causes of a relatively large number of conditions that are scattered
throughout the classification but which have retained their traditional
assignment even in the light of this new knowledge.
We wish to reassert unambiguously that the
criteria for determining sex which were used in the case of Corbett v
Corbett are now so out of date that to continue to use them would be
irrational. The criteria which must now be applied to determine biological
sex are external genitalia; internal genitalia; brain formation; and
chromosomes and if any one of these criteria are incongruent with the other
three then the case is one of intersex and must be treated as such. Again,
we wish to state unambiguously that this means that in the case of people
diagnosed as transsexual, an error is made at birth about their sex which is
subsequently corrected.
6.2 Whilst
Corbett v Corbett is scientifically invalid, it appears still to be
good law. However, there have been recent developments in European Community
law in the case of P v S and Cornwall County Council, which have
acknowledged that to discriminate against a transsexual person is to
discriminate on the basis of sex. There is, therefore, a recognition of
social and economic rights of people treated for transsexualism but not of
their basic civil identity.
6.3 There
are no legal problems which might arise from a recognition of the civil
identity of people treated for transsexualism which could not be dealt with
a matter of the normal course of law. Other jurisdictions would simply
accommodate themselves to this as they have in the light of the decision in P
v S and Cornwall County Council.
6.4 From
a legal point of view, this means, equally unambiguously, that there is no
reason why people who have been diagnosed and treated for transsexualism
should not have equal civil liberties in their correct(ed) sex. As the
Advocate General put it in the case of P v S and Cornwall County Council,
to consider otherwise would be ‘a betrayal of the true essence of that
fundamental and inalienable value which is equality’.
Citation:
an article published on the Internet by Lynn Jones, MP
<http://www.lynnejones.org.uk/legal1.htm>
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