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
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.
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’
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.
6.1 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>