Report | Doc. 6100 | 16 August 1989
Condition of transsexuals
Committee on Legal Affairs and Human Rights
A. Draft recommendation
presented by the Legal Affairs Committee 
(open)The Assembly,
a. the reference to the sex of the person concerned is to be rectified in the register of births and in the identity papers;
b. a change of forename is to be authorised;
c. the person's private life is to be protected;
d. all discrimination, particularly in the sphere of work relations, is prohibited.
B. Explanatory memorandum by Mr Rodotà
(open)1. In present-day societies, there is a tremendous need for ethnic, linguistic, racial, cultural and sexual identity. The "right to an identity" is claimed by individuals and groups with particular intensity, which seems to be increasing as reverse-processes of standardisation gain ground in culture, behaviour and consumer habits. This growing uniformity brings home the need to redefine identity on the basis of our experience of difference, according to a line of research already initiated by various scholars (mainly French, for example, Jacques Derrida, Gilles Deleuze, Claude Lévi-Strauss). The very principle of equality is understood not as an obligation to conform, but as a rational basis on which to build a "right to be different". In the social structure, all this leads to the emergence of what Alvin Toffler called "a society of minorities"; it is certainly no coincidence that one of the major sources of information on the problems of transsexualism, the magazine lila, styles itself a "Christian information monthly for sexual minorities".
It can be generally added that identity has become a more burning issue as it approaches a critical point owing to rapid strides in the processes of modernisation, instability and insecurity of roles in societies which are subjected to ceaseless change. Research by Bell, Berger and Dahrendorf, for instance, has tended in this direction. More specifically, the American sociologist Talcott Parsons has demonstrated that identity represents "the core system of meanings of an individual personality" and is therefore a "code" enabling the individual to give meaning to his actions in his own and other people's eyes.
2. This is the broad perspective in which the question of recognition of sexual identity must be placed. For transsexuals, escape from "sexual indeterminateness" is vital in forming their personality, in giving structure and meaning to their private lives.
That the problem of transsexualism is raised openly and unambiguously is the outcome of a combination of factors:
i. clear differentiation between situations formerly superimposed or at least considerably overlapping, such as homosexuality, transsexualism, intersexuality, hermaphroditism and transvestism;
ii. cultural acceptance and greater social tolerance of sexual states not fitting a model of sexual "normality";
iii. pharmacological and surgical advances allowing effective treatment of transsexualism.
Even though scientists still argue about the causes of transsexualism, there is general agreement on a definition of this phenomenon as "an individual's firm conviction of being a member of the opposite sex, with the intense and obsessive desire to change his sexual condition, anatomy included, in order to live under an outward appearance suiting his self-image". Thus, there is a clear contrast with homosexuality, which is typified by sexual attraction to a person of the same sex, and with transvestism, which is more a type of fixation on the apparel of the opposite sex.
3. Transsexualism thus presents itself as a problem of correct construction of individuality, of correspondence between appearance and reality. Apart from the psychological aspects or those of pharmaceutical and surgical techniques, the question is whether or not legislation should be relied on to achieve this result in legal terms. It has in fact been argued that the legislator should observe a "wholesome restraint".
In general, there is no reason why it should not be possible to settle the legal problems surrounding transsexualism without a special law, through a flexible interpretation of existing laws on personal status. In actual fact, however, it should be observed that, in several countries, the absence of a law is what has impeded a satisfactory settlement of the various issues regarding the condition of the transsexual. Accordingly, legislation seems the most effective instrument for a reliable and consistent settlement of this combination of issues, while also ensuring that they are not left to the exclusive appraisal of the medical profession.
Furthermore, the very characteristics of transsexualism seem to invalidate the objection that a law covering transsexualism would encourage its spread. Also, we should definitely reject the argument that the very small percentage of transsexuals in the population as a whole renders the problem statistically insignificant, so that recourse to legislation is inadvisable. In point of fact, we are confronted with a problem which affects basic individual rights and cannot be assessed by purely quantitative criteria.
Statistical observation, moreover, does not yet provide any very definite results. The incidence of the transsexual syndrome is estimated by some authorities at about one case per 100 000 inhabitants, while others put it at double that figure (one case per 50 000) and still others consider the phenomenon to be substantially underestimated; they think there might be from one to eight cases per 100 000 inhabitants in the Western world. There is also uncertainty as regards the distribution by sex: in the past, it was claimed that transsexualism was actually six times more frequent among men than among women, whereas present-day figures indicate that the frequency is only one and a half times higher for males.
What must be done therefore is to define with precision the aims of a law governing at least the principal aspects of transsexualism. It should be clear from what has been said above that the point is to specify the essential conditions under which a private frame of reference can be correctly built up in transsexuals and made fully consistent with the public image.
This, firstly, entails legitimising the various treatments for realising the true sexual identity, as well as legal recognition of this "new" identity. Hence the "psychological" sex prevails, as it were, over the "genetic" one. A more analytical distinction is drawn in paragraph 16 of the Rees judgment, between psychological sex and chromosomal, gonadal and apparent sex (as revealed by examination of the external genitalia and body form).
It is observed that anatomical, biological or genetic sex and psychological sex are clearly defined and differentiated from the outset. The overriding importance assumed by the former at the time when the individual's gender identity is formally established (registration of birth) derives from observation of his/her external characteristics as the sole indication at the time of birth. Psychological sex, on the other hand, is the result of a more complex process whose complete workings are not yet precisely established, which ends with the full maturation of the individual at adulthood. By this stage, when the process of maturation is completed, the individual should be in possession of the instruments needed to define his identity, since psychological sex is what determines sexual behaviour. Basically, it is a matter of making the "psyche" and the "physis" correspond, as the Bundesverfassungsgericht (Constitutional Court) of the Federal Republic of Germany observed in its decision of 11 October 1978. "Human dignity and the basic right to free development of the personality", according to the same decision, "therefore require that sex be adapted to the individual's personal condition, and specifically to the sex to which he belongs according to his physical and psychological make-up." Decision No. 161 of 24 May 1985 by the Italian Constitutional Court takes the same line in accepting "a new concept of sexual identity which breaks with the past, in that, for the purposes of such identification, attention is no longer paid exclusively to the external genitalia as observed at the time of birth or in their 'naturally' developed state, but also to factors of a psychological and social nature".
Thus, the necessary legal apparatus centres on the "right to sexual identity", understood as a fundamental right and as a prerequisite for the realisation of other rights which are substantially those recognised in the European Convention on Human Rights under Articles 3 (prohibition of inhuman or degrading treatment), 8 (respect for private life), 12 (right to marry and found a family) and 14 (prohibition of discrimination on the ground of sex). (In this connection, the reports of the European Commission and the judgments of the European Court of Human Rights in the cases of Van Oosterwijck, 1980, and Rees, 1986, are fundamental.) On that basis the other rights of the transsexual can be secured, such as those relating to employment. It should also be obvious that enjoyment of the right to sexual identity presupposes the coverage of medical and surgical costs by social services or insurance.
4. This is the trend followed by many European countries' legislation or equivalent judicial and administrative procedures. There are nevertheless serious misgivings, particularly apparent in French case-law, where recognition of the transsexual's new personal status is concerned. In two major decisions of 1987 by the Cour de Cassation (Cassation civile, 1ère Chambre, 3 March 1987 and 31 March 1987), the legal materiality of transsexualism is contested in substance, it being considered a phenomenon related to a "deliberate intention of the subject", without involving a sex change from the genetic point of view. Thus, it is argued, "medicine and law cease to concur" and "psychological" sex is legally immaterial.
A similar viewpoint can be found in the leading British decision in the case of Corbett y. Corbett (1970), where the judge, Mr Ormrod, laid special emphasis on the "biological" nature of the criteria to be applied. The transsexual's position under the British system is not, however, completely prejudiced by this decision, firstly because, although it related to general issues, it was delivered in the specific context of marriage and, secondly, because the British system affords the transsexual various avenues for having his new identity publicly recognised, particularly a change of forename. It was this very consideration which enabled the European Court of Human Rights to observe in the Rees case that, "albeit with delay and some misgivings on the part of the authorities, the United Kingdom has endeavoured to meet the applicant's demands to the fullest extent that its system allows".
The decision by the French Court of Cassation and the judgment in the case of Corbett v. Corbett have each been variously criticised, and there have been efforts in several directions to overcome the obstacles they raise. In a decision subsequent to that of the Court of Cassation, the Paris court on 20 October 1987 ordered the replacement of "male" by "female" in the applicant's birth certificate, considering that the applicant had from an early age consistently and compulsively experienced and expressed his conviction that he was a member of the female sex, that the hormonal treatment and surgical operations undergone were not freely chosen, but had been dictated, on the basis of irreversible pre-existent factors, by therapeutic imperatives which the most highly qualified medical specialists had certified alter five years' observation of the subject, and that consequently his present condition, showing the biological and psychological characteristics of a female person without the slightest symptom of neurotic or psychotic disorders, bore witness to a sex change brought about by a cause beyond his control. In so reasoning, the Paris judges set out to surpass the position upheld by the Court of Cassation, by linking the sex change with objective, preexistent causes so that the distinction between psychological and biological sex became a secondary consideration and the decisiveness of the subject's intention was refuted.
In an effort to circumvent the difficulties arising from the traditional legal constructions, which allow rectification of gender classification only in the event of a factual error made at the time of registration, the Luxembourg courts have followed in the footsteps of the Paris court. In a decision of 18 December 1985, the first division of the Luxembourg District Court ruled that it could not authorise "a sex change carried out on the ground solely of personal expediency". It held that "the change must not be artificial, but must be the unavoidable result of a state of necessity". It nevertheless added that "the surgical operation, to have any legal effect, must have revealed characteristics which were already present, not artificially created". By this expedient, the sex change of the person concerned was recognised.
The expedient used in all the above decisions is to assert that the surgical operation or the hormonal treatments do not create a new sexual identity meeting a psychological need of the per-son concerned, but simply make apparent what already existed. Thus, the subject's intention is relegated to a secondary position, and the situation caused by the entry in the register can be treated as a factual error of gender classification.
In a report by the "Transsexuals" group to the Prime Minister in 1988, it \vas proposed not to introduce legislation which would rationalise governmental and Court action.
Yet the very fact that it is necessary to resort to such argument clearly reveals uneasiness on the judges' part. A more fitting and realistic approach, therefore, seems to be the one adopted in Switzerland by the Tribunal Fédéral des Assurances in a decision of 6 June 1988, which departed from precedent by recognising the legal materiality of sex change for the purposes of payment of surgical fees by the sickness fund. The decision freely admitted that the grounds stated for the same court's decision of 24 November 1976, had "patently lapsed", and overruled a decision of 1979 deemed "no longer in keeping with the new circumstances or with current legal conceptions".
These assertions are based on medical evidence, yet to be considered in the leading French decisions. The Swiss courts forcefully emphasise that "the majority of patients, who are generally in a state of great psychological distress and often in considerable danger of suicide – once they are rid of the organs characterising the sexual identity which they reject – achieve a satisfactory mental balance which would not otherwise have been attained". Society's acceptance of the surgical treatment and of the transsexual's new condition, which is naturally vital to the mental balance of the persons concerned, can be significantly fostered by legal rules which take account of the altered situation and adapt to it.
5. The gradual lapse of a negative approach to the phenomenon of transsexualism can be clearly illustrated by developments in the German and Italian systems. With its decision of 11 October 1978, the Bundesverfassungsgericht reacted to the negative line taken by the Bundesgerichtshof in its decision of 21 September 1971, and authorised the reassignment of a transsexual. The decision of the Bundesverfassungsgericht was soon followed and confirmed by legislation, the Transsexuellengesetz of 10 September 1980.
The Italian Constitutional Court addressed the issue for the first time in its decision of 1 August 1979, No. 98. 'The full lawfulness of a sex change operation was recognised, but it was contested that inviolable human rights included "the right to recognition and registration of a different sex from the one at birth, acquired through surgical transformation to suit an innate personality". It was held that such recognition could come only from the legislator, which was what happened in a very substantial way with the "Rules for rectification of gender classification" (Law No. 164 of 14 April 1982). The Constitutional Court subsequently ruled on this law (decision of 24 May 1985, No. 161), acknowledging that the provisions applying to transsexualism are not at variance with the constitutional principles concerning the safe-guard of the person and his basic rights, health and marnage.
The way had been opened by the Swedish law of 21 April 1972. In Europe, various countries now recognise transsexualism through a range of legal instruments: the law (Sweden, Federal Republic of Germany, Italy, Netherlands, law of 26 September 1984); court practice (Switzerland and, to some extent, Luxembourg, France and United Kingdom); and administrative authorisation (Austria, Denmark, Norway). Similar arrangements can be found in the United States, there being a host of court decisions, some state laws (Illinois 1962, Arizona 1968, Louisiana 1968, California 1977) and administrative regulations, in Canada (Alberta, Quebec, British Columbia 1973), and in South Africa (Births, Marriages and Deaths Registration (Amendment) Act, 1974).
It may be helpful to outline here the most significant of these procedures and the chief issues outstanding. In many cases, a clear distinction is drawn between authorisation of a change of forename (widely permitted) and formal recognition of a sex change (subject to more restrictive rules). This is what happens in the United Kingdom, for example, where a change of forename is very easy, requiring just a declaration by the applicant which is merely noted by the authorities.
A clear distinction between these two aspects of the problem is basic to German law, where there is a kleine Lösung (minor solution) specifically linked with the change of sex, and a grosse Lösung (major solution) referring to the actual determination of sexual identity. Under Swedish, Italian and Netherlands law, however, the distinction is non-existent: emphasis is placed on rectification of the gender classification, of which the change of forename becomes a mere consequence.
To initiate the rectification procedure (one authority speaks of a real "gender daim"), various conditions may be laid down. In many cases, what is defined in the United States as a "real life test" is stipulated, namely a trial period during which the person must live to the full his new gender role (dress, hair removal treatment in the case of male-female transsexualism, etc.). The period may vary from three years (prescribed by German law, which is very strict, both for the kleine Lösung and for the grosse Iösung) to two years (Netherlands), or be unspecified but sufficient to provide a foretaste of future life in that gender role (Sweden). Italian law, here as in other areas, is very liberal and prescribes no trial period.
A further condition explicitly laid down by German and Swedish law is that the rectification procedure cannot be initiated by married persons. Consequently, those concerned must obtain a divorce or at least the dissolution of marriage before initiating the procedure. In Italy, no such condition is laid down, but it is stipulated that the reassignment of one of the spouses constitutes a ground per se for divorce, which implies that the procedure can also be initiated by a married per-son.
Reassignment can be requested only by persons of majority age. A higher age (25 years) was laid down by German law in accordance with an opinion that this was the age of full sexual maturity in respect of the gender role, but this provision was considered unconstitutional by the Constitutional Court. In Sweden, the request for certification can be made considerably in advance of the statutory age; it can be submitted by the guardian of a minor or by a minor no longer subject to guardianship; anyone over 12 years of age (apparently the minimum age of application) must give his consent.
As to surgical operations, approaches range from (technical) illegality (Luxembourg) to complete freedom of individual choice (generally attended by repayment of costs by the medical services: Federal Republic of Germany, Switzerland, United Kingdom). In other cases, the surgical operation must have prior administrative authorisation (Sweden) or court assent (Italy). Italian law, nevertheless, provides that, in cases where the surgical operation has been performed without authorisation, it is no longer an offence if the request for reassignment is subsequently granted.
The special safeguards which may be prescribed in relation to treatments (surgical, hormonal) are warranted by the irreversible effects which can result. In this respect, the "two-stage" system prescribed by German law offers an interesting solution, in enabling the transsexual to remain at the forename change stage, without taking the physically more constraining steps on which full recognition of a different sexual identity depends. In fact, all that is needed for a change of forename is an expert report by two different specialists, indicating "a considerable likelihood of constancy in the applicant's feelings regarding the sex to which he belongs". Provision is also made for requesting the cancellation of the decision granting a new forename when the applicant "feels he once more belongs to the sex shown on the birth certificate".
For the grosse Lösung, however, it must be certified that there has been "a surgical operation to transform outward sexual characteristics, resulting in a clear approximation to the body form of the other sex". Under other systems, the certification is only optional and can therefore be recommended by the court (France, Italy) or is in no way provided for by law (Sweden).
An expert report is nevertheless always required where the law explicitly provides that recognition of a new sexual identity is possible only in respect of a person incapable of procreation (Sweden, Netherlands, Federal Republic of Germany).
Of course, particularly in systems requiring authorisation for the surgical operation, there arises the difficult problem of the judicial or administrative body's margin of unfettered decision. In the presence of a reliable diagnosis of transsexualism, is it possible to refuse authorisation, as has happened in a few cases (for example in Italy)? I think the answer should be no, considering the preponderance given to psychological sex by those systems which have explicitly made it the basis of a new sexual identity.
In addition, the various systems prescribe the more or less automatic procedures for change of forename as a consequence of the certification of a new sexual identity. In some cases, express restrictions are placed on disclosure of the previous identity (Transsexuellengesetz, Sections 5 and 15; Italian law, Article 5). Protection of the transsexual's privacy is nevertheless a general problem, so that limits can be inferred from the rules or principles concerning the protection of private life: the California Court of Appeal, in the case of Diaz v.Oakland Tribune (1983), found that the disclosure of an item concerning the past sexual identity of a person lacked any informational value and ordered the culprit to pay $525 000 by way of punitive damages and $250 000 by way of compensatory damages for the emotional distress it had caused the transsexual.
6. However, once a new sexual identity is acquired, a whole range of further problems may arise. These involve marriage before or after the change, relationship with children, applicability of given laws, and the discrimination which may befall the transsexual.
It has already been said that, under some laws, unmarried status is a condition for certification of the new identity and that, in other cases, the spouse's reassignment can be specified as a ground per se for dissolution of marriage. As regards children born before the new identity was certified, obviously nothing changes in their status in relation to the transsexual parent (see for instance Transsexuellengesetz, Section 11).
The question regarding the transsexual's subsequent marriage is more complex. The case-law of countries not having passed legislation in this field shows a tendency to penalise the marriage of transsexuals, by declaring it void for non-fulfilment of the sex difference requirement. The famous Corbett v. Corbett case hinged on this argument, which is criticised precisely because it gives a completely arbitrary interpretation of the "essential role of a woman in marriage" and of her aptitude "for natural heterosexual intercourse", considering that the female identity originating from the sex change precludes only the ability to procreate, which cannot be regarded as an essential constituent of marriage. A further question is, of course, that one spouse may be unaware of the other's previous sex change; here, in order to have the marriage dissolved, there is the possibility of applying the various national laws governing breach of faith between spouses.
In general, transsexuals in possession of a new identity come under the aforementioned laws in so far as they are compatible (see for instance Section 12 of the Transexuellengesetz). This aspect is particularly important in relation to employment, which has been the subject of many court decisions, chiefly in the United Kingdom (see in particular E. A. White y. British Sugar Corporation, 1977; Regina v. Tan and Others, 1983) and in the United States (see in particular Ulane v. Eastern Airlines, 1984). Without going into the details of the many specific problems which have already arisen in this field, transsexuals can be said to be entitled to the same protection against discrimination as is prescribed for members of the sex to which they presently belong. Any other form of discrimination related to their being transsexuals must be deemed unlawful.
Basic legal bibliography
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