Legal aspects of transgenderism
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A person may be considered to be a transgender person if their gender identity is inconsistent or not culturally associated with the sex they were assigned at birth, and consequently also with the gender role and social status that is typically associated with that sex. They may have, or may intend to establish, a new gender status that accords with their gender identity. Transsexual is generally considered a subset of transgender, but some transsexual people reject being labelled transgender.
Globally, most legal jurisdictions recognise the two traditional gender identities and social roles, man and woman, but tend to exclude any other gender identities, and expressions. However, there are some countries which recognize, by law, a third gender. There is now a greater understanding of the breadth of variation outside the typical categories of "man" and "woman", and many self-descriptions are now entering the literature, including pangender, polygender, genderqueer and agender. Medically and socially, the term "transsexualism" is being replaced with gender identity or gender dysphoria, and terms such as transgender people, trans men and trans women are replacing the category of transsexual people.
This raises many legal issues and aspects of transgenderism. Most of these issues are generally considered a part of family law, especially the issues of marriage and the question of a transsexual person benefiting from a partner's insurance or social security.
The degree of legal recognition provided to transgenderism varies widely throughout the world. Many countries now legally recognise sex reassignments by permitting a change of legal gender on an individual's birth certificate. Many transsexual people have permanent surgery to change their body, Sexual Reassignment Sugery (SRS) or semi-permanently change their body by hormonal means, Hormone Replacement Therapy (HRT). In many countries, some of these modifications are required for legal recognition. In a few, the legal aspects are directly tied to health care; i.e. the same bodies or doctors decide whether a person can move forward in their treatment, and the subsequent processes automatically incorporate both matters.
In some jurisdictions, transgender people (who are considered non-transsexual) can benefit from the legal recognition given to transsexual people. In some countries, an explicit medical diagnosis of "transsexualism" is (at least formally) necessary. In others, a diagnosis of "gender dysphoria," or simply the fact that one has established a non-conforming gender role, can be sufficient for some or all of the legal recognition available. The DSM-V recognizes Gender Dysphoria as the official diagnoses.
Legislative efforts to recognise gender identity
|Country||Date||Gender identity/expression legislation||Upper house||Lower house||Head of state|| Final|
|Japan||July 2003||Act on Special Cases in Handling Gender for People with Gender Identity Disorder||Passed||Passed||Signed||Yes|
|United Kingdom||July 2004||Gender Recognition Act||Passed||Passed||Signed||Yes|
|Spain||March 2007||Gender identity law||Passed||Passed||Signed||Yes|
|Uruguay||November 2009||Gender identity law||20||0||51||2||Signed||Yes|
|Argentina||May 2012||Gender identity law||55||0||167||17||Signed||Yes|
|Denmark||September 2014||Gender Recognition law||N/A||Passed||Signed||Yes|
|Malta||April 2015||Gender Identity, Gender Expression and Sex Characteristics Act||N/A||Passed||Signed||Yes|
|Colombia||June 2015||Gender recognition law (Order 1227)||Passed||Passed||Signed||Yes|
|Ireland||July 2015||Gender Recognition Act||Passed||Passed||Signed||Yes|
|Vietnam||November 2015||Transgender Rights Law||N/A||Passed||Signed1||Yes|
|Ecuador||February 2016||Civil Registration Act (gender identity recognition on legal documents)||N/A||82||1||Signed||Yes|
|Bolivia||May 2016||Gender identity law||Passed||Passed||Signed||Yes|
|Norway||June 2016||Gender identity law||N/A||79||13||Signed||Yes|
|France||November 2016||Gender identity law (abolishing sterilization)||Passed||Passed||Signed||Yes|
|Chile||December 2016||Gender identity law||Pending|
|Costa Rica||Unknown||Gender identity recognition and equality before the law||N/A||Proposed|
|Peru||Unknown||Gender identity law||N/A||Proposed|
|Portugal||Unknown||Gender identity law||N/A||Pending|
|Sweden||Unknown||Gender identity law||N/A||Pending|
1The law is expected to come into effect on January 1, 2017.
The Constitution of South Africa forbids discrimination on the basis of sex, gender and sexual orientation (amongst other grounds). The Constitutional Court has indicated that "sexual orientation" includes transsexuality.
In 2003 Parliament enacted the Alteration of Sex Description and Sex Status Act, which allows a transgender person who has undergone medical or surgical gender reassignment to apply to the Department of Home Affairs to have the sex description altered on their birth record. Once the birth record is altered they can be issued with a new birth certificate and identity document, and are considered "for all purposes" to be of the new sex.
On 16 September 2013, a Colombian transgender woman coming from Taiwan claimed that she was discriminated and sexually abused by the customs officers, including being subjected to invasive body searches and denied usage of a female toilet, although Hong Kong officers denied the allegations. After being released, she applied for and was granted refugee status by the United Nations High Commissioner for Refugees (UNHCR), rendering her effectively stateless awaiting acceptance to a third country.
On 10 July 2003, the National Diet of Japan unanimously approved a new law that enables transsexual people to amend their legal sex. It is called 性同一性障害者の性別の取扱いの特例に関する法律 (Act on Special Cases in Handling Gender for People with Gender Identity Disorder) The law, effective on 16 July 2004, however, has controversial conditions which demand the applicants be both unmarried and childless. On 28 July 2004, Naha Family Court in Okinawa Prefecture returned a verdict to a transsexual woman in her 20s, allowing her family registry record or koseki to be amended as she was born a female. It is generally believed to be the first court approval under the new law. Despite the fact that sex reassignment surgery and hormone replacement therapy are mandatory for a legal sex change, it is not paid for by national health insurance.
There is no legislation expressly allowing transsexuals to legally change their gender in Malaysia. The relevant legislations are the Births and Deaths Registration Act 1957 and National Registration Act 1959. Therefore, judges currently exercise their discretion in interpreting the law and defining the gender. There are conflicting decisions on this matter. There is a case in 2003 where the court allowed a transsexual to change her gender indicated in the identity card, and granted a declaration that she is a female. However, in 2005, in another case, the court refused to amend the gender of a transsexual in the identity card and birth certificate. Both cases applied the United Kingdom case of Corbett v Corbett in defining legal gender.
The Supreme Court of the Philippines Justice Leonardo Quisumbing on 12 September 2008, allowed Jennifer Cagandahan, 27, to change both his birth certificate, gender and name from Jennifer to Jeff, to male: "We respect respondent’s congenital condition and his mature decision to be a male. Life is already difficult for the ordinary person. We cannot but respect how respondent deals with his unordinary state and thus help make his life easier, considering the unique circumstances in this case. In the absence of a law on the matter, the court will not dictate on respondent concerning a matter so innately private as one's sexuality and lifestyle preferences, much less on whether or not to undergo medical treatment to reverse the male tendency due to rare medical condition, congenital adrenal hyperplasia. In the absence of evidence that respondent is an 'incompetent,' and in the absence of evidence to show that classifying respondent as a male will harm other members of society [...] the court affirms as valid and justified the respondent's position and his personal judgment of being a male." Court records showed that – at 6, he had small ovaries; at 13, his ovarian structure was minimized and he had no breasts and did not menstruate. The psychiatrist testified that "he has both male and female sex organs, but was genetically female, and that since his body secreted male hormones, his female organs did not develop normally." The Philippines National Institutes of Health said "people with congenital adrenal hyperplasia lack an enzyme needed by the adrenal gland to make the hormones cortisol and aldosterone.
This, however, only applies to cases involving congenital adrenal hyperplasia and other intersex situations. The Philippine Supreme Court has also ruled that Filipino citizens do not have the right to legally change their sex on official documents (driver's license, passport, birth certificate, Social Security records, etc.) if they are transsexual and have undergone sexual reassignment surgery. The Court said that if the man, now anatomically a female, were to be allowed to legally change his sex it would have "serious and wide-ranging legal and public policy consequences," citing the institution of marriage in particular.
In South Korea, it is possible for transgender individuals to change their legal gender, although it depends on the decision of the judge for each case. Since the 1990s, however, it has been approved in most of the cases. The legal system in Korea does not prevent marriage once a person has changed their legal gender.
In 2006, the Supreme Court of Korea ruled that transsexuals have the right to alter their legal papers to reflect their reassigned sex. A trans woman can be registered, not only as female, but also as being "born as a woman."
While same-sex marriage is not approved by South Korean law, a transsexual woman obtains the marital status of 'female' automatically when she marries to a man, even if she has previously been designated as "male."
A majority of countries in Europe give transgender people the right to at least change their first name, most of which also provide a way of changing birth certificates. Several European countries recognize the right of transsexuals to marry in accordance with their post-operative sex. Croatia, Czech Republic, Denmark, Finland, France, Germany, Ireland, Italy, the Netherlands, Norway, Poland, Portugal, Romania, Sweden, Spain, and the United Kingdom all recognize this right. The Convention on the recognition of decisions regarding a sex change provides regulations for mutual recognition of sex change decisions and has been signed by five European countries and ratified by Spain and the Netherlands.
Since 1980, Germany has a law that regulates the change of first names and legal gender. It is called "Gesetz über die Änderung der Vornamen und die Feststellung der Geschlechtszugehörigkeit in besonderen Fällen (de:Transsexuellengesetz – TSG)" (Law about the change of first name and determination of gender identity in special cases (Transsexual law – TSG)). However, the name change becomes legally void if a child is born more than 300 days after the name change.
In the past, German law required parents to give their child a gender-specific name. This is no longer true, since the Federal Constitutional Court of Germany held in 2008 that there is no obligation that a name has to be sex-specific, even if it is the only one. One can either obtain a change of name alone, and proceed later with a change of legal gender, if possible or desired, or obtain both in a single legal procedure.
For both, two independent medical court experts have to be commissioned by the judge. They are asked to evaluate, whether
- the person "does not identify with the birth-assigned sex/gender, but with the other one", and
- "feels a compulsion to live according to his/her ideas for at least three years", and
- it is to be assumed with high probability, that the feeling of belonging to the other sex/gender is not going to change".
For the change of legal gender, it was also once required that the person
- is permanently infertile, and
- has had surgery through which their outer sexual characteristics are changed to a "significant approximation" to the appearance of their preferred biological sex.
These requirements were declared unconstitutional by supreme court ruling in a 2011.
Originally, the law stated that neither change of name nor legal gender were available for people under 25 years of age. This condition has been declared void by the courts, and today there is no minimum age. Until 2008, the person had to be unmarried.
The TSG applies only to German citizens; there are exceptions only for non-German citizens with very specific legal status, such as stateless people living legally in Germany, or in case the foreign state has no equivalent law, which would be in accordance with German constitution.
Several court decisions have further specified several matters. For example, a person with only a name change has the right to be called "Herr" or "Frau" (Mr. or Mrs.) according to their first name, not their legal gender; similarly, documents have to be issued reflecting their actual gender identity, not legal gender. Job references, certifications and similar from the time before the change of name may be reissued with the new name, so effectively there is no way for a new employer to learn about the change of name and/or legal gender. Also, people with only a name change do not have to divulge their legal gender to employers.
Republic of Ireland
In the Republic of Ireland, it was not possible for a transsexual person to alter their birth certificate until 2015. The High Court took a case by Lydia Foy in 2002 that was turned down, as a birth certificate was deemed to be a historical document.
Foy took new proceedings to the High Court relying on the decisions of the European Court of Human Rights in the Goodwin and "I" cases. Her application was heard between 17 and 26 April 2007, and judgment was reserved. Judgment was given in the High Court on 19 October 2007. The Judge held that the Irish State had failed to respect Foy's rights under Article 8 of the European Convention on Human Rights by not providing any mechanism for her to obtain a new birth certificate in her female gender. He indicated that he would grant a declaration that Irish law in this area was incompatible with the Convention. He also said he would have found her right to marry under Article 12 of the Convention had been infringed as well if that had been relevant. On 14 February 2008, the Judge granted a declaration that sections of the Civil Registration Act 2004 were incompatible with Article 8 of the Convention. This was the first declaration of incompatibility made under the European Convention on Human Rights Act passed in 2003.
The government appealed this decision, but dropped its appeal in June 2010 and set up an advisory group of civil servants to make recommendations for new legislation. The advisory group's report was published in July 2011, but there was controversy over some of its recommendations, notably that married transgender persons would have to divorce before they could be recognised in their new gender. At the launch of the report the Minister responsible stated that the Government would introduce gender recognition legislation as soon as possible. No legislation had been introduced by February 2013, so Foy issued new proceedings in the High Court seeking a declaration that the State was obliged to issue her with a new birth certificate in her female gender, or that the State was in breach of the Irish Constitution or the European Convention on Human Rights because it had failed to provide her with an effective remedy for the violation of her rights .
On July 15, 2015, Ireland passed the Gender Recognition Act of 2015 that allows legal gender changes without the requirement of medical intervention or assesment by the state. Such change is possible through self-determination for any person aged 18 or over resident in Ireland and registered on Irish registers of birth or adoption. Persons aged 16 to 18 years must secure a court order to exempt them from the normal requirement to be at least 18. Ireland is one of four legal jurisdictions in the world where people may legally change gender through self-determination.
The first milestone sentence in the case of gender shifting was given by Warsaw's Voivode Court in 1964. The court reasoned that it be possible, in face of civil procedure and acting on civil registry records, to change one's legal gender after their genital reassignment surgery had been conducted. In 1983, the Supreme Court ruled that in some cases, when the attributes of the individual's preferred gender were predominant, it is possible to change one's legal gender even before genital reassignment surgery.
In 2011, Anna Grodzka, the first transgender MP in the history of Europe who underwent a genital reassignment operation was appointed. In the Polish Parliamentary Election 2011 she gained 19 337 votes (45 079 voted for her party in the constituency) in the City of Cracow and came sixth in her electoral district (928 914 people, voter turnout 55,75%). Grodzka is reportedly the only transsexual person with ministerial responsibilities in the world since 10 November 2011.
In Romania it is legal for transgender people to change their first name to reflect their gender identity based on personal choice. Since 1996, it has been possible for someone who has gone through genital reassignment surgery to change their legal gender in order to reflect their post-operative sex. Transsexuals then have the right to marry in accordance with their post-operative sex.
Historically transsexual people in the United Kingdom have succeeded in having their birth certificates changed and marriages conducted. This was first legally challenged in the 1960s in the case of Ross Alexander, where the Court of Session ruled that the certificate change was legitimate for the purposes of inheriting a title, a decision later upheld by the Home Secretary. The case was held secretly and in a Scottish court, and there was not a publicly reported case in an English court until 1970.
That year, in the case of Corbett v Corbett, Arthur Corbett attempted to annul his marriage to April Ashley on the grounds that transsexuals were not recognised by English law. It was decided that, for the purposes of marriage, a post-operative transsexual was considered to be of the sex they were assigned at birth. This set the precedent for the coming decades. People who thought that they had existing valid marriages turned out not to, and the previous unofficial changing of birth certificates was stopped. Even so, transsexual people were able to change their names freely, to have their passports and driving licences altered, to have their National Insurance details changed. The Sex Discrimination Act 1975 later made it illegal to discriminate on the ground of anatomical sex in employment, education, and the provision of housing, goods, facilities and services.
In the 1980s and 1990s the pressure group Press for Change campaigned in support for transgender and transsexual people to be allowed to marry, and helped take several cases to the European Court of Human Rights. In Rees v. United Kingdom (1986), the court decided that the UK was not violating any human rights, but that they should keep the situation under review. The Sex Discrimination (Gender Reassignment) Regulations 1999 extended the existing Sex Discrimination Act, and made it illegal to discriminate against any person on the grounds of gender reassignment, but only in the areas of employment and vocational training.
In the 2002 case Goodwin v. United Kingdom, the European Court of Human rights decided the rights to privacy and family life were being infringed. In response to its obligation, the UK Parliament passed the Gender Recognition Act 2004, which effectively granted full legal recognition for transgender people.
The Equality Act 2006 introduced the Gender Equality Duty in Scotland, which made public bodies obliged to take seriously the threat of harassment or discrimination of transsexual people in various situations. In 2008, the Sex Discrimination (Amendment of Legislation) Regulations extended existing regulation to outlaw discrimination when providing goods or services to transsexual people. The definition of "transsexual" used in the Gender Equality Duty is still technically the same as that in the Sexual Discrimination Act, but this legislation was also meant to prevent discrimination against all transgender people.
The Equality Act 2010 officially adds "gender reassignment" as a "protected characteristic," stating that:
A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex.
Some trans rights activists, such as Transgender Equality & Rights in Scotland, advocate adding the category of "gender identity," "in order to be more clearly inclusive of those transgender people who do not identify as transsexual and do not intend to change the gender in which they live". They also want to introduce measures that would more explicitly include intersex people and clarify protections from discrimination in education, certain kinds of employment, and medical insurance.
As of 2010, the Green Party supports a reform of the UK's Mental Health Act to remove transgender people from the Psychiatric Disorder Register, which they view as discriminatory. They also oppose the "spousal veto," described by Pink News as "a stipulation in the Marriage (Same Sex Couples) Act that married transgender people can only be legally recognised as their correct gender if their spouse gives permission".
In contrast to some systems elsewhere in the world, the Gender Recognition process does not require applicants to be post-operative. They need only demonstrate that they have suffered gender dysphoria, have lived as "your new gender" for two years, and intend to continue doing so until death.
Jurisdiction over legal classification of characteristic sex in Canada is assigned to the provinces and territories. This includes legal change of gender classification, for which the requirements vary from one sub-federal jurisdiction to another.
Canada's Parliament was considering Bill C-279, which would amend both the Canadian Human Rights Act and Criminal Code to include protection of gender identity. In the Bill gender identity means an individual's deeply felt internal and individual experience of gender, which may or may not correspond with the sex that the individual was assigned at birth. The Bill passed the House of Commons, went to the Senate where it was amended, then got sent back to the House of Commons where it ultimately died due to the calling of the Canadian federal election, 2015. On December 3, 2015, in the new parliament, it was reintroduced as bill C-204. The governing party in Canada announced on May 17, 2016 the introduction of a new Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code.
Pursuant to the U.S. Const., Amend. 10, which reserves to the states (or to the people) all powers not assigned to the federal government, the legal classification of characteristic sex is state jurisdiction in the United States. The principle is generally extended to the District of Columbia and U.S. territories, though the federal government has power to overrule any decision those non-state entities might make. Thus, the legal gender of a transsexual (as well as a transsex or intersex) individual in the United States does not have one answer but 56 answers – one for each state, the District of Columbia, and the five inhabited territories (American Samoa, Guam, the Northern Marianas Islands, Puerto Rico, and the US Virgin Islands).
South America has some of the most progressive legislation in the world regarding transgender rights. Transgender persons are allowed to change their name and gender on legal documents in a majority of countries. Argentina, Bolivia, Colombia and Ecuador allow individuals to change their name and gender without undergoing medical treatment, sterilization or judicial permission. In Uruguay a judicial order is required. In Chile and Brazil, transgender persons can change their legal gender and name after completion of medical intervention. Judicial permissions are required. Peru allows legal name change after surgery, however gender change is not allowed by courts.
In 2012 the Argentine Congress passed the Ley de Género (Gender Law), which allows individuals over 18 to change the gender marker in their DNI (national ID) on the basis of a written declaration only. Argentina thus became the first country to adopt a gender recognition policy based entirely on individual autonomy, without any requirement for third party diagnosis, surgeries or obstacles of any type.
The Gender Identity law allows individuals over 18 to legally change their name, gender and photography on legal documents. No surgeries or judicial order are required. The law took effect on August 1, 2016.
Since 2016, Ecuadorians are allowed to change their birth name and gender identity (instead of the sex assigned at birth) on legal documents and national ID cards. The person who wants to change the word "sex" for "gender" in the identity card shall present two witnesses to accredit the self-determination of the applicant.
In October 2009, lawmakers passed the Gender identity law allowing transgender people over the age of 18 to change their name and legal gender on all official documents. Surgery, diagnosis or hormone therapy are not a requirement but a judicial permission is required. Applicants cannot request a second change for at least five years.
Estelle Asmodelle was Australia's first legal transsexual with the Births, Deaths and Marriages Dept. (NSW Government). This was the first time in Australian legal history that an adult transsexual was permitted to change their birth certificate to a different sex. Soon afterwards the passport laws also changed to allow the sex on passports to be changed.
Australia is now one of only a few countries where post-operative transsexual people are granted legal status via a new full birth certificate. Birth certificates are within the jurisdiction of the states, whereas marriage and passports are matters for the Commonwealth. All Australian jurisdictions now recognise the affirmed sex of an individual after surgery unless the person is married.
In the landmark case New South Wales Registrar of Births, Deaths and Marriages v Norrie  the High Court of Australia held that the Births Deaths and Marriages Registration Act 1995 (NSW) did not require a person having undergone genital reassignment surgery to identify as either a man or a woman. The Court refuted the binary notion of sex, and the held that the Act itself recognises a person may be a gender other than male or female. The ruling permits a gender registration of "non-specific".
Passports are issued in the preferred gender, without requiring a change to birth certificates or citizenship certificates. A letter is needed from a medical practitioner which certifies that the person has had or is receiving appropriate treatment for transition.
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- Transitioning (transgender)
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- LGBT people in prison
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- Transgender Law Center – California civil rights organization advocating for transgender communities through direct legal service, public policy advocacy, and educational opportunities
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- Trans Gender Title and Name Change Information and Advice on Trans Gender Title and Name Changes in the United Kingdom
- Press for Change – UK information about the trans rights campaign and details about the legal, medical, political, and social issues surrounding transgender people
- Sylvia Rivera Law Project – US based cooperative organization founded on the understanding that gender self-determination is intertwined with racial, social, and economic justice
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- Instructions for changing name and sex on birth certificate – State-by-state instructions for US and Canada
- – Australian WOMAN Network provides support and advocacy for people who are surgically affirming or have affirmed a sex opposite that assigned to them at birth
- Illinois Gender Advocates Illinois advocacy group for transgender people
- Family Court Endorses Transsexual Marriage
- Kevin and Jennifer Revisited