Test 2

Please select your preferred language.





Remember Me

New to Fridae?

Fridae Mobile


More About Us

12 Dec 2007

trans law 101

While we now have books and court decisions on "transgender rights," maybe we need a bit of guidance on terms and issues. Here is an introduction on Trans Law 101 by Prof Douglas Sanders.

"Transgender" started to be used in the 1990s as an 'umbrella' term covering transvestites, transsexuals and others whose behaviour fell outside the Ken and Barbie standard-brand images of males and females. It does not include all gays and lesbians. And it does not include intersexuals.

Transamerica (2005) - a Golden Globe Award-winning and Academy Award-nominated independent comedy-drama - is one of the first mainstream movies to look at the practical problems faced by a pre-operative transgender woman.
The term "transsexual" refers to individuals who identify as members of the "opposite" sex. They go further than simply choosing clothing and hairstyles that give them an androgynous appearance, or a "butch" or "fem" look. They may cross-dress much or all of the time. They may go further and seek some bodily change by hormones or surgery. And they may seek sex reassignment surgery (SRS).

Sex reassignment surgery started to become generally available in the West in the 1960s. Since that time it has become available in most parts of the world. It is prohibited in Malaysia for Muslims, but allowed in Iran. I have not seen a list of countries which ban the procedure.

The Harry Benjamin International Gender Dysphoria Association, formed in 1979, issued a set of "standards" that are relied on by most doctors internationally.

An individual seeking SRS must be assessed by psychologists or psychiatrists as having "gender identity disorder" (the phrase used by the American Psychiatric Association, DCM-IV) or as being a "transsexual" (the term used by the World Health Organization, ICD-10).

The person will then be prescribed hormones and after living in the desired sex for a period, perhaps two years, will be eligible for SRS. This pattern was illustrated in the US movie TransAmerica.

The Harry Benjamin Association has been renamed the World Professional Association for Transgender Health, and the "standards" are to be reconsidered.

Personal documents

The first issue that went to court concerned personal documents. Transsexuals faced problems every time they had to use personal identity documents, whether opening a bank account, showing a driver's license, interviewing for a job or international travel. Nong Toom, Thailand's most famous transsexual (of Beautiful Boxer fame), recalled having problems at virtually all immigration check points when she traveled.

When the issue first went to the European Court of Human Rights, the judges were unfamiliar with transsexual issues and not yet really sympathetic to sexual orientation claims. They generally rejected the claims. The Court reversed itself in 2002 in Goodwin v United Kingdom. The judges held that Goodwin, a post-operative male-to-female (MTF) transsexual, was entitled to have her identity documents changed, including driver's license, birth certificate and passport.

In Grant v United Kingdom in 2006 the Court ruled that the post-operative sex had to be respected. Grant was entitled to a government pension at the age of 60, the age of eligibility for women. She did not have to wait until she was 65, the age for men.

The right of post-operative transsexuals to have their documents changed is now recognised throughout Europe, North America, Australia and New Zealand. In Asia it is recognised in Indonesia, Japan, Korea, Singapore and Taiwan. Some individuals have been able to get corrected documents in China as well, but patterns there may not be nationally consistent. The Supreme Court in the Philippines in 2007 rejected the right of an MTF to have personal documents changed.

The right to marry

If your birth certificate and other documents are changed, you will in fact be able to marry in your post-operative sex. In this way, the right to marry seems to have developed in practice, at least in North America, as a side benefit to the right to have documents changed.

In the Goodwin case the European Court of Human Rights addressed the issue directly. The Court ruled that the right to marry in the European Convention on Human Rights applied to transsexuals. They had both the right to corrected documents and, independently, the right to marry in their post-operative sex.

The right to treatment

The right to treatment first arose in an oblique way, through a case on medical insurance. The European Court of Human Rights in 2003 in van Kuck v Germany ruled that German courts had discriminated against transsexuals by interpreting a health insurance contract as excluding SRS. In other words, SRS was recognised as a legitimate medical procedure and not simply as some form of elective cosmetic surgery (like a nose job or a face-lift).

The right to treatment was dealt with directly for the first time by the European Court of Human Rights in L v Lithuania in September, 2007. Lithuania had signed the European Convention on Human Rights as required for all members of the European Union and the Council of Europe. A provision in the Lithuanian Civil Code said that unmarried adults had a right to SRS if this was medically possible. Subsidiary legislation was required to implement the provision. A bill to implement the provision was submitted to the Lithuanian parliament in 2003, but withdrawn with the Chairman of the parliament officially stating his objection to SRS.

L was a female-to-male (FTM) transsexual who was medically diagnosed as a transsexual, given hormonal treatment for a period, had breast removal surgery and was able to gain a gender-neutral name on both birth certificate and passport. L was led to believe SRS would be provided, but it was never made available.

The Court could be sympathetic, for clearly the government medical system had recognised that L was a transsexual and begun a course of treatment. Then it stopped, for no medical reason. In court the government of Lithuania referred to the "cultural specificities and religious sensitivities of Lithuanian society" Moralistic opposition had set in, bringing to a halt a course of treatment that doctors had begun.

It was not clear whether the FTM surgery could be done in Lithuania. The government health system in Lithuania already had provisions to pay for treatment outside the country, so competence within Lithuania was not an issue in the case.

The Court ruled that Lithuania was in violation of Article 8 of the European Convention on Human Rights, the provision on respect for a person's private life. Article 8, over the years, has developed into a general protection of homosexual and now transsexual rights.

Conditions for SRS or document change

Individuals seeking treatment or recognition often face conditions. A diagnosis may turn on whether the person is emotionally disturbed (reflecting the fact that transsexualism is seen as a mental problem, not a physical issue). Many transsexuals have attempted suicide, but many now know that they have to tell the doctors that they have been suicidal (whether or not it is true). Doctors may insist that the individual have no successful erotic history, a goal of heterosexual relations (understood in terms of post-operative sexual characteristics) and not be married or have children.

In September, 2007, an Australian court upheld a ban on changed documents in a case where an MTF remained married. In October, 2007, the Japanese Supreme Court refused to change the identity documents of two MTFs because they had children. Both had divorced their wives, but that was not enough.

Is SRS necessary for recognition?

The court cases have all focused on individuals who have had or are seeking genital surgery. But most transsexuals have not had that surgery, and many do not want it. It is irreversible. It may reduce or eliminate erotic feeling. And, in the case of FTM surgery, it is notoriously unreliable. It is impossible to construct a fully functional penis.

As a result, legislation in the United Kingdom, Germany and Spain makes provision for individuals - who have been diagnosed as transsexuals and are living in the desired sex - to gain altered documents without having to complete genital surgery. In Germany this includes the passport, but not the birth certificate. In New Zealand a passport indicting "sex" as "x" is available to a transsexual who has not had genital surgery.

Protection from discrimination

The European Court of Justice ruled in 2002 that discrimination on the basis of sex reassignment was a form of discrimination on the basis of "sex." It was therefore prohibited by the treaty establishing the European Union. All countries in the European Union are required to have laws which prohibit discrimination on the basis of sex reassignment. Court cases in North America have tended to say that discriminatory acts based on sexual orientation or gender identity are not forms of discrimination on the basis of "sex." Anti-discrimination laws only cover those categories if they are specifically named or if the law is 'open-ended' with some catch-all phrase, such as "or other status."

In 2007 an intense debate continued in the United States about ENDA, the Employment Non-Discrimination Act, which, if enacted at the national level, would bar discrimination on the basis of sexual orientation. Leading LGBT NGOs said they would only support legislation that included "gender identity" as well. The issue split LGB activists. Gay congressman Barney Frank said that an LG ENDA could pass congress, but not an LGT ENDA.

A number of states in the US bar discrimination on the basis of gender identity. Canada has national legislation barring such discrimination."

Job protection for feminine men and masculine women
There are two leading - and contradictory - US judicial decisions. In Price Waterhouse v Hopkins, the US Supreme Court in 1989 held that the national law banning sex discrimination covered discrimination based on gender stereotypes. A very successful senior woman was denied a partnership on the basis that she was not feminine enough. She won her case.

But in 2006 the US Court of Appeals for the Ninth Circuit held that Darlene Jespersen, a very successful bar tender at Harrah's Casino in Las Vegas could be fired for rejecting new rules on personal appearance. She never wore makeup, but was now required:

to wear foundation, blush, mascara, and lip color, and to ensure that lip color was on at all times. Jespersen and her female colleagues were required to meet with professional image consultants who in turn created a facial template for each woman. Jespersen was required not simply to wear makeup; in addition the consultants dictated where and how the makeup was to be applied.

Since US federal courts have uniformly held that discrimination on the basis of sexual orientation is not discrimination on the basis of sex, her lawyers described her as a gender non-conforming woman. The L word was not used - but everyone involved in the litigation knew she was lesbian. Her lawyers came from the National Centre for Lesbian Rights. She probably lost because she was not just gender non-conforming. Oddly Las Vegas casinos were allowed to be less tolerant of sex/gender diversity than the great international accounting consultancy now named PriceWaterhouseCoopers.


Paisley Currah, Richard Juang, Shannon Price Minter, Transgender Rights, University of Minnesota Press, 2006.

Joanne Meyerowitz, How Sex Changed: A History of Transsexuality in the United States, Harvard University Press, 2002.

Andrew Sharpe, Transgender Jurisprudence, Cavendish, London, 2002.

David Valentine, Imagining Transgender, Duke University Press, 2007.

Stephen Whittle, Respect and Equality, Cavendish, London, 2002.

TransgenderAsia, http://www.web.hku.hk/~sjwinter/TransgenderASIA

My thanks to Dr Sam Winter for information and comments. Douglas Sanders is a retired Canadian law professor, living in Bangkok. He can be contacted at sanders_gwb@yahoo.ca.

Reader's Comments

1. 2007-12-17 00:30  
Oddly enough, a tonne of information without any Asian specific content other than a brief mention of Nong Toom in half a paragraph. Whatever happened to "Empowering Gay (and Lesbian, and Trans-gendered, and Bisexual) Asia" ?
2. 2007-12-19 21:04  
The column refers to Japan, Malaysia, Singapore, Indonesia, Taiwan and Korea, as well as to Nong Toom.


Please log in to use this feature.


This article was recently read by

Select News Edition

Featured Profiles

Now ALL members can view unlimited profiles!


View this page in a different language:

Like Us on Facebook


 ILGA Asia - Fridae partner for LGBT rights in Asia IGLHRC - Fridae Partner for LGBT rights in Asia