December 4, 2022

An Overview of Foreign Legislation on Sexual Re-Assignment Surgery

Right of a person to have the gender of his/her choice. When a child is born, at the time of
birth itself, sex is assigned to him/her. A child would be treated with that sex thereafter, i.e. either a
male or a female. However, as explained in detail in the accompanying judgment, some persons,
though relatively very small in number, may born with bodies which incorporate both or certain
aspects of both male or female physiology. It may also happen that though a person is born as a
male, because of some genital anatomy problems his innate perception may be that of a female and
all his actions would be female oriented. The position may be exactly the opposite wherein a person
born as female may behave like a male person.

In earlier times though one could observe such characteristics, at the same time the underlying
rationale or reason behind such a behavior was not known. Over a period of time, with in depth
study and research of such physical and psychological factors bevaviour, the causes of this behaviour
have become discernable which in turn, has led to some changes in societal norms. Society has
starting accepting, though slowly, these have accepted the behavioral norms of such persons without
treating it as abnormal.

Further, medical science has leaped forward to such an extent that even physiology appearance of a person can be changed through surgical procedures, from male to female
and vice-versa. In this way, such persons are able to acquire the body which is in conformity with
the perception of their gender/gender characteristics. In order to ensure that law also keeps pace
with the aforesaid progress in medical science, various countries have come out with Legislation
conferring rights on such persons to recognize their gender identity based on reassigned sex after
undergoing Sex Re-Assignment Surgery (SRS)

Following the trend, in the international human rights law, many countries have enacted laws for recognizing rights of transsexual persons, who have undergone either partial/complete SRS (Sexual Re-Assignment Surgery), including United Kingdom, Netherlands, Germany, Australia, Canada, Argentina, etc.

Read also,An Overview of the Foreign Judgments on sex reassignment surgery

United Kingdom

United Kingdom has passed the General Recommendation Act, 2004, following the judgment in Christine Goodwin, passed by the European Courts of Human Rights.

In Christine Goodwin v. United Kingdom (2002), the European Court of Human Rights examined an application alleging violation of Articles 8, 12, 13 and 14 of the Convention for Protection of Human Rights and Fundamental Freedoms, 1997 in respect of the legal status of transsexuals in UK and particularly their treatment in the sphere of employment, social security, pensions and marriage.

Applicant in that case had a tendency to dress as a woman from early childhood and underwent aversion therapy in 1963-64. In the mid-1960s she was diagnosed as a transsexual. Though she married a woman and they had four children, her inclination was that her brain sex did not fit her body. From that time until 1984 she dressed as a man for work but as a woman in her free time. In January, 1985, the applicant began treatment at the Gender Identity Clinic.

In October, 1986, she underwent surgery to shorten her vocal chords. In August, 1987, she was accepted on the waiting list for gender re-assignment surgery and later underwent that surgery at a National Health Service hospital. The applicant later divorced her former wife. She claimed between 1990 and 1992 she was sexually harassed by colleagues at work, followed by other human rights violations.

The Court after referring to various provisions and Conventions held as follows:-

“Under Article 8 of the Convention in particular, where the notion of personal autonomy is an important principle underlying the interpretation of its guarantees, protection is given to the personal sphere of each individuals, including the right to establish details of their identity as individual human beings.

In the twenty first century the right of transsexuals to personal development and to physical and moral security in the full sense enjoyed by others in society cannot be regarded as a matter of controversy requiring the lapse of time to cast clearer light on the issues involved. In short, the unsatisfactory situation in which post- operative transsexuals live in an intermediate zone as not quite one gender or the other is no longer sustainable.”

General Recommendation Act, 2004,

The Act is all encompassing as not only does it provide legal recognition to the acquired gender of a person, but it also lays down provisions highlighting the consequences of the newly acquired gender status on their legal rights and entitlements in various aspects such as marriage, parentage, succession, social security and pensions etc.

One of the notable features of the Act is that it is not necessary that a person needs to have undergone or in the process of undergoing a SRS to apply under the Act. Reference in this connection may be made to the Equality Act, 2010 (UK) which has consolidated, repealed and replaced around nine different anti-discrimination legislations including the Sex Discrimination Act, 1986.

The Act defines certain characteristics to be protected characteristics and no one shall be discriminated or treated less favourably on grounds that the person possesses one or more of the protected characteristics. The Act also imposes duties on Public Bodies to eliminate all kinds of discrimination, harassment and victimization. Gender reassignment has been declared as one of the protected characteristics under the Act, of course, only the transsexuals i.e. those who are proposing to undergo, is undergoing or has undergone the process of the gender reassignment are protected under the Act.

Australia

In Australia, there are two Acts dealing with the gender identity, (1) Sex Discrimination Act, 1984; and (ii) Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act, 2013.

Act 2013 amends the Sex Discrimination Act, 1984. Act 2013 defines gender identity as the appearance or mannerisms or other gender- related characteristics of a person (whether by way of medical intervention or not) with or without regard to the persons designated sex at birth.

Relevant Provisions

Sections 5(A), (B) and (C) of the 2013 Act have some relevance and the same are extracted herein below: –

5A Discrimination on the ground of sexual orientation

(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the aggrieved person’s sexual orientation if, by reason of:

(a) the aggrieved person’s sexual orientation; or

(b) a characteristic that appertains generally to persons who have the same sexual orientation as the aggrieved person; or

(c) a characteristic that is generally imputed to persons who have the same sexual orientation as the aggrieved person; the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person who has a different sexual orientation.

(2) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the aggrieved person’s sexual orientation if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons who have the same sexual orientation as the aggrieved person.

5B Discrimination on the ground of gender identity

(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the aggrieved persons gender identity if, by reason of: (a) the aggrieved persons gender identity; or

(b) a characteristic that appertains generally to persons who have the same gender identity as the aggrieved person; or

(c) a characteristic that is generally imputed to persons who have the same gender identity as the aggrieved person; the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person who has a different gender identity.

(2) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the aggrieved persons gender identity if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons who have the same gender identity as the aggrieved person.

5C Discrimination on the ground of intersex status

(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the aggrieved person’s intersex status if, by reason of:

(a) the aggrieved person’s intersex status; or

(b) a characteristic that appertains generally to persons of intersex status; or

(c) a characteristic that is generally imputed to persons of intersex status;

the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person who is not of intersex status.

(2) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the aggrieved person’s intersex status if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of intersex status.

Various other precautions have also been provided under the Act.

The European Union Legislation on transsexuals

We may in this respect also refer to the European Union Legislations on transsexuals. Recital 3 of the Preamble to the Directive 2006/54/EC of European Parliament and the Council of 5 July 2006 makes an explicit reference to discrimination based on gender reassignment for the first time in European Union Law.

Recital 3 reads as under: –

The Court of Justice has held that the scope of the principle of equal treatment for men and women cannot be confined to the prohibition of discrimination based on the fact that a person is of one or other sex.”

In view of this purpose and the nature of the rights which it seeks to safeguard, it also applies to discrimination arising from the gender reassignment of a person.

European Parliament also adopted a resolution on discrimination against transsexuals on 12th September, 1989 and called upon the Member States to take steps for the protection of transsexual persons and to pass legislation to further that end.

Hungary

Following that Hungary has enacted Equal Treatment and the Promotion of Equal Opportunities Act, 2003, which includes sexual identity as one of the grounds of discrimination.

United States of America

In the United States of America some of the laws enacted by the States are inconsistent with each other. The Federal Law which provides protection to transgenders is The Matthew Shepard and James Byrd. Jr. Hate Crimes Prevention Act, 2009, which expands the scope of the 1969 United States Federal Hate-crime Law by including offences motivated by actual or perceived gender identity.

Around 15 States and District of Colombia in the United States have legislations which prohibit discrimination on grounds of gender identity and expression. Few States have issued executive orders prohibiting discrimination.

South Africa

The Parliament of South Africa in the year 2003, enacted Alteration of Sex Description and Sex Status Act, 2003, which permits transgender persons who have undergone gender reassignment or people whose sexual characteristics have evolved naturally or an intersexed person to apply to the Director General of the National Department of Home Affairs for alteration of his/her sex description in the birth register, though the legislation does not contemplate a more inclusive definition of transgenders.

Argentina

The Senate of Argentina in the year 2012 passed a law on Gender Identity that recognizes right by all persons to the recognition of their gender identity as well as free development of their person according to their gender identity and can also request that their recorded sex be amended along with the changes in first name and image, whenever they do not agree with the self-perceived gender identity.

Not necessary that they seemed to prove that a surgical procedure for total or partial genital reassignment, hormonal therapies or any other psychological or medical treatment had taken place.

Article 12 deals with dignified treatment, respecting the gender identity adopted by the individual, even though the first name is different from the one recorded in their national identity documents. Further laws also provide that whenever requested by the individual, the adopted first name must be used for summoning, recording, filing, calling and any other procedure or service in public and private spaces.

Germany

In Germany, a law has come into force on 5th November, 2013, which allows the parents to register the sex of the children as not specified in the case of children with intersex variation.

According to Article 22, Section 3 of the German Civil Statutes Act reads as follows: –

If a child can be assigned to neither the female nor the male sex then the child has to be named without a specification. The law has also added a category of X, apart from M and F under the classification of gender in the passports.

REFERENCE

National Legal Service Authority v. Union of India, (2014)