An Overview of the Foreign Judgments on sex reassignment 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).

Various countries have given recognition to the gender identity in cases where transsexual persons started asserting their rights after undergoing SRS (sex reassignment surgery) of their re-assigned sex. Here is the overview of cases of different countries-

Court of England

In Corbett v. Corbett (1970)[1], the Court in England was concerned with the gender of a male to female transsexual in the context of the validity of a marriage.

Ormrod, J. in that case took the view that the law should adopt the chromosomal, gonadal and genital tests and if all three are congruent, that should determine a person’s sex for the purpose of marriage. Judge expressed the view that any operative intervention should be ignored and the biological sexual constitution of an individual is fixed at birth, at the latest, and cannot be changed either by the natural development of organs of the opposite sex or by medical or surgical means.

Later, in R v. Tan (1983)[2], the Court of Appeal applied Corbett approach in the context of criminal law. The Court upheld convictions which were imposed on Gloria Greaves, a post-operative male to female transsexual, still being in law, a man.

Criticism

Corbett principle was not found favor by various other countries, like New Zealand, Australia etc. and also attracted much criticism, from the medical profession. It was felt that the application of the Corbett approach would lead to a substantial different outcome in cases of a post-operative inter-sexual person and a post-operative transsexual person.

Court of New Zealand

In New Zealand in Attorney-General v. Otahuhu Family Court (1995)[3], Justice Ellis noted that once a transsexual person has undergone surgery, he or she is no longer able to operate in his or her original sex. It was held that there is no social advantage in the law for not recognizing the validity of the marriage of a transsexual in the sex of reassignment.

The Court held that an adequate test is whether the person in question has undergone surgical and medical procedures that have effectively given the person the physical conformation of a person of a specified sex.

Court of Australia

In Re Kevin (Validity of Marriage of Transsexual) (2001)[4], in an Australian case, Chisholm J., held that there is no formulaic solution to determine the sex of an individual for the purpose of the law of marriage.

It was held that all relevant matters need to be considered, including the person’s life experiences and self-perception. Full Court of the Federal Family Court in the year 2003 approved the above-mentioned judgment holding that in the relevant Commonwealth marriage statute the words man and woman should be given their ordinary, everyday contemporary meaning and that the word man includes a post-operative female to male transsexual person.

The Full Court also held that there was a biological basis for transsexualism and that there was no reason to exclude the psyche as one of the relevant factors in determining sex and gender.

Department of Social Security v. SRA, (1993) and R v. Harris & McGuiness (1988)

Lockhart, J. in Secretary, Department of Social Security v. SRA, (1993)[5] and Mathews, J. in R v. Harris & McGuiness (1988)[6], made an exhaustive review of the various decisions with regard to the question of recognition to be accorded by Courts to the gender of a transsexual person who had undertaken a surgical procedure.

The Courts generally in New Zealand held that the decision in Corbett v. Corbett (supra) and R v. Tan (supra) which applied a purely biological test, should not be followed.

In fact, Lockhart. J. in SRA observed that the development in surgical and medical techniques in the field of sexual reassignment, together with indications of changing social attitudes towards transsexuals, would indicate that generally they should not be regarded merely as a matter of chromosomes, which is purely a psychological question, one of self-perception, and partly a social question, how society perceives the individual.

A.B. v. Western Australia (2011)

A.B. v. Western Australia (2011)[7] was a case concerned with the Gender Reassignment Act, 2000. In that Act, a person who had undergone a reassignment procedure could apply to Gender Reassignment Board for the issue of a recognition certificate.

Under Section 15 of that Act, before issuing the certificate, the Board had to be satisfied, inter alia, that the applicant believed his or her true gender was the persons reassigned gender and had adopted the lifestyle and gender characteristics of that gender. Majority of Judges agreed with Lockhart, J. in SRA that gender should not be regarded merely as a matter of chromosomes, but partly a psychological question, one of self-perception, and partly a social question, how society perceives the individual.

House of Lords

The House of Lords in Bellinger v. Bellinger (2003)[8] was dealing with the question of a transsexual. In that case, Mrs. Bellinger was born on 7th September, 1946. At birth, she was correctly classified and registered as male. However, she felt more inclined to be a female. Despite her inclinations, and under some pressure, in 1967 she married a woman and at that time she was 21 years old. Marriage broke down and parties separated in 1971 and got divorce in the year 1975.

Mrs. Bellinger dressed and lived like a woman and when she married Mr. Bellinger, he was fully aware of her background and throughout had been supportive to her. Mr. and Mrs. Bellinger since marriage lived happily as husband and wife and presented themselves in that fashion to the outside world. Mrs. Bellingers primary claim was for a declaration under Section 55 of the Family Law Act, 1986 that her marriage to Mr. Bellinger in 1981 was at its inception valid marriage.

The House of Lords rejected the claim and dismissed the appeal. Certainly, the psychological factor has not been given much prominence in determination of the claim of Mrs. Bellinger.

Court of Malaysia

The High Court of Kuala Lumpur in Re JG, JG v. Pengarah Jabatan Pendaftaran Negara (2006)[9], was considering the question as to whether an application to amend or correct gender status stated in National Registration Identity Card could be allowed after a person has undergone SRS. It was a case where the plaintiff was born as a male, but felt more inclined to be a woman.

In 1996 at Hospital Siroros she underwent a gender reassignment and got the surgery done for changing the sex from male to female and then she lived like a woman. She applied to authorities to change her name and also for a declaration of her gender as female, but her request was not favourably considered, but still treated as a male. She sought a declaration from the Court that she be declared as a female and that the Registration Department be directed to change the last digit of her identity card to a digit that reflects a female gender.

The Malaysian Court basically applied the principle laid down in Corbett (supra), however, both the prayers sought for were granted, after noticing that the medical men have spoken that the plaintiff is a female and they have considered the sex change of the plaintiff as well as her psychological aspect. The Court noticed that she feels like a woman, lives like one, behaves as one, has her physical body attuned to one, and most important of all, her psychological thinking is that of a woman.

European Court 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.”

Van Kuck v. Germany

The European Court of Human Rights in the case of Van Kuck v. Germany (2003) dealt with the application alleging that German Courts decisions refusing the applicants claim for reimbursement of gender reassignment measures and the related proceedings were in breach of her rights to a fair trial and of her right to respect for her private life and that they amounted to discrimination on the ground of her particular psychological situation.

Reliance was placed on Articles 6, 8, 13 and 14 of the Convention for Protection of Human Rights and Fundamental Freedoms, 1997. The Court held that the concept of private life covers the physical and psychological integrity of a person, which can sometimes embrace aspects of an individual’s physical and social identity.

For example, gender identifications, name and sexual orientation and sexual life fall within the personal sphere protected by Article 8. The Court also held that the notion of personal identity is an important principle underlying the interpretation of various guaranteed rights and the very essence of the Convention being respect for human dignity and human freedom, protection is given to the right of transsexuals to personal development and to physical and moral security.

Conclusion

Judgments referred to above are mainly related to transsexuals, who, whilst belonging physically to one sex, feel convinced that they belong to the other, seek to achieve a more integrated unambiguous identity by undergoing medical and surgical operations to adapt their physical characteristic to their psychological nature.

When we examine the rights of transsexual persons, who have undergone SRS, the test to be applied is not the Biological test, but the Psychological test, because psychological factor and thinking of transsexual has to be given primacy than binary notion of gender of that person.

Seldom people realize the discomfort, distress and psychological trauma, they undergo and many of them undergo Gender Dysphoria which may lead to mental disorder. Discrimination faced by this group in our society, is rather unimaginable and their rights have to be protected, irrespective of chromosomal sex, genitals, assigned birth sex, or implied gender role. Rights of transgenders, pure and simple, like Hijras, eunuchs, etc. have also to be examined, so also their right to remain as a third gender as well as their physical and psychological integrity.

For this article, reference has been taken from the case ‘National legal service authority v. Union of India, (2014)’. The conclusion part is the observation of the Indian Supreme Court.

[1] (1970) 2 All ER 33

[2] (1983) QB 1053, 1063-1064

[3] (1995) 1 NZLR 603

[4] (2001) Fam CA 1074

[5] (1993) 43 FCR 299

[6] (1988) 17 NSWLR 158

[7] (2011) HCA 42

[8] (2003) 2 All ER 593

[9] (2006) 1 MLJ 90,