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1946 results in Family Law

Page 65 of 98

  • Transgenderism and Transsexuality: Medical and Psychological Viewpoints

  • from PART I - MEDICAL/PSYCHOLOGICAL VIEWS
  • Edited by Jens M. Scherpe
  • Book:
    The Legal Status of Transsexual and Transgender Persons
    Published by:
    Intersentia
    Published online:
    28 November 2017
    Print publication:
    22 December 2015, pp 11-24

  • Summary

    HISTORICAL SKETCH

    THE DEVELOPMENT OF CLINICAL TERMINOLOGY

    The first two clinical cases of the phenomenon later termed transsexualism were described in 1838 by the French psychiatrist Étienne Esquirol, and in 1853 by the German psychiatrist Hieronymus Fränkel. At that time, however, the cases did not attract much public attention. It was only at the end of the 19th century, with the advent of Forensic Psychiatry and Sexology in Austria, Germany and some other European countries, that the phenomenon was studied more closely, and that medical doctors began to think about how they could help their patients. A very influential case study by Carl Westphal, a German psychiatrist, published in 1870, classified his patient as suffering from a delusion. At that time, patients with delusions were usually treated in closed psychiatric hospitals. Persons who would today be classified as male-to-female transsexual individuals, and who engaged in sexual interaction, were – depending on the country in which they were living – at risk of being criminalised for homosexual behaviour and of being sentenced to a term of imprisonment. In Germany, laws against male homosexuality were only revoked at the end of the 1960s, and I have met a number of transsexual persons who served prison sentences for having engaged in sexual partnerships with men before being finally accepted for appropriate treatment, not easily available in Germany in the 1950s.

    The first sex change operation, as it was then called, was performed in 1912 in Berlin on a female-to-male transsexual individual. However, it was some years before Magnus Hirschfeld, a pioneer in sexology, referred to the case in the scientific literature. It is my assumption that this delay in reporting may have been due to the fear of the surgeon involved being accused of inflicting grievous bodily harm on a healthy person, which was, and still is, a crime. At that time, the terms transsexualism and transgenderism had not yet been coined and were unknown. A number of further sex reassignment surgeries were performed in Prague (then Czechoslovakia), Berlin and Dresden (Germany) in the 1920s.

  • Argentina

  • from North and South America
  • Edited by Jens M. Scherpe
  • Book:
    The Legal Status of Transsexual and Transgender Persons
    Published by:
    Intersentia
    Published online:
    28 November 2017
    Print publication:
    22 December 2015, pp 571-584

  • Summary

    LEGAL FRAMEWORK AND STATISTICS

    ACT NO. 26.743 ON GENDER IDENTITY

    Self-Identification and Perception

    In Argentina, the current law on the legal recognition of preferred gender is set out in Act No. 26.743 (‘Gender Identity Act’ or ‘2012 Act’), which was enacted in May 2012. The Gender Identity Act has established a radically new regime for legal gender recognition in Argentina, moving away from the previous, courtcentred system towards a process which prioritises the self-identification and self-perception of transgender individuals. This new departure is evident not only in the way persons can obtain legal recognition but also in the extended and simplified rights which transgender individuals now enjoy regarding appropriate health care. The far-reaching changes which have been enacted by the 2012 Act are evident in Article 2 of the 2012 Act, which defines ‘gender identity’ as ‘the internal and individual way in which gender is perceived by persons, that can correspond or not to the gender assigned at birth, including the personal experience of the body’ (emphasis added). Article 2 continues that a person's perception of their own gender ‘can involve modifying bodily appearance or functions through pharmacological, surgical or other means, provided it is freely chosen.’ Gender identity also includes ‘other expressions of gender such as dress, ways of speaking and gestures.’

    Argentina's Constitutional Regime

    The Gender Identity Act is a product of Argentina's constitutional environment, particularly the right to privacy set out in Article 19 of the National Constitution. Article 19 declares that ‘private personal’ acts, which offend neither public order nor morals and which do not harm third parties, fall within God's will and are not subject to review by judges. Under Article 19, a person cannot be compelled to engage in any act which is not prescribed by law nor can he be prevented from actions which are not proscribed by law. Article 75, subsection 22, incorporates a number of international treaties, conventions and charters into Argentina's constitutional regime. These international agreements, many of which have already recognised the protection of individuals on the basis of gender identity, include, inter alia, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights and the American Convention on Human Rights.

  • New Zealand

  • from Australia and New Zealand
  • Edited by Jens M. Scherpe
  • Book:
    The Legal Status of Transsexual and Transgender Persons
    Published by:
    Intersentia
    Published online:
    28 November 2017
    Print publication:
    22 December 2015, pp 527-568

  • Summary

    TERMINOLOGY AND CULTURAL AND LEGAL CONTEXT

    Aotearoa New Zealand is a common law jurisdiction, with a Parliament and legal system based on the British Westminster system of government, following colonisation in the 19th century. Māori are the indigenous people of Aotearoa and signatories to the Treaty of Waitangi, which Māori consider to allow them to retain self-governance rights and, in particular, Māori customary law.

    Pre-colonial Māori communities were ‘inclusive of whakawāhine’ (a Māori term describing someone born with a male body who has a female gender identity). More recently takatāpui has been reclaimed as a term to describe gay, lesbian, bisexual and trans Māori.

    Today Māori whakawāhine and tangata ira tane (a Māori term describing someone born with a female body who has a male gender identity) remain visible within takatāpui communities. A support network for Māori trans people (Tapatoru), based on the traditional concept of whānau or family, now exists. There are many predominantly Pākehā (European) or Tauiwi (non-Māori) networks.

    New Zealand also has a large Pacific Island population, many of whom acknowledge males who take on traditional female social roles (such as fa'sfafine in Samoa and fakaleiti in Tonga). It is therefore not surprising that the people who made submissions to the New Zealand Human Rights Commission's Transgender Inquiry (see further at section 2.1 below) referred to themselves using a range of terms, including transgender, male-to-female (MtF) and female-to-male (FtM) transsexuals, cross-dressers, queens, intersex, androgynous, genderqueer, takatāpui, fa'sfafine, fakaleiti, whakawahine and tangata ira tane.

    In this chapter, as in To Be Who I Am: Report of the Inquiry into Discrimination Experienced by Transgender People (the Report of the Transgender Inquiry), the term ‘trans’ will be used when it is necessary to use a generic term to describe all of the identities listed above. That is, to describe all those ‘who identify their gender in some way in opposition or outside the gender role which they are meant to fulfil as a result of their sex designation at birth.’

    The focus of this chapter, as elsewhere in this book, is on the issues for trans people who wish to have their ‘nominated sex’ (the sex they self-identify with) recognised as their legal sex (for the purposes of official identity documentation).

  • Preface

    • By Jens M. Scherpe, University of Cambridge, England, and University of Hong Kong, Hong Kong
  • Edited by Jens M. Scherpe
  • Book:
    The Legal Status of Transsexual and Transgender Persons
    Published by:
    Intersentia
    Published online:
    28 November 2017
    Print publication:
    22 December 2015, pp vii-viii

  • Summary

    This book is the result of a research project conducted under the auspices of the Centre for Medical Ethics and Law (CMEL) of the University of Hong Kong, which involved a major international conference on 6 and 7 September 2013 at the University of Hong Kong. It was conceived and planned during my CSAH/CSHSS Early Career Fellowship at the Centre for Research in the Arts, Social Sciences and Humanities (CRASSH), and I am very grateful to the Centre for providing me with the opportunities to work on and discuss my ideas at a very early stage with colleagues from a great number of disciplines. I am equally grateful to my referees for my application for this fellowship, Prof. John Bell (Faculty of Law, University of Cambridge) and Dr Jude Browne (The Jessica and Peter Frankopan Director of the University of Cambridge Centre for Gender Studies), not only for their references but also their continuing support. The project also built on a previous event, the Symposium ‘Challenging Gender, Gender Challenges’, held as the St John's College Martin Lectures at the University of Hong Kong on 11 December 2010 and very generously supported by St John's College/University of Hong Kong and particularly the Master of the College, Rev. Dr Eric Chong.

    The support the project has received in Hong Kong was overwhelming, and I would like to thank (in no particular order) Prof. Scott Veitch, Prof. Philip Beh, Prof. Johannes Chan, Prof. Marco Wan (all of the University of Hong Kong), Dr Chih-hsing Ho (now at the Academia Sinica, Taiwan), Dr Anthony Ng (Wyng Foundation), Michael Vidler (Vidler & Co), Rev. Dr Eric Chong (Master of St. John's College/University of Hong Kong), the students of the 2013 ‘Comparative Family Law’ class at the University of Hong Kong, Earl Deng (barrister-at-law, Chambers of Denis Chang QC SC), Marco Chan, Au Yun Ling, and particularly Polly Yiu who at the time was the administrator of the Centre for Medical Ethics and Law (CMEL) and who managed the conference with all its difficulties with almost superhuman efficiency.

  • Metamorphosis and (Trans) Migrations: Spiritual Dimensions of Gender Transition

  • from PART II - CHRISTIAN VIEWS
    • By Christina Beardsley, Chelsea & Westminster Hospital, London and St Mary's University, Twickenham, London, England
  • Edited by Jens M. Scherpe
  • Book:
    The Legal Status of Transsexual and Transgender Persons
    Published by:
    Intersentia
    Published online:
    28 November 2017
    Print publication:
    22 December 2015, pp 77-100

  • Summary

    INTRODUCTION

    In this chapter I explore two images to illuminate some spiritual dimensions of gender transition. By gender transition I mean the rite of passage by which a transgender person exchanges one mode of gendered living for another. Terms like ‘female-to-male’, ‘male-to-female’, or the notion of exchanging either a male or female presentation for a transgender or gender neutral one, are not simply crude, imprecise, and incapable of capturing the lived reality of that experience. They are also misleading. For example, transgender people often protest that they have never had a sense of belonging to their assigned gender, and that the ‘journey’, such as it was, hardly constituted a watershed. Indeed, they are more likely to view transition as the means to confirm and facilitate the recognition of their gender identity, which is an enduring aspect of their self-understanding, and not something that has been altered or amended by the process of transition.

    Nevertheless, some changes will have occurred. For example, changing one name to match one's own internal sense of gender identity, which might seem a minimal step, can feel momentous to some people. (At the Conference in Hong Kong it was explained that name change is not especially significant for local transgender people as Chinese first names tend to be gender neutral.) Transition may also involve what others may assume to be ‘cross-gendered’ dressing and behaviours, and so-called cosmetic procedures, such as electrolysis, or more extensive interventions, like hormone therapy and surgery. In some transgender people's narratives, these and other features of gender transition are often presented as life-changing – and frequently as life-saving.

    They can also be portrayed as spiritually significant, especially in contrast to the earlier stages of the narrative, where the person is often oppressed by a negative spirituality associated with a sense of unease, or potential conflict with their environment, lack of self-awareness, denial, low self-esteem, or with feelings of entrapment. At some stage, though, spirituality can begin to assume a positive character with the emergence of an overwhelming need to challenge and overcome these limitations, however great a struggle that might entail, in order to be true to one's own sense of gender identity.

  • Questionnaire

  • from PART III - LEGAL VIEWS
  • Edited by Jens M. Scherpe
  • Book:
    The Legal Status of Transsexual and Transgender Persons
    Published by:
    Intersentia
    Published online:
    28 November 2017
    Print publication:
    22 December 2015, pp 103-106

  • Summary

    The purpose of the questionnaire approach is to ensure that the same areas and problems are covered in each national report. Some of the points might not be of relevance in some jurisdictions – but that in itself can be valuable information from a comparative point of view.

    The questionnaire is meant as a guideline and tool and not a straitjacket into which the information must fit. The main aim is that each national report, while following roughly the same structure, is self-contained and readable. Many of the legal rules can only be understood in their full legal, social and cultural context, and a contextual description should not be prevented by rigidly following the questionnaire. Please feel free to add any information you consider relevant. However, in order to make the book and the comparison accessible to readers, please follow the structure indicated with Roman numbers (that said, broadly following the Arabic numbering would presumably be very helpful, too!).

    LEGAL FRAMEWORK AND STATISTICS

    1. Are there/were there specific legal rules dealing with transsexual or transgender persons in your jurisdiction (especially: is there a specific statute or merely an administrative/court practice)?

    Please also describe the historic development leading up to the current law (and the general constitutional/legal framework where appropriate).

    2. Please state what the position of the national health insurance (or equivalent) and/or private health insurance is with regard to costs arising from medical/ psychological treatment where such is legally required/sought.

    3. Please give (where available) statistical information, especially:

  • • (estimated) number of transsexual and transgender persons in your jurisdiction and number of changes of legal sex and/or legal gender (if possible with breakdown of numbers of those persons affirming a female/ feminine and male/masculine legal identity);

  • • number of persons changing their legal sex and/or legal gender that were in an existing formal legal relationship (such as marriage and/or civil/ registered partnership);

  • • number of persons changing their legal sex and/or legal gender who had children at the time of the change (and, if possible, number of persons who became parents after changing legal sex and/or legal gender);

  • • any other relevant/interesting statistical information.

  • Denmark

  • from Europe
  • Edited by Jens M. Scherpe
  • Book:
    The Legal Status of Transsexual and Transgender Persons
    Published by:
    Intersentia
    Published online:
    28 November 2017
    Print publication:
    22 December 2015, pp 147-182

  • Summary

    LEGAL FRAMEWORK AND STATISTICS

    SPECIFIC LEGAL RULES DEALING WITH TRANSSEXUAL OR TRANSGENDER PERSONS

    The General Constitutional Framework of Denmark

    Denmark is a small Scandinavian country with a population of approximately 5.6 million (2014). Denmark is characterised by a high standard of living, the highest taxes in the world, democracy, and universal welfare services, such as free health care and free education. The labour market is flexible, the Danish Model, and men and women work almost the same number of hours. Around 11% of the population are immigrants or their descendants. Denmark is a member of, inter alia, the European Union (EU), the United Nations (UN), the North Atlantic Treaty Organization (NATO), the Organization for Economic Co-operation and Development (OECD), the World Trade Organization (WTO) and the International Monetary Fund (IMF). Denmark is reported to have the lowest levels of corruption in the world, and Danish people are supposedly the happiest individuals.

    The legal foundation in Denmark is the Constitution. Denmark is a constitutional monarchy, and the powers of state are divided between three institutions. The legislative power rests with the Parliament and the king (the government), the executive power belongs to the king (the government), and the judicial power is invested in the courts, who interpret and apply legislation and regulations.

    Statutory laws – in the form of Acts – are passed by the Parliament. Parliament can, and does, delegate rulemaking competencies to administrative bodies (the Ministries) through Acts. The Ministries issue Administrative Orders, which cannot expand or derogate from the delegated mandate. Administrative orders are binding, whereas Administrative Guidelines, issued according to Administrative Orders, are binding for public authorities only, not private citizens. Lower level rules cannot derogate from or expand upper level rules – a distinct hierarchical system of regulation. Public authorities administrate the rights and obligations of citizens, and manage the everyday application of rules in real life. The authorities must apply their discretionary powers in accordance with the procedures and within the framework of the rules (Acts, Administrative Orders, Administrative Guidelines, and the recognised principles of public administration, such as the principle of equality). The rule of law is a fundamental principle in the Danish legal system.

  • Italy

  • from Europe
  • Edited by Jens M. Scherpe
  • Book:
    The Legal Status of Transsexual and Transgender Persons
    Published by:
    Intersentia
    Published online:
    28 November 2017
    Print publication:
    22 December 2015, pp 249-260

  • Summary

    LEGAL FRAMEWORK

    There is currently no single, uniform law which regulates the status of transsexual or transgender persons in Italy. Italian law does not define trangenderism and transsexualism. Italy first introduced legislation for the legal recognition of preferred gender in 1982. The Sex Reassignment Act 1982 (‘the 1982 Act’) does not specifically regulate the status of transsexual or transgender persons, but rather establishes a set of requirements which an individual must satisfy in order to have their gender identity recognised in Italian law.

    Italy has adopted legislation which prohibits discrimination on the basis of gender identity. Under Article 3.1 of the Italian Constitution, all citizens have ‘equal social dignity’ and are ‘equal before the law’, without distinction as to ‘sex, race, language, religion, political opinion, personal and social conditions’. Recognising that the right to privacy protects self-determination and that sexuality, as well as a person's sexual life, are at the core of private life, there has been a recent trend towards better protection for the identity of the person and, as a result, increased social integration of transsexual and transgender persons. Various regional laws now expressly use the language of ‘transgender’ and numerous draft laws have been published which would protect transgender persons against discrimination and sexual crimes.

    CHANGING LEGAL SEX AND GENDER – REQUIREMENTS AND PROCEDURE

    Under Italian law, the registration of a new birth must always include the name and legal gender of the child. The legal gender to be registered (female or male) is generally determined by the biological sex characteristics of the newborn. If, however, at the time of birth, the child exhibits ambiguous sex characteristics (intersex), doctors may, in consultation with the child's parents, assign a legal gender to the child. Where, at a later stage, it is apparent that the selection is inconsistent with the child's physical development, it is possible in certain circumstances to amend the birth certificate.

    Before 1982, gender confirmation surgery was prohibited in Italy. Italian law adhered to the belief that sex is ‘immutable’ and that a person's body is ‘inviolable’. However, under the Sex Reassignment Act 1982, surgical treatments were finally

  • USA

  • from North and South America
  • Edited by Jens M. Scherpe
  • Book:
    The Legal Status of Transsexual and Transgender Persons
    Published by:
    Intersentia
    Published online:
    28 November 2017
    Print publication:
    22 December 2015, pp 585-612

  • Summary

    LEGAL FRAMEWORK AND STATISTICS

    OVERVIEW

    The legal status of individuals with regard to gender is a complex matter in the United States (US), made even more so by the divisions of legal power within the nation. The US Constitution enumerates the powers that it confers on the legislative and executive branches of the federal government, authorising them to regulate taxation, interstate commerce, and international travel. As such, the federal government issues passports and establishes a national registry with identity numbers for individuals in relation to taxes, employment, and receipt of federal benefits. However, the states also have broad powers to regulate the public health and welfare within their borders, provided that they do not conflict with federal law, the US Constitution, or their own state constitutions. These jurisdictions register births and provide identity cards used in daily life. Both the federal government and the states allocate responsibility for each identity document to different agencies, with separate rules for the documents and registries that they maintain. As a result, citizens and residents of the United States may have multiple legally registered identities that are independent of each other, such that changing one document often has no impact on the other.

    Persons wishing to correct their registered gender in much of the United States face numerous administrative barriers in doing so. This is largely due to the diversity of rules in the states, which are often inconsistent, even within individual jurisdictions. The most recent comprehensive study of transgender persons in the United States reported that only approximately one-fifth (21%) of persons who transitioned gender had been able to correct all of their identity documents, and two-fifths (41%) had not corrected their identity cards used in daily life. These administrative problems may explain why quality data is lacking to estimate the numbers of Americans who may have been diagnosed as transsexual or who have successfully corrected their registered gender. The US Census Bureau collects data on gender, but does not ask respondents whether their gender identity matches their gender registered at birth. Federal law protecting the privacy of health care information also effectively prevents substantial disclosure of statistics about the transgender population. As such, the full extent of the population most affected by gender registry laws remains largely unknown.

  • Spain

  • from Europe
  • Edited by Jens M. Scherpe
  • Book:
    The Legal Status of Transsexual and Transgender Persons
    Published by:
    Intersentia
    Published online:
    28 November 2017
    Print publication:
    22 December 2015, pp 261-280

  • Summary

    LEGAL FRAMEWORK AND BACKGROUND

    In 2007, Spain introduced a new statute-based system for permitting individuals to obtain legal recognition of their preferred name and gender. Act 3/2007 of 15 March, which regulates the amendment of one's gender marker in the Civil Registry, allows a person whose gender identity does not match his or her assigned legal gender to modify the gender marker in the Civil Registry and change his or her name, provided that certain requirements have been met. The Act was passed during a period of left-wing, liberal reforms in Spain's family law, including the legalisation of same-sex marriage and the establishment of a regime of unrestricted divorce.

    Prior to 2007, in the absence of statutory regulation, courts had already begun to permit individuals to obtain legal gender recognition. However, this recognition could only be granted by a court. According to the jurisprudence of the Spanish Supreme Court, whose leading case in this period dates back to 1987, ‘transgenderism’ was defined as a psychological pathology consisting in ‘an overwhelming feeling of belonging to the opposite sex, a rejection of one's own sex, and an obsessive desire to change the genital morphology’. The Supreme Court's decisions established a series of conditions which applicants for legal gender recognition were required to satisfy. Applicants were required to submit to hormone treatment and undergo gender confirmation surgeries (whether or not desired). These medical interventions were intended to suppress secondary sexual characteristics, remove primary sex characteristics and implant artificial sexual organs corresponding to those sex characteristics associated with the applicant's preferred gender. Although the Supreme Court allowed for the recognition of preferred gender (on the basis that the applicant suffered from a psychological disorder and had altered his or her physical body), the Court nevertheless maintained that such recognition was, in reality, ‘a legal fiction’. Therefore, it did not result in the individual obtaining recognition for all legal purposes. The extent of the ‘fiction’ would be determined on a case-by-case basis. In particular, marriage with a person of the same ‘chromosomal sex’ remained prohibited.

    Before Act 3/2007, the Supreme Court's case law had already been partly challenged by a number of lower court decisions. Lower courts did not always require full gender confirmation surgery, especially where the applicant for gender recognition was a female-to-male (FtM) transgender individual.

  • Turkey

  • from Europe
  • Edited by Jens M. Scherpe
  • Book:
    The Legal Status of Transsexual and Transgender Persons
    Published by:
    Intersentia
    Published online:
    28 November 2017
    Print publication:
    22 December 2015, pp 313-332

  • Summary

    DEVELOPMENT OF THE RELEVANT LEGAL RULES

    The right of transgender persons to effect a change of their gender marker in the civil status register after gender confirmation surgery was accepted in Turkey by law in 1988. With this new provision, major Turkish research hospitals started to offer medical treatment, including surgical intervention, for transgender individuals. Even though there is no official statistical data, witness statements of surgeons indicate that, on average, more than 300 operations are conducted in Turkey per year. Given that transgenderism is acknowledged as a medical condition (‘gender identity disorder’), public and legal perceptions of transgender persons are more lenient than in comparison to, for example, homosexuality. Same-sex marriages are forbidden; any type of cohabitation except marriage between men and women is not recognised by Turkish law. Even though public awareness of lesbian, gay, bisexual and transgender (LGBT) problems has risen throughout Turkey in recent decades, a strong tendency towards homophobia is still present and no change in the law has been discussed. In fact, this attitude is also reflected in the provisions regarding transgender persons, given that such persons are totally neglected as a group and a change in the civil status register is only allowed if an individual submits to gender confirmation surgery, as prescribed by law.

    The legal status of transgender persons in Turkey can be analysed in three phases. In the period before 1988, there was no special legal provision at all. However, the issue was debated in case law. The second phase was introduced by a change to Article 29 of the Turkish Civil Code (TCC) in 1988, allowing for the change of the civil status register after gender confirmation surgery. The so far final phase started with the introduction of a new Turkish Civil Code in 2002. Article 40 of the new code now stipulates the pre- and post-operative legal procedure to be followed in order to achieve a change in the gender marker in the civil status register.

    In the first phase, where no legal rule concerning transgender persons existed, the Turkish Court of Cassation was required to consider the application of a famous Turkish singer who had submitted to gender confirmation surgery abroad and wanted to amend the gender marker in the civil status register.

  • Varieties of Decision-Making: Reflections on Deciding Re Kevin

  • from Australia and New Zealand
    • By Richard Chisholm, ANU College of Law, Australia; formerly a Judge of the Family Court of Australia
  • Edited by Jens M. Scherpe
  • Book:
    The Legal Status of Transsexual and Transgender Persons
    Published by:
    Intersentia
    Published online:
    28 November 2017
    Print publication:
    22 December 2015, pp 443-456

  • Summary

    INTRODUCTION

    Re Kevin was an application for a declaration of the validity of a marriage between a woman (‘Jennifer’) and Kevin, who was born with female characteristics but whose affirmed sex was male. It was common ground that a marriage required a man and a woman – the question whether a same-sex relationship could be a ‘marriage’ did not arise in the case.

    The case was conducted, magnificently, by Rachael Wallbank, who also appeared on the appeal. The Attorney-General of Australia opposed the application, saying that it was not a valid marriage, since Kevin was a woman, not a man. According to the Attorney-General (represented by a distinguished QC, Henry Burmester, as well as junior counsel), the law had been settled in Corbett, a famous English decision of 1971. Corbett said that a person's sex was determined exclusively by certain physical features at the time of birth: gonads, chromosomes and genitals. If those features were congruent (as they were in Kevin's case) they would determine the person's sex, which was thus fixed at birth and could not be changed by any later development, whether the person's self-image, family life, social acceptance, or natural physical development, hormone treatment or surgery. Anything ‘psychological’ was irrelevant. If Corbett was to be followed, Kevin was a woman and the application for validity of the marriage would have to be dismissed.

    Wallbank argued that Corbett was wrong, and that determining whether a person was a man or a woman required attention to other facts as well, especially the person's experiences since birth. Consistently with that, the case she presented was rich in detail, with much evidence about Kevin and his experiences, expert medical evidence about the nature of his condition, and evidence about his acceptance as a man into the community. Consistently with the Corbett decision, the Attorney-General took the view that most or all of this material was legally irrelevant, but otherwise challenged virtually none of it. So after the preliminaries, the hearing consisted of two days’ legal argument, with a daunting pile of unchallenged evidence.

    I have already complimented Rachael Wallbank on her presentation of the case. I should also acknowledge two features of the Attorney-General's handling of the case. First, I understand that Kevin's case was supported by Commonwealth legal aid funds.

The Legal Status of Transsexual and Transgender Persons
  • Edited by Jens M. Scherpe
  • Published by:
    Intersentia
    Published online:
    28 November 2017
    Print publication:
    22 December 2015
  • The need to allow a change of legal sex/gender in certain cases is no longer disputed in most jurisdictions, and for European countries there is no question as to whether such a change should be allowed after the decision of the European Court of Human Rights in Goodwin v. United Kingdom (Application no. 28957/95). The question has therefore shifted to what the requirements for such a change of the legal sex/gender should be. Many jurisdictions have legislated or developed an administrative approach to changing sex/gender, but the requirements differ significantly from jurisdiction to jurisdiction, particularly with regard to age, nationality and marital status, as well as the medical and psychological requirements. The latter in some jurisdictions still include surgery and sterility as a precondition, thus potentially forcing the persons concerned to choose between the recognition of their sex/gender identity and their physical integrity. The book also examines questions that are thus far under-researched, namely what the full legal consequences of a change of legal sex/gender should be, for example with regard to existing legal relationships such as marriages and registered partnerships, but also concerning children and parentage. The Legal Status of Transsexual and Transgender Persons is the result of an international research project, including not only national reports from 14 European and non-European jurisdictions but also two chapters that look at legal sex/gender changes from a Christian perspective and one chapter from a medical-psychological perspective. The final comparative chapter compares and contrasts the different approaches and requirements and makes recommendations for best practice and law reform.

Page 65 of 98