Gender identity disorder and its medicolegal considerations
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《中华医药杂志》英文版
Gender identity disorder and its medicolegal considerations(pdf)
Department of Forensic Medicine & Toxicology, Govt. Medical College & Hospital, Chandigarh 160030,India
Correspondence to Dr. B. R. Sharma, # 1156-B, Sector 32-B, Chandigarh 160030, India
Email: drbrsharma@yahoo.com
[Abstract] The general belief among behavioral scientists and physicians is that gender identity disorder (GID) or transsexualism is an identifiable and incapacitating disease, which can be diagnosed and successfully treated by reassignment surgery in carefully selected patients. Although many advances have been made in the reassignment surgery techniques, phalloplasty still remains a major challenge; to date, no ideal technique has been developed. The new gender created by the reassignment surgery has, in turn, led to many legal complications for postoperative transsexuals because in many developed and the developing countries, transsexuals are not given a legal identity, thereby adding to their agonies and miseries. This article examines the historical perspective, genesis and management of gender identity disorder / transsexualism and draws attention to the medicolegal considerations.
[Key words] gender identity disorder; transsexualism; transvestism; eonism; gender dysphoria; psychopathia transsexualis;homosexuality.
INTRODUCTION
It has been well said that whether you are a male or a female, you owe it to the accident that the chromosome determining your sex got the upper hand at the most propitious moment. Just as the psychiatrists hold that the line between mental balance and mental imbalance is extremely thin, the geneticists hold that genetically the line between the sexes is exceedingly thin. Males have what have been called the vestiges of the important female reproductive organs and the females experience sexual climax in an organ, which is so analogous to the principal male genital, the penis, that it is called the ‘penis muliebris’ (penis of the woman). It is argued that males and females think differently as a result of social evolution and individualism. But then, no two individuals think alike. There isnt any distinct male way of thinking or a distinct female way of thinking. However, there are social patterns of feminine thought just as there are social patterns of masculine thought[1].
If a male happens to inherit more of certain genes from his mother and his female ancestors provided they are feminine appearing, he will look somewhat feminine regardless of the capacity of his gonads or the dimensions of his other genital organs. The same is true with regard to females. Thus it comes about that there are men who are regarded as feminineappearing and females who are regarded as masculinelooking. This appearance depends on genetic heritage, while sex depends on the chromosomes for its distinction. It is remarkable that, when dressed alike, the sex of children is extremely difficult to distinguish. It is only at puberty when the genitals develop and other secondary sex characteristics begin to appear that we can distinguish, generally, the male and female features. The reason is that the genes, which have been more or less dormant, stimulated by the sex hormones (Augmented by other hormones) become active. However, there have been instances when males have lived long and useful lives under the guise of a female and vice versa. The famous Chevalier dEon lived such a dual role and the public learned his true sexual identity only when he had been examined after his death by a reputed surgeon.
A woman physician practiced medicine for nearly forty years in the state of Arkansas and was believed by all who knew her to be the man she pretended to beuntil her death, when colleagues discovered the truth.
Gender identity disorder [2], earlier referred to as transsexualism [3], is a condition characterized by the feeling that one was born into a body of the wrong sex and is marked by the desire, from an early age, to be a person of the opposite sex. It has also been described as an unwavering feeling that one belongs to the other sex and that one is the victim of an error of nature. It usually results in an intense and constant desire to change ones bodily morphology and identity. The desire to change sex is obsessive and may lead to selfmutilation. The patient does not find any peace until his or her body undergoes radical transformation. The condition has also been described as a passionate, lifelong conviction that ones psychological gender—that indefinable feeling of maleness or femaleness—is opposite to ones anatomic sex.
Here and there, socalled cases of surgical sex transmutation have been reported. However, in order to understand the many faceted questions involving sex transmutation, we need to understand sex in its genital meaning as well as in its physical and psychological manifestation as a passion. Furthermore, we also need to look into social attitudes. Reviews of the literature on transsexualism must also take transvestism into account for many reports especially the early ones, do not distinguish between the two conditions and furthermore there seem some common elements between the two.
DETAILED REVIEW
Historical Perspective
The desire to dress in the clothes of the opposite sex is a phenomenon that has existed in every age and in every culture. Diaries of the 17th century speak of two instances of crude selfinflicted operations as giving great and subjective relief [4]. Still earlier, Hippocrates identified “the illness of Scythians” in men who preferred to live as women [5]. The first description of cross dressing, in the medical literature seems to have been given by the German J Friedreich [6].Westphal introduced the term ‘Die Kontrare sexualempfindung’ and Krafft Ebing called the phenomenon ‘Metamorphosis Sexualis paranoica’ apparently extending the concept to include a psychotic component. Havelock used the term ‘Sexoesthetic Inversion’ but later changed to ‘eonism’ a name based on the renowned Chevalier dEon. Hamburger，et al. suggested ‘genuine transvestism’ and ‘psychic hermaphroditism’. In 1910, Hirschfeld coined the word ‘transvestism’ and since then this has been the name most commonly used. However, as Hirschfeld pointed out, the name is only concerned with how the condition is manifested outwardly, and not with its inner psychologic core [7].
Since many transvestites not only want to dress in the clothes of the opposite sex, they also feel as if they belonged to the opposite sex, that they have been given the wrong body, especially the wrong external sex characteristics. Cauldwell [8] suggested the term ‘psychopathia transsexualis’ for persons who felt this way. Later, Benjamin [9] coined the word ‘transsexualism’, a term that has been used more and more in recent years. Abraham [10]described the first sex change operation on a transsexual patient, though this was not the first use of surgery to relieve the agonies of persons with irreversible gender dysphorias.
Only recently, have transvestism and transsexualism been given systematic studies. But different authors use different criteria for transvestism and transsexualism making it difficult to draw any general conclusion. Roberto [11], reviewing an extensive literature, concluded that “the clinical definition of adult transsexualism is based on a composite set of characteristics…the belief that one is a member of the opposite sex…dressing and behaving in the opposite gender role…perceiving oneself as a heterosexual although sexual partners are anatomically identical…repugnance for ones own genitals and the wish to transform them…and a persistent desire for conversion surgery”. The difference between the physical reality of the body and the gender of the mind in these patients often leads to a lack of psychosocial wholeness and a failure to integrate socially [12].
Money and Gaskins [13], defined the condition as a disturbance of gender identity in which the person manifests, with constant and persistent conviction, the desire to live as a member of the opposite sex and progressively takes steps to live in the opposite sex role, full time. Such a person is not to be confused with the transvestite, homosexual, effeminate male, or psychopathy. Most transsexual people experience persistent disharmony with their gender roles, and the pursuit of role reversal is a defining characteristic.
The broad name given to such disorders is gender identity disorders, as defined in the Diagnostic and Statistical Manual of Mental Disorders[2]. The DSM-IV defines gender identity disorders as a heterogeneous group of disorders whose common feature is a strong and persistent preference for the status and role of the opposite sex. These disorders may be manifested verbally, in the assertion that one properly belongs to the opposite sex, or nonverbally, in crosssex behavior. The affective component of the gender identity disorder is known as gender dysphoria. It is characterized by discontentment with ones biologic sex, the desire to possess the body of the opposite sex, and a wish to be regarded as the member of the opposite sex. Extreme forms of this behavior are grouped under transsexualism.
Transsexualism became publicized with the sex change operation of George Jorgensen to Christine Jorgensen in 1952, in one of the first reassignment surgeries of modern times, performed by Paul FoghAnderson, a plastic surgeon in Copenhagen [14]. Christine Jorgensen then returned to the United States and, for nearly three decades, crusaded for the cause of transsexuals. Harry Benjamins revolutionary book in 1966, and the introduction of sexreassignment surgery at the John Hopkins Hospital in the same year, legitimized this treatment [13].
Incidence
Maletofemale transsexualism is reported more often than femaletomale transsexualism [15]. The reported gender ratios vary from 8∶1 to 2∶1, including a crosscultural study between Sweden and Australia [16]. Parents usually report that crossgender behavior has been apparent before the age of 3 years. In adults, the prevalence in a study conducted in the United Kingdom, Sweden, and Australia was reported to be 1 in 50 000 [17]. In children, the ratio is five boys referred for each girl referred, perhaps because parents may be more concerned about “sissies” than about “tomboyish” behavior, or because of more ridicule and stigmatization from peers. However, in childhood, transsexualism is rare in boys, and the majority of such boys monitored into early adulthood have so far shown homosexual rather than transsexual identities [18]. In adults, the preponderance of maletofemale transsexualism may be due to the greater publicity given to malefemale transsexuals and to the greater success of vaginoplasty, as compared with phalloplasty. Usually, adult males seek treatment at the age of 30, even though the prodromal features of the disorder were present before puberty.
Cultural differences in attitude to sex anomaly may be an important reason of male transvestites outnumbering females. It is a common experience that world looks more kindly on a woman who dresses slightly mannishly than it does on a man who dresses like a woman.
Transvestism vs. Transsexualism
Most authors seem to agree on the definition of transvestism, wherein the chief characteristic is the desire and need to dress in the clothes of the opposite sex [19], however, some have pointed out that the term should be reserved for a primary desire or need of this kind, and not a secondary characteristic of, for example, homosexuality or fetishism when it should be called “symptomatic transvestism” [20]. According to Hampson [21], transvestism is only present when the subject dons the clothes of the other sex to obtain psychosexual comfort and satisfaction. Transsexuals, on the other hand, not only want to dress like the opposite sex, they abhor the signs of their anatomic sex, especially their genitals and they want to have their bodies altered to resemble that of the other sex. They are often convinced that nature has made a mistake in their case, that they really belong to the other sex and that their bodies have developed along the wrong lines. The abhorrence for their own bodies is a consistent feature in transsexualism. However, Benjamin [22] reported that transvestism and transsexualism probably overlap and it was wrong to consider them basically different phenomena.
Transvestism and Transsexualism vs. Fetishism and Homosexuality
Transvestism and transsexualism are sometimes confused with homosexuality. Some say that transvestism was the end product of passive male or active female homosexuality and from the biologic point of view, bisexuality, certain forms of homosexuality and transvestism were different stages along a particular line of sexual deviation [19]. It is also argued that different forms of sexual deviation sometimes occur together and that sometimes one replaces the other. Others, however, believe that transvestism and transsexualism are clearly distinguishable from homosexuality as:
· The crucial characteristic of the homosexual is the desire for a physical sex relation with a person of his own sex.
· Homosexuals do not want to change their sex and identity—a fundamental anomaly in transsexualism.
· A conspicuously feminine appearance and a life long preference for feminine games and activities are far more common in transsexualism than in homosexuality.
· The phantasies of pregnancy and passionate longing for a maternal role together with the desire for castration in an attempt to achieve anatomical resemblance to a womanthe characteristic of transsexualism are not found in the homosexuals.
Transvestism despite being called a special form of fetishism in which dress as a whole acted as fetish, can be distinguished from it on the basis that the fetish was necessary for attaining sexual satisfaction in fetishism, whereas wearing clothes of the opposite sex has nothing to do with exciting or satisfying sexual desire in transsexualism and tranvestism. Pennington [23] reported that some transvestites get sexual satisfaction by masturbating in front of a mirror (mirror complex). It has also been reported that in the early stages of transvestism, changing to the clothes of the opposite sex might be associated with pleasurable sexual feelings, but these feelings fade with the passage of time, this being in contrast to transsexualism.
To sum up, it should be possible to make a clear distinction between homosexuality and fetishism, on one hand, and if not transvestism, at least transsexualism, on the other.
Deviant Sexual Behavior and Gender Role
Attempts to distinguish between different types of deviant sexual behavior have led to the term “gender role” which means all those aspects of a persons behavior and attitudes that serve to disclose the person as having the status of a boy or man and girl or woman[21], it includes, but is not restricted to sexuality in the sense of eroticism. Gender role, also called psychologic sex, is one of the several components of the sex as for example: chromosomal sex, gonadal sex, internal anatomic sex, external anatomic sex, hormonal sex, sex of assignment and rearing and gender role or psychosexual identification.
It has been argued that an intersex state was present whenever chromosomal sex, gonadal sex and/or apparent sex (external genitals and body build) did not agree in full with psychological sex, and thus widened the concept of intersex to include deviations in psychosexual identification. When one considers psychologic sex to be a variable of sex, one does not need nonspecific, moralizing terms like perversion for classifying deviant sexual behavior: when a subject behaves like someone of the opposite sex and feels like someone of the opposite sex, it is a case of inversion in gender role. Thus Hampson[21] classified deviant sexual behavior according to whether or not it was associated with gender role inversion, fetishism, exhibitionism, and impotence being associated with a normal gender role, and transvestism and transsexualism being a form of gender role inversion.
Strolle[24], formulated the concept of “core gender identity” for the feeling of “I am a male” or “I am a female” as distinguished from gender role for a masculine or feminine way of behaving that seems to be a better term when describing the transsexuals feeling of the sex to which they belong.
Stages in Development of Transvestism and Transsexualism The literature contains exhaustive descriptions of the mental characteristics associated with transvestism and transsexualism [22, 25]. Most authors agree that transvestism usually makes its appearance early in life whereas the feeling of belonging to other sex usually becomes more intense around the time of adolescence, and from then on the deviation seems to split in two. Either the subjects remain content to dress in the clothes of the opposite sex, consistently or sporadically and are not particularly troubled by the external signs of sex on their bodies or they grow more and more repelled by their external sex characteristics. They become exceedingly convinced that nature has blundered and that they have the soul of one sex and the body of the other. They persist more and more in their demands for medical measures to change their sex. Some do what they can do to change their appearance themselves: the men pluck their eyebrows, remove their facial hair, shave their arms and legs and trim their pubic hair to make it look feminine [25].
In few cases, the anomaly comes and goes, the desire to change clothes or to be identified with the opposite sex waxing and waning, but in most cases the desire to pass over into the opposite sex grows steadily worse and worse and the victims often grow more and more suspicious of their fellowmen whom they feel make no effort to understand or help them. The end result is often a conviction that one is being persecuted. Conversely, many transsexuals do not ask for help until they break down under the pressure, material or mental, to which they are subjected. However, they want one kind of treatment only a change of sex; they never want to be cured of their aberration [23].
As time goes on, transsexualism becomes associated with other mental peculiarities. The subjects feel that their breasts are swelling, genitals are changing to those of opposite sex, some are convinced that they menstruate or regard their ejaculations as leucorrhoea. Some men have phantasies of being pregnant. Persons who feel that their anatomy is changing or who use drastic measures to change their appearance are invariably at the brink of disintegration in personality and attempts to make them change their ideas of belonging to the opposite sex, by psychotherapy or other measures, sometimes result in real psychosis. Sometimes the desire to change sex reaches the proportions of an obsession and in case they fail to get medical support and assurance for sex change surgically, their persecution complex may grow so intense that they may mutilate themselves to get the appearance they want, or become depressed or suicidal [26].
Genesis of Transsexualism
The following explanations are often forwarded:
(A)Psychologic explanations:Many stress the importance of an unhappy childhood in preventing normal psychosexual development. The terms, psychologic conditioning and faulty identification are often used in this regard. Some of the main explanations based on this reasoning are:
· Parental rejection due to the parents having wanted a child of the opposite sex may cause the child become prematurely occupied with the idea of masculinity and femininity, unsure of itself and regarding its genitals as the reason for its rejection.
· Dressing the child in the clothes of the opposite sex, at least off and on till the age of 3 or 4, may affect the boys conception of, and identification with, his own sex.
· Reversal in parental role, as for example, the male transvestite has a domineering, aggressive, overprotective mother and an inadequate father figure, either because of a weak, colorless father, or because of a family lacking a father. This may cause a compensatory, overmasculine attitude to militate against difficulty in identification and a feeling of inadequate masculinity. An enhanced identification with the parent of the opposite sex, or an inadequate identification with the parent of the same sex has also been reported to be responsible for the anomaly[27].
· A change in body image, for instance, through endocrine disorder, might tend to change psychosexual behavior, partly through the subjects own reaction to the change in their anatomy and partly through the reactions of others.
(B)Organic Explanations Include:
· Genetic factors: Barr and Bertrams discovery of sex chromatin led to many studies of chromosomal sex in transsexuals. Dowling [28], reported male transsexuals with positive sex chromatin. Physical abnormalities like scanty beard, high pitched voice, testicular hypoplasia and feminine build in the males and the virilism and poorly developed breasts in the females point to a constitutional origin of transsexualism.
· Hormones: Literature reports different cases of transsexualism and estrogen producing tumor of the adrenal glands, in which, the transsexualism diminished after the tumor was removed surgically. Cases of androgen producing testicular tumor combined with transsexualism have also been reported. Green [29] described a case of transvestism developing suddenly in connection with the development of liver cirrhosis, in which the anomaly disappeared after testosterone treatment, concluding that the anomaly might have been caused by the inability of the liver to conjugate circulating estrogens with the result that they reached an abnormally high concentration. Lief,et al.[30] described a case of cyclic variation between a feeling of masculinity and femininity with variations in the content of 17ketosteroids in the urine.
· Cerebral lesion: Cases of cerebral lesion associated with transsexualism and transvestism were described as far back as 1869. Some studies have pointed out that the anomaly might be derived from anomalies in the cerebral organization, while others suggested that a cerebral disorder of biochemical nature might be at fault. Cases of epilepsy among persons with this psychosexual anomaly provide more concrete evidence of the possibility of a cerebral lesion [23].
(C)Multifactorial theories:Some authors especially those with firsthand knowledge of a large number of cases, are inclined to believe that the anomaly is due to a combination of constitutional, psychological and hormonal factors. Many theories have been put forward to explain the syndrome. They include genetic or hormonal influences, psychosocial problems, social learning theories, and psychoanalytical theories. But the very existence of so many theories exemplifies that the genesis of the syndrome is not properly understood. The cause of transsexualism is still a mystery. In fact, nothing of its cause is known for certain. No physical laboratory test shows transsexuals to be consistently different hormonally, chromosomally, or morphologically; no mental tests show any consistent psychodynamic pattern. However, no true transsexual has yet been persuaded, bullied, drugged, analyzed, shamed, ridiculed, or electrically shocked into an acceptance of his or her physique. It is an immutable state. Even though for years in the future many may argue about the causes and nature of transsexualism, no one can deny that this is an identifiable, severe, and incapacitating disease, a pathologic condition, which is undesirable both for the patients and for the society [25].
Management
The management of transsexualism is one of the most demanding challenges in clinical sexology, requiring the collaboration of behavioral, endocrinologic, and surgical specialists, working as a team. The work of the behavioral scientist, whether a psychologist or a psychiatrist, is the most time consuming. It is highly unlikely that a transsexual person will seek help to reduce or eliminate his or her transsexual feelings. The behavioral scientist is the main person to identify patients with gender identity disorders and, along with the physician recommending hormone therapy and the surgeon who accepts the patient for gender reassignment surgery, shares equal responsibility for the selection of the patient and the final outcome of the assigned treatment [31].
The usual protocol for management of a transsexual condition is hormone therapy, followed by or simultaneously with facial hair electrolysis and reassignment surgery. Many studies have shown that with careful selection of patients and special care, many transsexuals have benefited from such reassignment [32].
The Henry Benjamin International Gender Dysphoria Association (HBIGDA), formed in 1978, has established the essential prerequisites for this protocol. These standards of care, which were first drafted in 1979 and were revised from time to time, have been accepted worldwide. They contain the criteria for diagnosis, hormonal and surgical sex reassignment, and the postoperative services to be provided. For a diagnosis of gender dysphoria, the following criteria must be fulfilled [33]:
· Two social scientists, one of whom must be a behavioral psychiatrist with an M.D. or the equivalent and the other may be a psychologist with a Ph.D. or the equivalent, must participate in the diagnosis. Their recommendations must be in writing.
· One of them must have known the patient in a diagnostic or therapeutic relationship for at least 6 months.
· It must be established that the patient has had uninterrupted and unchangeable feelings of being in the wrong body for more than 2 years.
· The patient should have had a successful crossliving test over a 1year period, which includes legal, social, and sexual success.
· Before any hormonal/surgical gender reassignment is contemplated, appropriate monitoring of the medical conditions, as well as the effects of the hormones on the various systems, should be accomplished with appropriate documentation. An endocrinologist, preferably a member of the same gender dysphoria team, should be entrusted with this task.
· When these diagnostic prerequisites have been wholly and completely met, the rearrangement of the body towards its new sexual appearance can be performed on those subjects whose true or, most appropriate, gender has been determined to be different from their present sexual appearance.
The wish of a transsexual person to reenter the society as a person with the physical and mental gender of choice without being “spotted” or without anyones “knowing” fulfills almost all of the preoperative objectives of transsexuals and should be the goal of surgical treatment. The aim of the treatment should also be to alleviate the depression that can result from the subjects feeling of inadequacy in relation to his or her physical and psychiatric state, which can lead to suicide or selfmutilation [34].
It is the surgeons duty to establish beyond a reasonable doubt that the gender dysphoria is genuine and that surgical reassignment will be beneficial. The patients human immunodeficiency virus status should be tested preoperatively, but a seropositive patient should not be discriminated against solely on that basis, because his or her expectation of life and particularly the quality of it cannot be truly assessed. However, in the case of a patient with AIDS, surgical intervention may not be done.
While reviewing the followup literature of sexreassignment surgery, Green and Fleming[35] concluded that preoperative factors indicating a favorable outcome include:(1) a reasonable degree of psychological stability, with no history of psychosis; (2) successful adaptation in the desired role for at least 1 year, with convincing physical appearance and behavior; (3) sufficient understanding of the limitations and consequences of the surgery; and (4) preoperative psychotherapy in the context of a gender identity program.
Medicolegal Considerations One of the first and most important issues confronting a transsexual patient is how far a new sex can be rectified in birth certificates and other documents of personal identity. In some countries like Sweden, West Germany, Finland, Czechoslovakia, Greece, Italy, Holland, Switzerland, Spain, the United Kingdom, and the United States, statutory provisions have been made; in others, it has been left rather vague. The courts decide each case on an ad hoc basis, depending on its merits [36, 37].
As early as 1955, in one case in Switzerland, it was held that “after sexreassignment surgery, the changed sex should be accepted. In granting him the civic status of women, we are satisfying the most profound desire of his being, while consolidating his psychic and moral equilibrium”. The first country to legislate was Sweden in 1972, followed by Italy, Spain, and Great Britain in 1982 and The Netherlands in 1984[37]. However, many countries still recognize only the biologic sex of a transsexual. According to courts, “although the transsexual no longer has the important feature of his/her original sex, he/she has not acquired the features of the opposite sex.” Courts in these cases do not take into consideration the one important factor for a transsexual: his or her psychosocial wellbeing.
Lord Justice Ormrod[38], summarized the courts inability to apply the medical professions approach to transsexualism thus: “The law depends upon precise definitions and is obliged to classify its material into exclusive categories. It is a binary system designed to produce conclusions of the yes or no type. Biologic phenomenon, however, cannot be reduced to exclusive categories so that medicine often cannot give yes or no answers… This fundamental conflict lies at the root of all relations between medicine and law”[39]. He developed the Ormrod test to determine the sexual identity of a person, based on three biologic factors: the chromosomal, the gonadal (the presence of ovaries/testes), and the genital (internal sex organs at the time of birth of the individual concerned). Based on this test, the court found in Corbett vs. Corbett[40] that the respondent, a postoperative female transsexual, was a male. Because marriage between members of same sex is not legally possible, the court in that particular case held the marriage between the respondent and the petitioner, both biologic males, to be null and void. The court in this case rejected a fourth factor, psychological basis, which was accepted by all the medical witnesses.
Cases relating to such issues as divorce, employment discrimination, medical benefits, and custody have been brought to the courts in many western countries. In most of these cases, the basic question to be decided has been the sexual identity of the postoperative transsexual: whether to legalize his or her new sex. Many courts have also decided on the grounds of nonconsummation of marriage to nullify the marriages of the postoperative transsexual. Some of those cases have gone further to the European Commission of Human Rights, viz., Van Oosterwijk vs. Belgium[41] and Rees vs. United Kingdom [42].
In the case of Van Oosterwijk vs. Belgium[41], the Commission found that the applicant had not exhausted all the domestic remedies available to him and dismissed the case. However, going into the merits of the case, the Commission found that by failing to amend the original birth records, the respondent state was violating Article 8 of the constitution, the right of respect of private and family life, and Article 12, the right to marry.
According to the Commission, “It would appear scarcely compatible with the obligation to respect private life to force a person who, on the recommendation of his doctor and by undergoing a lawful treatment, has taken on the appearance, and, to a large extent, the characteristics of the sex opposite to that which appears on his birth certificate, to carry identity documents which are manifestly incompatible with his appearance.” However, in the case of Rees vs. United Kingdom[42], the European Court did not touch on the main issue: the determination of the sexual identity of the postoperative transsexual right at the outset. This complicated the case, because the Court was forced to consider Mr. Rees as a biologic female, rather than a postoperative transsexual male, throughout the case. But the view of the European Court did force Germany, and much later France, to amend their laws in respect to the new gender of the postoperative transsexual. France has yet to recognize that the sex change did occur in a postoperative transsexual patient.
Many researchers have noted that male transsexuals have a weak sexual drive and the advanced cases were often characterized by “anorgasmie”. As to the sex object choice, Pauly[26] reported that 39% had overt sexual relationship with other men. Another study [20] found 12% transsexuals homosexually active. These studies reported that nearly all the transsexual women were homosexually inclined. However, those having homosexual relations do not regard these relations as homosexual because they identify themselves so strongly with the opposite sex, thus giving rise to another sociolegal issue.
Furthermore, the sex change operations lead to many complications in such issues as admission to educational institutions, employment, admission to hospitals or nursing homes, marriage, and divorce. Again, the question of recognition of the new gender of the postoperative transsexual patient has to be decided. In these and many other situations, a broadminded and sympathetic approach by the judiciary and the legislative bodies may help to reduce the agony and miseries of a transsexual who has acquired the physical traits of his or her psychological gender by undergoing a major, expensive, and lawful treatment recommended by a highly specialized, competent, and skillful team of doctors.
CONCLUSION
The World Health Organization defines health as “a state of complete physical, mental and social wellbeing, and not merely an absence of disease or infirmity.” This definition therefore projects three dimensions of healthphysical, mental, and socialall closely related. The enjoyment of the highest attainable standard of health has been declared a fundamental right of every human being, irrespective of race, religion, political belief, or economic and social conditions. In view of the above, legal recognition of the surgically changed gender will amount to discharging the obligation on the part of the state to provide a healthy life to its citizens. Recognition and acceptance by the society of his or her new gender, remaining the other important ingredient of the treatment of a transsexual person. However, with wider acceptance of transsexuals by society, this outlook has changed for the better, with many states amending their laws in accordance with the advances in medical sciences but a lot more remains to be done.
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28. Dowling RH, Knox SJ. Transvestism and fertility in a chromosomal mosaic. J Postgrad Med, 1963, 39: 665.
29. Green R, Stroller RJ,McAndrew C. Attitudes towards sex transformation procedures. Arch Gen Psychiat, 1966, 15: 178.
30. Lief HJ, Dingman JF，Bishop MP. Psychoendocrinologic studies in a male with cyclic changes in sexuality. Psychosom Med,1962, 24: 357.
31. Harish D, Sharma BR. Medical Advances in Transsexualism and the Legal Implications. American Journal of Forensic Medicine and Pathology,2003, 24 (1): 100-105.
32. Philip S, Michael JT，Russel R. Sex Reassignment surgery. A study of 141 Dutch Transsexuals. Br J Pschiatry,1993, 162: 681-685.
33. Laub DR. The role of surgery in the treatment of transsexualism (invited comment) Ann Plast Surg, 1984, 13: 476-481.
34. Lothestein LM. Sex reassignment surgery:historical, bioethical and theoretical issues. Am J Psychiatry, 1992, 139(4): 417-425.
35. Green R，Fleming D.Transsexual surgery follow up: Status in the 1990s. Annual Review of Sex Research, 1990,1: 163-174.
36. Jeroid T. Sexual Identity of postoperative transsexuals. Am J Law Med, 1990, 13(1): 53-69.
37. Gromb S, Chanseau B，Lazarini H J. Judicial problems related to transsexualism in France. Med Sci Law,1997,37(1): 27-31.
38. Ormrod J. The medicolegal aspects of Sex Determination. Medicolegal J, 1972, 40: 78.
39. Kusum V. The legal implications of a sex change operation. THE TIMES OF INDIA,1993,5.
40. Corbett V Corbett (Orse. Ashley), (1971) P. 83, quoted by Jeroid T, 1990, no. 36.
41. Eur. C H.R. 557 (1989) Van Oosterwijk vs. Belgium.
42. Eur C H.R. 429 (1985) Rees vs UK.
(Editor Jaque)(B. R. Sharma)
Department of Forensic Medicine & Toxicology, Govt. Medical College & Hospital, Chandigarh 160030,India
Correspondence to Dr. B. R. Sharma, # 1156-B, Sector 32-B, Chandigarh 160030, India
Email: drbrsharma@yahoo.com
[Abstract] The general belief among behavioral scientists and physicians is that gender identity disorder (GID) or transsexualism is an identifiable and incapacitating disease, which can be diagnosed and successfully treated by reassignment surgery in carefully selected patients. Although many advances have been made in the reassignment surgery techniques, phalloplasty still remains a major challenge; to date, no ideal technique has been developed. The new gender created by the reassignment surgery has, in turn, led to many legal complications for postoperative transsexuals because in many developed and the developing countries, transsexuals are not given a legal identity, thereby adding to their agonies and miseries. This article examines the historical perspective, genesis and management of gender identity disorder / transsexualism and draws attention to the medicolegal considerations.
[Key words] gender identity disorder; transsexualism; transvestism; eonism; gender dysphoria; psychopathia transsexualis;homosexuality.
INTRODUCTION
It has been well said that whether you are a male or a female, you owe it to the accident that the chromosome determining your sex got the upper hand at the most propitious moment. Just as the psychiatrists hold that the line between mental balance and mental imbalance is extremely thin, the geneticists hold that genetically the line between the sexes is exceedingly thin. Males have what have been called the vestiges of the important female reproductive organs and the females experience sexual climax in an organ, which is so analogous to the principal male genital, the penis, that it is called the ‘penis muliebris’ (penis of the woman). It is argued that males and females think differently as a result of social evolution and individualism. But then, no two individuals think alike. There isnt any distinct male way of thinking or a distinct female way of thinking. However, there are social patterns of feminine thought just as there are social patterns of masculine thought[1].
If a male happens to inherit more of certain genes from his mother and his female ancestors provided they are feminine appearing, he will look somewhat feminine regardless of the capacity of his gonads or the dimensions of his other genital organs. The same is true with regard to females. Thus it comes about that there are men who are regarded as feminineappearing and females who are regarded as masculinelooking. This appearance depends on genetic heritage, while sex depends on the chromosomes for its distinction. It is remarkable that, when dressed alike, the sex of children is extremely difficult to distinguish. It is only at puberty when the genitals develop and other secondary sex characteristics begin to appear that we can distinguish, generally, the male and female features. The reason is that the genes, which have been more or less dormant, stimulated by the sex hormones (Augmented by other hormones) become active. However, there have been instances when males have lived long and useful lives under the guise of a female and vice versa. The famous Chevalier dEon lived such a dual role and the public learned his true sexual identity only when he had been examined after his death by a reputed surgeon.
A woman physician practiced medicine for nearly forty years in the state of Arkansas and was believed by all who knew her to be the man she pretended to beuntil her death, when colleagues discovered the truth.
Gender identity disorder [2], earlier referred to as transsexualism [3], is a condition characterized by the feeling that one was born into a body of the wrong sex and is marked by the desire, from an early age, to be a person of the opposite sex. It has also been described as an unwavering feeling that one belongs to the other sex and that one is the victim of an error of nature. It usually results in an intense and constant desire to change ones bodily morphology and identity. The desire to change sex is obsessive and may lead to selfmutilation. The patient does not find any peace until his or her body undergoes radical transformation. The condition has also been described as a passionate, lifelong conviction that ones psychological gender—that indefinable feeling of maleness or femaleness—is opposite to ones anatomic sex.
Here and there, socalled cases of surgical sex transmutation have been reported. However, in order to understand the many faceted questions involving sex transmutation, we need to understand sex in its genital meaning as well as in its physical and psychological manifestation as a passion. Furthermore, we also need to look into social attitudes. Reviews of the literature on transsexualism must also take transvestism into account for many reports especially the early ones, do not distinguish between the two conditions and furthermore there seem some common elements between the two.
DETAILED REVIEW
Historical Perspective
The desire to dress in the clothes of the opposite sex is a phenomenon that has existed in every age and in every culture. Diaries of the 17th century speak of two instances of crude selfinflicted operations as giving great and subjective relief [4]. Still earlier, Hippocrates identified “the illness of Scythians” in men who preferred to live as women [5]. The first description of cross dressing, in the medical literature seems to have been given by the German J Friedreich [6].Westphal introduced the term ‘Die Kontrare sexualempfindung’ and Krafft Ebing called the phenomenon ‘Metamorphosis Sexualis paranoica’ apparently extending the concept to include a psychotic component. Havelock used the term ‘Sexoesthetic Inversion’ but later changed to ‘eonism’ a name based on the renowned Chevalier dEon. Hamburger，et al. suggested ‘genuine transvestism’ and ‘psychic hermaphroditism’. In 1910, Hirschfeld coined the word ‘transvestism’ and since then this has been the name most commonly used. However, as Hirschfeld pointed out, the name is only concerned with how the condition is manifested outwardly, and not with its inner psychologic core [7].
Since many transvestites not only want to dress in the clothes of the opposite sex, they also feel as if they belonged to the opposite sex, that they have been given the wrong body, especially the wrong external sex characteristics. Cauldwell [8] suggested the term ‘psychopathia transsexualis’ for persons who felt this way. Later, Benjamin [9] coined the word ‘transsexualism’, a term that has been used more and more in recent years. Abraham [10]described the first sex change operation on a transsexual patient, though this was not the first use of surgery to relieve the agonies of persons with irreversible gender dysphorias.
Only recently, have transvestism and transsexualism been given systematic studies. But different authors use different criteria for transvestism and transsexualism making it difficult to draw any general conclusion. Roberto [11], reviewing an extensive literature, concluded that “the clinical definition of adult transsexualism is based on a composite set of characteristics…the belief that one is a member of the opposite sex…dressing and behaving in the opposite gender role…perceiving oneself as a heterosexual although sexual partners are anatomically identical…repugnance for ones own genitals and the wish to transform them…and a persistent desire for conversion surgery”. The difference between the physical reality of the body and the gender of the mind in these patients often leads to a lack of psychosocial wholeness and a failure to integrate socially [12].
Money and Gaskins [13], defined the condition as a disturbance of gender identity in which the person manifests, with constant and persistent conviction, the desire to live as a member of the opposite sex and progressively takes steps to live in the opposite sex role, full time. Such a person is not to be confused with the transvestite, homosexual, effeminate male, or psychopathy. Most transsexual people experience persistent disharmony with their gender roles, and the pursuit of role reversal is a defining characteristic.
The broad name given to such disorders is gender identity disorders, as defined in the Diagnostic and Statistical Manual of Mental Disorders[2]. The DSM-IV defines gender identity disorders as a heterogeneous group of disorders whose common feature is a strong and persistent preference for the status and role of the opposite sex. These disorders may be manifested verbally, in the assertion that one properly belongs to the opposite sex, or nonverbally, in crosssex behavior. The affective component of the gender identity disorder is known as gender dysphoria. It is characterized by discontentment with ones biologic sex, the desire to possess the body of the opposite sex, and a wish to be regarded as the member of the opposite sex. Extreme forms of this behavior are grouped under transsexualism.
Transsexualism became publicized with the sex change operation of George Jorgensen to Christine Jorgensen in 1952, in one of the first reassignment surgeries of modern times, performed by Paul FoghAnderson, a plastic surgeon in Copenhagen [14]. Christine Jorgensen then returned to the United States and, for nearly three decades, crusaded for the cause of transsexuals. Harry Benjamins revolutionary book in 1966, and the introduction of sexreassignment surgery at the John Hopkins Hospital in the same year, legitimized this treatment [13].
Incidence
Maletofemale transsexualism is reported more often than femaletomale transsexualism [15]. The reported gender ratios vary from 8∶1 to 2∶1, including a crosscultural study between Sweden and Australia [16]. Parents usually report that crossgender behavior has been apparent before the age of 3 years. In adults, the prevalence in a study conducted in the United Kingdom, Sweden, and Australia was reported to be 1 in 50 000 [17]. In children, the ratio is five boys referred for each girl referred, perhaps because parents may be more concerned about “sissies” than about “tomboyish” behavior, or because of more ridicule and stigmatization from peers. However, in childhood, transsexualism is rare in boys, and the majority of such boys monitored into early adulthood have so far shown homosexual rather than transsexual identities [18]. In adults, the preponderance of maletofemale transsexualism may be due to the greater publicity given to malefemale transsexuals and to the greater success of vaginoplasty, as compared with phalloplasty. Usually, adult males seek treatment at the age of 30, even though the prodromal features of the disorder were present before puberty.
Cultural differences in attitude to sex anomaly may be an important reason of male transvestites outnumbering females. It is a common experience that world looks more kindly on a woman who dresses slightly mannishly than it does on a man who dresses like a woman.
Transvestism vs. Transsexualism
Most authors seem to agree on the definition of transvestism, wherein the chief characteristic is the desire and need to dress in the clothes of the opposite sex [19], however, some have pointed out that the term should be reserved for a primary desire or need of this kind, and not a secondary characteristic of, for example, homosexuality or fetishism when it should be called “symptomatic transvestism” [20]. According to Hampson [21], transvestism is only present when the subject dons the clothes of the other sex to obtain psychosexual comfort and satisfaction. Transsexuals, on the other hand, not only want to dress like the opposite sex, they abhor the signs of their anatomic sex, especially their genitals and they want to have their bodies altered to resemble that of the other sex. They are often convinced that nature has made a mistake in their case, that they really belong to the other sex and that their bodies have developed along the wrong lines. The abhorrence for their own bodies is a consistent feature in transsexualism. However, Benjamin [22] reported that transvestism and transsexualism probably overlap and it was wrong to consider them basically different phenomena.
Transvestism and Transsexualism vs. Fetishism and Homosexuality
Transvestism and transsexualism are sometimes confused with homosexuality. Some say that transvestism was the end product of passive male or active female homosexuality and from the biologic point of view, bisexuality, certain forms of homosexuality and transvestism were different stages along a particular line of sexual deviation [19]. It is also argued that different forms of sexual deviation sometimes occur together and that sometimes one replaces the other. Others, however, believe that transvestism and transsexualism are clearly distinguishable from homosexuality as:
· The crucial characteristic of the homosexual is the desire for a physical sex relation with a person of his own sex.
· Homosexuals do not want to change their sex and identity—a fundamental anomaly in transsexualism.
· A conspicuously feminine appearance and a life long preference for feminine games and activities are far more common in transsexualism than in homosexuality.
· The phantasies of pregnancy and passionate longing for a maternal role together with the desire for castration in an attempt to achieve anatomical resemblance to a womanthe characteristic of transsexualism are not found in the homosexuals.
Transvestism despite being called a special form of fetishism in which dress as a whole acted as fetish, can be distinguished from it on the basis that the fetish was necessary for attaining sexual satisfaction in fetishism, whereas wearing clothes of the opposite sex has nothing to do with exciting or satisfying sexual desire in transsexualism and tranvestism. Pennington [23] reported that some transvestites get sexual satisfaction by masturbating in front of a mirror (mirror complex). It has also been reported that in the early stages of transvestism, changing to the clothes of the opposite sex might be associated with pleasurable sexual feelings, but these feelings fade with the passage of time, this being in contrast to transsexualism.
To sum up, it should be possible to make a clear distinction between homosexuality and fetishism, on one hand, and if not transvestism, at least transsexualism, on the other.
Deviant Sexual Behavior and Gender Role
Attempts to distinguish between different types of deviant sexual behavior have led to the term “gender role” which means all those aspects of a persons behavior and attitudes that serve to disclose the person as having the status of a boy or man and girl or woman[21], it includes, but is not restricted to sexuality in the sense of eroticism. Gender role, also called psychologic sex, is one of the several components of the sex as for example: chromosomal sex, gonadal sex, internal anatomic sex, external anatomic sex, hormonal sex, sex of assignment and rearing and gender role or psychosexual identification.
It has been argued that an intersex state was present whenever chromosomal sex, gonadal sex and/or apparent sex (external genitals and body build) did not agree in full with psychological sex, and thus widened the concept of intersex to include deviations in psychosexual identification. When one considers psychologic sex to be a variable of sex, one does not need nonspecific, moralizing terms like perversion for classifying deviant sexual behavior: when a subject behaves like someone of the opposite sex and feels like someone of the opposite sex, it is a case of inversion in gender role. Thus Hampson[21] classified deviant sexual behavior according to whether or not it was associated with gender role inversion, fetishism, exhibitionism, and impotence being associated with a normal gender role, and transvestism and transsexualism being a form of gender role inversion.
Strolle[24], formulated the concept of “core gender identity” for the feeling of “I am a male” or “I am a female” as distinguished from gender role for a masculine or feminine way of behaving that seems to be a better term when describing the transsexuals feeling of the sex to which they belong.
Stages in Development of Transvestism and Transsexualism The literature contains exhaustive descriptions of the mental characteristics associated with transvestism and transsexualism [22, 25]. Most authors agree that transvestism usually makes its appearance early in life whereas the feeling of belonging to other sex usually becomes more intense around the time of adolescence, and from then on the deviation seems to split in two. Either the subjects remain content to dress in the clothes of the opposite sex, consistently or sporadically and are not particularly troubled by the external signs of sex on their bodies or they grow more and more repelled by their external sex characteristics. They become exceedingly convinced that nature has blundered and that they have the soul of one sex and the body of the other. They persist more and more in their demands for medical measures to change their sex. Some do what they can do to change their appearance themselves: the men pluck their eyebrows, remove their facial hair, shave their arms and legs and trim their pubic hair to make it look feminine [25].
In few cases, the anomaly comes and goes, the desire to change clothes or to be identified with the opposite sex waxing and waning, but in most cases the desire to pass over into the opposite sex grows steadily worse and worse and the victims often grow more and more suspicious of their fellowmen whom they feel make no effort to understand or help them. The end result is often a conviction that one is being persecuted. Conversely, many transsexuals do not ask for help until they break down under the pressure, material or mental, to which they are subjected. However, they want one kind of treatment only a change of sex; they never want to be cured of their aberration [23].
As time goes on, transsexualism becomes associated with other mental peculiarities. The subjects feel that their breasts are swelling, genitals are changing to those of opposite sex, some are convinced that they menstruate or regard their ejaculations as leucorrhoea. Some men have phantasies of being pregnant. Persons who feel that their anatomy is changing or who use drastic measures to change their appearance are invariably at the brink of disintegration in personality and attempts to make them change their ideas of belonging to the opposite sex, by psychotherapy or other measures, sometimes result in real psychosis. Sometimes the desire to change sex reaches the proportions of an obsession and in case they fail to get medical support and assurance for sex change surgically, their persecution complex may grow so intense that they may mutilate themselves to get the appearance they want, or become depressed or suicidal [26].
Genesis of Transsexualism
The following explanations are often forwarded:
(A)Psychologic explanations:Many stress the importance of an unhappy childhood in preventing normal psychosexual development. The terms, psychologic conditioning and faulty identification are often used in this regard. Some of the main explanations based on this reasoning are:
· Parental rejection due to the parents having wanted a child of the opposite sex may cause the child become prematurely occupied with the idea of masculinity and femininity, unsure of itself and regarding its genitals as the reason for its rejection.
· Dressing the child in the clothes of the opposite sex, at least off and on till the age of 3 or 4, may affect the boys conception of, and identification with, his own sex.
· Reversal in parental role, as for example, the male transvestite has a domineering, aggressive, overprotective mother and an inadequate father figure, either because of a weak, colorless father, or because of a family lacking a father. This may cause a compensatory, overmasculine attitude to militate against difficulty in identification and a feeling of inadequate masculinity. An enhanced identification with the parent of the opposite sex, or an inadequate identification with the parent of the same sex has also been reported to be responsible for the anomaly[27].
· A change in body image, for instance, through endocrine disorder, might tend to change psychosexual behavior, partly through the subjects own reaction to the change in their anatomy and partly through the reactions of others.
(B)Organic Explanations Include:
· Genetic factors: Barr and Bertrams discovery of sex chromatin led to many studies of chromosomal sex in transsexuals. Dowling [28], reported male transsexuals with positive sex chromatin. Physical abnormalities like scanty beard, high pitched voice, testicular hypoplasia and feminine build in the males and the virilism and poorly developed breasts in the females point to a constitutional origin of transsexualism.
· Hormones: Literature reports different cases of transsexualism and estrogen producing tumor of the adrenal glands, in which, the transsexualism diminished after the tumor was removed surgically. Cases of androgen producing testicular tumor combined with transsexualism have also been reported. Green [29] described a case of transvestism developing suddenly in connection with the development of liver cirrhosis, in which the anomaly disappeared after testosterone treatment, concluding that the anomaly might have been caused by the inability of the liver to conjugate circulating estrogens with the result that they reached an abnormally high concentration. Lief,et al.[30] described a case of cyclic variation between a feeling of masculinity and femininity with variations in the content of 17ketosteroids in the urine.
· Cerebral lesion: Cases of cerebral lesion associated with transsexualism and transvestism were described as far back as 1869. Some studies have pointed out that the anomaly might be derived from anomalies in the cerebral organization, while others suggested that a cerebral disorder of biochemical nature might be at fault. Cases of epilepsy among persons with this psychosexual anomaly provide more concrete evidence of the possibility of a cerebral lesion [23].
(C)Multifactorial theories:Some authors especially those with firsthand knowledge of a large number of cases, are inclined to believe that the anomaly is due to a combination of constitutional, psychological and hormonal factors. Many theories have been put forward to explain the syndrome. They include genetic or hormonal influences, psychosocial problems, social learning theories, and psychoanalytical theories. But the very existence of so many theories exemplifies that the genesis of the syndrome is not properly understood. The cause of transsexualism is still a mystery. In fact, nothing of its cause is known for certain. No physical laboratory test shows transsexuals to be consistently different hormonally, chromosomally, or morphologically; no mental tests show any consistent psychodynamic pattern. However, no true transsexual has yet been persuaded, bullied, drugged, analyzed, shamed, ridiculed, or electrically shocked into an acceptance of his or her physique. It is an immutable state. Even though for years in the future many may argue about the causes and nature of transsexualism, no one can deny that this is an identifiable, severe, and incapacitating disease, a pathologic condition, which is undesirable both for the patients and for the society [25].
Management
The management of transsexualism is one of the most demanding challenges in clinical sexology, requiring the collaboration of behavioral, endocrinologic, and surgical specialists, working as a team. The work of the behavioral scientist, whether a psychologist or a psychiatrist, is the most time consuming. It is highly unlikely that a transsexual person will seek help to reduce or eliminate his or her transsexual feelings. The behavioral scientist is the main person to identify patients with gender identity disorders and, along with the physician recommending hormone therapy and the surgeon who accepts the patient for gender reassignment surgery, shares equal responsibility for the selection of the patient and the final outcome of the assigned treatment [31].
The usual protocol for management of a transsexual condition is hormone therapy, followed by or simultaneously with facial hair electrolysis and reassignment surgery. Many studies have shown that with careful selection of patients and special care, many transsexuals have benefited from such reassignment [32].
The Henry Benjamin International Gender Dysphoria Association (HBIGDA), formed in 1978, has established the essential prerequisites for this protocol. These standards of care, which were first drafted in 1979 and were revised from time to time, have been accepted worldwide. They contain the criteria for diagnosis, hormonal and surgical sex reassignment, and the postoperative services to be provided. For a diagnosis of gender dysphoria, the following criteria must be fulfilled [33]:
· Two social scientists, one of whom must be a behavioral psychiatrist with an M.D. or the equivalent and the other may be a psychologist with a Ph.D. or the equivalent, must participate in the diagnosis. Their recommendations must be in writing.
· One of them must have known the patient in a diagnostic or therapeutic relationship for at least 6 months.
· It must be established that the patient has had uninterrupted and unchangeable feelings of being in the wrong body for more than 2 years.
· The patient should have had a successful crossliving test over a 1year period, which includes legal, social, and sexual success.
· Before any hormonal/surgical gender reassignment is contemplated, appropriate monitoring of the medical conditions, as well as the effects of the hormones on the various systems, should be accomplished with appropriate documentation. An endocrinologist, preferably a member of the same gender dysphoria team, should be entrusted with this task.
· When these diagnostic prerequisites have been wholly and completely met, the rearrangement of the body towards its new sexual appearance can be performed on those subjects whose true or, most appropriate, gender has been determined to be different from their present sexual appearance.
The wish of a transsexual person to reenter the society as a person with the physical and mental gender of choice without being “spotted” or without anyones “knowing” fulfills almost all of the preoperative objectives of transsexuals and should be the goal of surgical treatment. The aim of the treatment should also be to alleviate the depression that can result from the subjects feeling of inadequacy in relation to his or her physical and psychiatric state, which can lead to suicide or selfmutilation [34].
It is the surgeons duty to establish beyond a reasonable doubt that the gender dysphoria is genuine and that surgical reassignment will be beneficial. The patients human immunodeficiency virus status should be tested preoperatively, but a seropositive patient should not be discriminated against solely on that basis, because his or her expectation of life and particularly the quality of it cannot be truly assessed. However, in the case of a patient with AIDS, surgical intervention may not be done.
While reviewing the followup literature of sexreassignment surgery, Green and Fleming[35] concluded that preoperative factors indicating a favorable outcome include:(1) a reasonable degree of psychological stability, with no history of psychosis; (2) successful adaptation in the desired role for at least 1 year, with convincing physical appearance and behavior; (3) sufficient understanding of the limitations and consequences of the surgery; and (4) preoperative psychotherapy in the context of a gender identity program.
Medicolegal Considerations One of the first and most important issues confronting a transsexual patient is how far a new sex can be rectified in birth certificates and other documents of personal identity. In some countries like Sweden, West Germany, Finland, Czechoslovakia, Greece, Italy, Holland, Switzerland, Spain, the United Kingdom, and the United States, statutory provisions have been made; in others, it has been left rather vague. The courts decide each case on an ad hoc basis, depending on its merits [36, 37].
As early as 1955, in one case in Switzerland, it was held that “after sexreassignment surgery, the changed sex should be accepted. In granting him the civic status of women, we are satisfying the most profound desire of his being, while consolidating his psychic and moral equilibrium”. The first country to legislate was Sweden in 1972, followed by Italy, Spain, and Great Britain in 1982 and The Netherlands in 1984[37]. However, many countries still recognize only the biologic sex of a transsexual. According to courts, “although the transsexual no longer has the important feature of his/her original sex, he/she has not acquired the features of the opposite sex.” Courts in these cases do not take into consideration the one important factor for a transsexual: his or her psychosocial wellbeing.
Lord Justice Ormrod[38], summarized the courts inability to apply the medical professions approach to transsexualism thus: “The law depends upon precise definitions and is obliged to classify its material into exclusive categories. It is a binary system designed to produce conclusions of the yes or no type. Biologic phenomenon, however, cannot be reduced to exclusive categories so that medicine often cannot give yes or no answers… This fundamental conflict lies at the root of all relations between medicine and law”[39]. He developed the Ormrod test to determine the sexual identity of a person, based on three biologic factors: the chromosomal, the gonadal (the presence of ovaries/testes), and the genital (internal sex organs at the time of birth of the individual concerned). Based on this test, the court found in Corbett vs. Corbett[40] that the respondent, a postoperative female transsexual, was a male. Because marriage between members of same sex is not legally possible, the court in that particular case held the marriage between the respondent and the petitioner, both biologic males, to be null and void. The court in this case rejected a fourth factor, psychological basis, which was accepted by all the medical witnesses.
Cases relating to such issues as divorce, employment discrimination, medical benefits, and custody have been brought to the courts in many western countries. In most of these cases, the basic question to be decided has been the sexual identity of the postoperative transsexual: whether to legalize his or her new sex. Many courts have also decided on the grounds of nonconsummation of marriage to nullify the marriages of the postoperative transsexual. Some of those cases have gone further to the European Commission of Human Rights, viz., Van Oosterwijk vs. Belgium[41] and Rees vs. United Kingdom [42].
In the case of Van Oosterwijk vs. Belgium[41], the Commission found that the applicant had not exhausted all the domestic remedies available to him and dismissed the case. However, going into the merits of the case, the Commission found that by failing to amend the original birth records, the respondent state was violating Article 8 of the constitution, the right of respect of private and family life, and Article 12, the right to marry.
According to the Commission, “It would appear scarcely compatible with the obligation to respect private life to force a person who, on the recommendation of his doctor and by undergoing a lawful treatment, has taken on the appearance, and, to a large extent, the characteristics of the sex opposite to that which appears on his birth certificate, to carry identity documents which are manifestly incompatible with his appearance.” However, in the case of Rees vs. United Kingdom[42], the European Court did not touch on the main issue: the determination of the sexual identity of the postoperative transsexual right at the outset. This complicated the case, because the Court was forced to consider Mr. Rees as a biologic female, rather than a postoperative transsexual male, throughout the case. But the view of the European Court did force Germany, and much later France, to amend their laws in respect to the new gender of the postoperative transsexual. France has yet to recognize that the sex change did occur in a postoperative transsexual patient.
Many researchers have noted that male transsexuals have a weak sexual drive and the advanced cases were often characterized by “anorgasmie”. As to the sex object choice, Pauly[26] reported that 39% had overt sexual relationship with other men. Another study [20] found 12% transsexuals homosexually active. These studies reported that nearly all the transsexual women were homosexually inclined. However, those having homosexual relations do not regard these relations as homosexual because they identify themselves so strongly with the opposite sex, thus giving rise to another sociolegal issue.
Furthermore, the sex change operations lead to many complications in such issues as admission to educational institutions, employment, admission to hospitals or nursing homes, marriage, and divorce. Again, the question of recognition of the new gender of the postoperative transsexual patient has to be decided. In these and many other situations, a broadminded and sympathetic approach by the judiciary and the legislative bodies may help to reduce the agony and miseries of a transsexual who has acquired the physical traits of his or her psychological gender by undergoing a major, expensive, and lawful treatment recommended by a highly specialized, competent, and skillful team of doctors.
CONCLUSION
The World Health Organization defines health as “a state of complete physical, mental and social wellbeing, and not merely an absence of disease or infirmity.” This definition therefore projects three dimensions of healthphysical, mental, and socialall closely related. The enjoyment of the highest attainable standard of health has been declared a fundamental right of every human being, irrespective of race, religion, political belief, or economic and social conditions. In view of the above, legal recognition of the surgically changed gender will amount to discharging the obligation on the part of the state to provide a healthy life to its citizens. Recognition and acceptance by the society of his or her new gender, remaining the other important ingredient of the treatment of a transsexual person. However, with wider acceptance of transsexuals by society, this outlook has changed for the better, with many states amending their laws in accordance with the advances in medical sciences but a lot more remains to be done.
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(Editor Jaque)(B. R. Sharma)