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In August 1993, at the second annual meeting of the International Conference on Transgender Law and Employment Policy Inc. (ICTLEP) in Houston Texas, the Conference drafted and adopted a statement of rights entitled the International Bill of Gender Rights (IBGR).[1] This document is set out in full at the end of this paper in accordance with the requirement of the ICTLEP that "though copyrighted, [it] may be reproduced by any means and freely distributed by anyone supporting the principles and statements contained in the International Bill of Gender Rights".
The purpose of this paper is to examine the Rights stated in the document in the light of laws in various jurisdictions, particularly New Zealand (where I reside), some States of Australia (from whence I came) and the United Kingdom (where we are today).[2]
I start with the first right: the right to define gender identity:
It is fundamental that individuals have the right to define, and redefine as their lives unfold, their own gender identities, without regard to chromosomal sex, genitalia, assigned birth sex, or initial gender role
I am not aware of any jurisdiction that fully recognises this right. Either, as in England, it is not recognised at all. Or, as in New Zealand, it is recognised only in respect of transgender persons who have undergone invasive surgical and medical procedures.
In England, in Corbett v Corbett (Ashley),[3] Ormrod J. held that the marriage between April Ashley and Arthur Corbett was null and void and of no effect. Marriage is "the voluntary union for life of one man and one woman to the exclusion of all others".[4] April Ashley, who had been born a male but had had reconstructive surgery to be transformed as completely as possibly to a female, was held to be a male. Being a "male", she could not be married to another male. Ormrod J said that:
the biological sexual constitution of an individual is fixed at birth (at the latest) and cannot be changed either by the natural development of organs of the opposite sex, or by medical or surgical means. The respondent's operation cannot affect her true sex. [5]
It seems that Corbett v Corbett still represents the law in England.[6] In New Zealand, in Attorney General v Otahuhu Family Court,[7] the High Court held that:
where a person has undergone surgical and medical procedures that have effectively given that person the physical conformation of a person of a specified sex, there is no lawful impediment to that person marrying as a person of that sex
This judgment has been reinforced by the enactment of the Births, Deaths and Marriages Registration Act 1995 that includes provisions that enable a person to have information that she or he is of a nominated sex added to that person's registration of birth.
In Australia, the authority of Corbett v Corbett seems to be in decline. In South Australia, there is legislation of similar effect to the provisions of the New Zealand Births Deaths and Marriages Registration Act 1995 and in New South Wales there is legislation that prohibits discrimination on transgender grounds. Also in New South Wales, the Court of Criminal Appeal has recognised that, for the purpose of applying criminal law, a person who has undergone full sex reassignment surgery may be recognised as being of her assumed sex.[8] Street CJ commented[9] that "as a more compassionate tolerant attitude to the problem of human sexuality emerges amongst the civilised nations of the world, the founding of that decision on clinical factors present at birth has come under increasing criticism".
It should be noted that the developments in the Australian States may not be reflected in the field of family law, which is within the Federal (Commonwealth) jurisdiction. The only indications that Corbett v Corbett may not apply to marriages in Australia have come from decisions in respect of entitlement to Social Security benefits. Like family law, this is within the Commonwealth jurisdiction. Thus, for example, in Secretary, Department of Social Security v HH,[10] the Administrative Appeals Tribunal held that a male-to-female postoperative transgender person was a woman for the purposes of section 25(1) of the Social Security Act 1947 (Cth) and therefore entitled to an age pension at 60, rather than 65.[11]
The developments that have occurred in Australia and New Zealand do not go so far as to fully recognise that a person can define and redefine her or his own gender. Generally, for certain limited purposes, a person may only do so if she or he has undergone a process of physical reconstruction by hormone treatment and surgery. The emphasis is not on a person's feelings, beliefs or committment but on her or his physical appearance. Thus, section 28 of the New Zealand Births, Deaths and Marriages Registration Act 1995 requires, as a prerequisite to the amendment of a birth certificate, that the applicant:
Has undergone such medical treatment as is usually regarded by medical experts as desirable to enable persons of the genetic and physical conformation of the applicant at birth to acquire a physical conformation that accords with the gender identity of a person of the nominated sex
And, as this section illustrates, the gender of a person is identified not by that person but by "medical experts".
Having started this discussion on the first right with the comment that I am not aware of any jurisdiction that fully gives effect to it, I now draw attention to section 38A of New South Wales' recently enacted Transgender (Anti-Discrimination and other Acts Amendment) Act 1996. This provides that:
a) A reference in this Part to a person being transgender or a transgender person is a reference to a person, whether or not that person is a recognised transgender person:
b) who identifies as a member of the opposite sex by living, or seeking to live as a member of the opposite sex, or
c) who has identified as a member of the opposite sex by living as a member of the opposite sex, or
d) who, being of indeterminate sex, identifies as a member of a particular sex by living as a member of that sex, and includes a reference to the person being thought of as a transgender person, whether the person is, or was, in fact a transgender person.
The Act provides protection for people who would not be regarded as transgender persons for the purposes of other laws. It is concerned only with discrimination. In the field of criminal law, in New South Wales, it has been held that for a person to be recognised as a transgender person, she or he must have had reconstructive surgery.[12]
The second right stated in the International Bill of Gender Rights is the right to free expression of gender identity:
Given the right to define one's own gender identity, all human beings have the corresponding right to free expression of their self-defined gender identity.
In many jurisdictions, this right is protected to some extent by anti- discrimination legislation. Sometimes the legislation specifically addresses the issue of discrimination against transgender persons. For example, the New South Wales Transgender (Anti-Discrimination and other Acts Amendment) Act 1996 is, as stated in its long title, "[a]n Act ... to make discrimination and vilification on transgender grounds unlawful ..."
More often, anti-discrimination legislation only indirectly addresses this issue. It does not refer to the rights of transgender persons and any protection which it offers to them is merely incidental. Thus, the New Zealand Human Rights Act 1993 sets out a list of "prohibited grounds" of discrimination, none of which seem to relate to discrimination against transgendered persons. One of the grounds is "sex", but discrimination against a transgendered person is not discrimination because of her or his sex. It is discrimination because she or he has changed sex. Another ground is "sexual orientation" which is also generally inapplicable. The only ground that may apply is "disability" because this term is defined to include "Any . abnormality of . psychological, physiological, or anatomical structure or function". But would a transgender person want to take proceedings on the ground that she or he is under a disability? Anti-discrimination legislation such as this, which fails to clearly state all relevant ground of discrimination that should be prohibited, is unsatisfactory.
The third right, the right to secure and retain employment and to receive just compensation, is also concerned with issues of discrimination. It has been a major concern in the United Kingdom,[13] but not, as yet, in Australia and New Zealand.
The fourth right is the right of access to gendered space and participation in gendered activities:
Given the right to define one's own gender identity and the corresponding right to free expression of a self-defined gender identity, no individual should be denied access to a space or denied participation in an activity by virtue of a self-defined gender identity which is not in accord with chromosomal sex, genitalia, assigned birth sex, or initial gender role.
Two aspects of this right should be considered. The first is the general right of a person to go to places and do things that are permitted to other members of her or his gender in circumstances where she or he is not asserting what might be considered to be an unfair advantage. For example, a transgender person should be able to use a public toilet that is intended for use only of persons of the sex that she or he has assumed. Yet some may be inhibited in doing so by the reaction of other people using the toilet or by the fear of being prosecuted. Most - probably all - jurisdictions have laws similar to section 4 of the New Zealand Summary Offences Act 1981 which provides that it is an offence to behave in an offensive or disorderly manner in or within view of any public place. As may be expected, in applying this section, the Courts have regard to current community attitudes and not just the fact that a particular person may have been outraged or distressed.[14] In New Zealand, where the assumed sex of a person is accorded recognition for specified purposes, both by legislation and by the Courts, it would be difficult to say that such a person commits an offence by going to a public toilet. The situation should be the same for a person who has not undergone full sex reassignment surgery, especially if they are living as a woman or a man in anticipation of surgery.
In those jurisdictions where the assumed sex of a transgendered person is not generally recognised by the law the situation may be different.
Another situation where transgender persons are deprived of the right of access to gendered space and participation in gendered activities is where male to female transgender persons are excluded from activities that are restricted to women only.[15] The legal position in these cases is always a bit
murky. Anti-discrimination laws may apply in some jurisdictions[16] but, generally, they do not. One thing that the cases illustrate is the fact that transgender persons sometimes face hostility from a wide range of people, some of whom would take pride in their political correctness, and not just people who complain about transgender persons using a public toilet.
The second aspect is the right of transgendered persons to engage in activities in which they may have what is considered to be an advantage over other participants. Should someone in the position of Renee Richards, a male to female transsexual who as a male had been a very good tennis player, be permitted to participate in sporting events that are restricted to women only? There is a widely held view that to do so would provide that person with an unfair advantage over the other participants.[17] This view is reflected in the New South Wales Transgender (Anti-Discrimination and other Acts Amendment) Act 1996, section 38P of which provides:
Nothing in this Part renders unlawful the exclusion of a transgender person from participation in any sporting activity for members of the sex with which the transgender person identifies.
The Act contains a similar exception in respect of superannuation or provident funds or schemes. On the assumption that a person's life expectancy is determined by reference to gender at birth and is not affected by that person changing sex, an insurance company is permitted to assess a transgender person as if she or he had not changed gender.
The fifth right is the right to control and change one's own body:
All human beings have the right to control their own bodies, which includes the right to change their bodies cosmetically, chemically, or surgically, so as to express a self-defined gender identity.
This right is closely related to and is considered together with the sixth right - the right to competent medical and professional care - and the seventh right: the right to freedom from psychiatric diagnosis and treatment.
Here, the important issue in law is who is entitled to make the decisions on these matters; the client or consumer (who the doctor probably calls the patient) or the doctor, or perhaps someone else.
Members of the medical profession either apply or are greatly influenced by the standards of care presented by the Harry Benjamin International Gender Dysphoria Association Inc. as the appropriate standards of care to be offered to applicants for hormonal and surgical sex reassignments. These are set out in full on the Internet at http://www.tx.umn.edu/nihome/m201/ colem001/hbigda/hstndrd.htm. Generally, it may be said of them that they urge caution. They include the following:
Hormonal and/or surgical sex reassignment on demand (i.e. justified simply because the patient has requested such procedures) is contraindicated. It is herein declared to be professionally improper to conduct, offer, administer or perform hormonal sex reassignment and/or surgical sex reassignment without careful evaluation of the patient's reasons for requesting such services and evaluation of the beliefs and attitudes upon which such reasons based.
Hormonal and surgical (genital and breast) sex reassignment must be preceded by a firm written recommendation for such procedures made by a clinical behavioral scientist who can justify making such a recommendation by appeal to training or professional experience in dealing with sexual disorders, especially the disorders of gender identity and role.
Hormonal and surgical sex reassignment may be made available to intersexed patients and to patients having non-transsexual psychiatric/psychological diagnosis if the patient and therapist have fulfilled the requirements of the herein listed standards; if the patient can be reasonably expected to be habilitated or rehabilitated, in part, by such hormonal and surgical sex reassignment procedures; and if all other commonly accepted therapeutic approaches to such intersexed or non-transsexual psychiatrically/psychologically diagnosed patients have been either attempted, or considered for use prior to the decision not to use such alternative therapies. The diagnosis of schizophrenia, therefore, does not necessarily preclude surgical and hormonal sex reassignment.
The initiation of hormonal sex reassignment shall be preceded by recommendation for such hormonal therapy, made by a clinical behavioral scientist.
Genital sex reassignment shall be preceded by a period of at least 12 months during which time the patient lives full-time in the social role of the genetically other sex."
These standards may be criticised on the grounds that they are paternalistic, that they regard the client/consumer as incompetent and that they impose excessive restraints and ordeals on the client/consumer.[18]
Do they accord with medical practice in other fields?
In England, the general standard in respect of patient autonomy is known as the Bolam principle. In Sidaway v Governors of Bethlem Royal Hospital,[19] Lord Scarman stated the principle in these terms:
The Bolam principle may be formulated as a rule that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice. In short, the law imposes a duty of care: but the standard of care is a matter of medical judgment.
Here, the emphasis is on accepted medical practices and on medical judgment, i.e., the judgment of the doctor. The standard is expressed in the
context of the issue of informed consent: where a patient agrees to proceed with medical treatment on the basis of information that has been provided by her or his doctor. However, the situation is comparable to that of a doctor deciding whether or not to allow a willing client/consumer to proceed with treatment without reference to her or his wishes. In both cases, an assumption is made as to the client/consumer's right or ability to participate in the decision making process.
While England clings to the Bolam principle, other jurisdictions, notable Australia,[20] Canada,[21] New Zealand[22] and the United States of America,[23] have substantially rejected it. In these jurisdictions, emphasis is placed on the wishes of the client/consumer. Thus, in Rogers v Whitaker,[24] the majority judgment of the Full Court of the High Court of Australia said:
The law should recognise that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it. This duty is subject to therapeutic privilege.
Here, although there is reference to the "reasonable person", she or he is identified as being "in the patient's position" and the medical practitioner is required to "reasonably be aware" of the concerns of "the particular patient".
Proponents of the Benjamin standards may argue that these views are expressed in a different context from that to which the Benjamin standards are applied. Generally they relate to situations where a patient's life or health is at risk and a decision must be made immediately about appropriate treatment. Where decisions are to be made about whether and when transgender persons may have hormonal or surgical sex reassignment treatment, there is less urgency. It may be argued that the treatment is not going to do anything to improve the physical health of a client/consumer and indeed may be deleterious to her or his health.
This attitude, of course, disregards other aspects of the health and general happiness of the client/consumer.
The strongest argument in favour of the Benjamin standards is that hormonal and surgical treatment is invasive and should not happen unless and until it is clear that the client/consumer is fully aware of all its implications and is certain that she or he wants it. Psychological diagnosis or treatment may also be justified in circumstances where it is directed to helping a client/consumer adjust to a new life. However, it is suggested that the standards should be revised to contain safeguards and at the same time focus on the needs and wishes of the clients/consumers from their point of view and not from the doctor's point of view.
The eighth right is the right to sexual expression:
Given the right to a self-defined gender identity, every consenting adult has a corresponding right to free sexual expression.
This right is closely related to the second right - the right to free expression of gender identity - and to the fourth right: the right of access to gendered space and participation in gendered activities. The comments made above on these rights apply also to the right to sexual expression.
The ninth right is the right to form committed, loving relationships and enter into marital contracts:
Given that all human beings have the right to free expression of self-defined gender identities, and the right to sexual expression as a form of gender expression, all human beings have a corresponding right to form committed, loving relationships with one another, and to enter into marital contracts, regardless of their own or their partner's chromosomal sex, genitalia, assigned birth sex, or initial gender role.
The right of transgender people to marry is discussed above under "the right to define gender identity". Here, I comment on two issues: first, the real importance of this right; and secondly, the futility of withholding it from certain members of society.
As to the first issue, it may be asked why are we so concerned with the right to marry when marriage provides no benefits that cannot be obtained from a well drafted contract. Terri Webb stated the point as follows:[25]
We are living in a world in which it is increasingly becoming a preferred option not to legitimise a relationship by legal marriage. It is significant that it is transsexuals who are so frequently in the forefront of reaction on this issue of marriage. ... I have no sympathy with this "orthodox" transsexual thinking at all. I know one doesn't have to accept a sexist definition of society in order to contemplate marriage, but in this case why get married? As far as I know all the advantages of marriage could be covered by a civil contract that any competent solicitor could draw up. It should not be impossible to make arrangements for any children that might be involved.
While this comment is generally correct in respect of the practical benefits of marriage,[26] it remains true that the institution of marriage is considered by many to be an important feature of our society. People who get married believe that, by doing so, they acquire respectability and status. Other people choose not to marry. But that is their choice. If they were deprived of the right to marry, they would be entitled to feel outraged. By depriving transgender and other people of right to marry, we reduce their status in society.
As to the second issue, in ancient times (thirty years ago), when the capacity for heterosexual intercourse was regarded as an essential element
of marriage, there may have been some basis for not allowing transgender persons the right to marry. But this is no longer the law. In Attorney General v Otahuhu Family Court,[27] Ellis J said of the law in New Zealand:
In my view the law ... has changed to recognise a shift away from sexual activity and more emphasis is being placed on psychological and social aspects of sex, sometimes referred to as gender issues.
From this, it is, or should be, just a short step to acknowledging that marriage is simply the recognition by the State of a relationship in respect of which the gender of the parties is irrelevant. The present requirement that one party to a marriage must be a male (chromosomal or otherwise) and that the other party must be a female (chromosomal or otherwise) is superfluous and should be abolished.
(x) The Right to Conceive, Bear, or Adopt Children; The Right to Nurture and Have Custody of Children and to Exercise Parental Capacity
The tenth right is the right to conceive, bear, or adopt children; the right to nurture and have custody of children and to exercise parental capacity:
Given the right to form a committed, loving relationship with another, and to enter into marital contracts, together with the right to express a self-defined gender identity and the right to sexual expression, individuals have a corresponding right to conceive and bear children, to adopt children, to nurture children, to have custody of children, and to exercise parental capacity with respect to children, natural or adopted, without regard to chromosomal sex, genitalia, assigned birth sex, or initial gender role, or by virtue of a self-defined gender identity or the expression thereof.
The right of any adult in respect of a child must always be subject to the best interests of the child. In most countries, this is clearly expressed in legislation and in judicial pronouncements of the highest courts. However, as illustrated by the following extract from the Guardian Weekly of 4 May, 1997, other agendas sometimes intervene:
a transsexual who was born a female lost a long court battle for legal recognition as the father of his long term partner's four children. In a test case that essentially confirmed the British legal position that a man is defined by his chromosomes, the European Court of Human Rights dismissed by 16 votes to four, a claim by Stephen Whittle that the British ruling denied his rights to family life.
Doctor Whittle, aged 41, a, law lecturer at Manchester Metropolitan University, underwent a sex change operation more than 20 years ago. He lives with Sarah Rutherford and the four children she conceived through artificial insemination by donor. He said he was disappointed by the failure of the test case, which would have brought Britain in line with most other European countries, which recognise sex change.
The judgment is a setback for two male-to-female transsexuals who are going to the Strasbourg court to challenge the government's refusal to allow them to change their birth certificates to reflect their adopted gender. They have the backing of the European Commissioner of Human Rights. But that Commissioner also backed Dr. Whittle's case.
The article places emphasis on the rights of Stephen Whittle rather than on the best interests of the children. If it correctly reflects the approach that was taken by the court, then, I respectfully suggest that the court got it wrong. But, whichever approach is applied, the correct answer is that Stephen Whittle should be recognised as the father of his children.
In this paper, rather than present a comprehensive guide to the law in various jurisdictions, I have tried to show the different ways in which the rights of transgender persons have been treated in these jurisdictions. Having worked my way through each of the rights, I have formed two conclusions.
First, I confirm my endorsement of the rights and of the terms in which they are expressed. However, I recognise that they are expressed as a bare statement of rights and that they must be interpreted in context. In particular, in respect of adoption and custody, it is important to have regard for and to give priority to the best interests of the child. Also, the cautious attitude of doctors to hormone treatment and surgery, both of which are invasive, should be respected. Having said that, I believe that a more appropriate balance must be struck between the concerns of doctors to provide the best service for their clients/consumers and the desires and concerns of the clients/consumers to be provided with the services that they seek. The Benjamin standards are excessively paternalistic.
Secondly, I submit that the International Bill of Gender Rights should be given legal effect by:
• allowing people to marry, regardless of gender;
• allowing people to define their own gender as they want;
• disregarding gender as a determinative factor in issues concerning children and concentrating on the best interests of the children;
• redefining criminal liability so that it is determined according to the intention of the criminal and the harm that is inflicted on the victim and not according to whether one or the other is male or female.
By doing so, we would promote those traditional values: efficiency and certainty in the law.[28] More importantly, in each case, we would cease to focus on the concept of a fixed societal gender and instead focus on such things as the promotion of happiness in relationships, the self respect of individuals, the best interests of children and the welfare of victims of violent crimes.
The restatement of the International Bill of Gender Rights (IBGR) was first drafted in committee and adopted by the International Conference on Transgender Law and Employment Policy, Inc. (ICTLEP) at that organization's second annual meeting, held in Houston, Texas, August 26-29, 1993.
The IBGR combines and expands from two earlier documents authored separately by Jo Ann Roberts of Pennsylvania and Sharon Stuart of New York.
The IBGR strives to express fundamental human and civil rights from a gender perspective. However, the ten rights enunciated below are not to be viewed as special rights applicable to a particular interest group. Nor are these rights limited in application to persons for whom gender identity and role issues are of paramount concern. All ten parts of the IBGR are universal rights which can be claimed and exercised by every human being.
The IBGR is a theoretical expression which has no force of law absent its adoption by legislative bodies and recognition of its principles by courts of law, administrative agencies and international bodies such as the United Nations.
However, individuals are free to adopt the truths and principles expressed in the IBGR, and to lead their lives accordingly. In this fashion, the truths expressed in the IBGR will liberate and empower humankind in ways and to an extent beyond the reach of legislators, judges, officials and diplomats.
When the truths expressed in the IBGR are embraced and given expression by humankind, the acts of legislatures and pronouncements of courts and other governing structures will necessarily follow. Thus, the paths of free expression trodden by millions of human beings seeking to define and express themselves, and give meaning to their lives, will ultimately determine the course of governing bodies.
The IBGR is a transformative and revolutionary document, but it is grounded in the bedrock of individual liberty and free expression. As our lives unfold, these kernels of truth are here for all who would claim and exercise them.
This document, though copyrighted, may be reproduced by any means and freely distributed by anyone supporting the principles and statements contained in the International Bill of Gender Rights.
The IBGR remains subject to review and revision by ICTLEP. Proposed revisions to the IBGR and comments should be forwarded to Sharon Stuart, International Bill of Gender Rights Project, P.O. Box 930, Cooperstown, NY 13326, U.S.A. Telephone: (607) 547-4118. E- mail: StuComOne@aol.com
All human beings carry within themselves an ever-unfolding idea of who they are and what they are capable of achieving. The individual's sense of self is not determined by chromosomal sex, genitalia, assigned birth sex, or initial gender role. Thus, the individual's identity and capabilities cannot be circumscribed by what society deems to be masculine and feminine behaviour. It is fundamental that individuals have the right to define, and to redefine as their lives unfold, their own gender identities, without regard to chromosomal sex, genitalia, assigned birth sex, or initial gender role.
Therefore, all human beings have the right to define their own gender identity regardless of chromosomal sex, genitalia, assigned birth sex, or initial gender role; and further, no individual shall be denied Human or Civil Rights by virtue of a self-defined gender identity which is not in accord with chromosomal sex, genitalia, assigned birth sex, or initial gender role.
Given the rights to define one's own gender identity, all human beings have the corresponding right to free expression of their self-defined gender identity.
Therefore, all human beings have the right to free expression of their self-defined gender identity; and further, no individual shall be denied Human or Civil Rights by virtue of the expression of a self- defined gender identity.
Given the economic structure of modern society, all human beings have a right to train for and to pursue an occupation or profession as a means of providing shelter, sustenance, and the necessities and bounty of life, for themselves and for those dependent upon them, to secure and retain employment, and to receive just compensation for their labor regardless of gender identity, chromosomal sex, genitalia, assigned birth sex, or initial gender role.
Therefore, individuals shall not be denied the right to train for and to pursue an occupation or profession, nor be denied the right to secure and retain employment, nor be denied just compensation for their labor, by virtue of their chromosomal sex, genitalia, assigned birth sex, or initial gender role, or on the basis of a self-defined gender identity or the expression thereof.
Given the right to define one's own gender identity and the corresponding right to free expression of a self-defined gender identity, no individual should be denied access to a space or denied participation in an activity by virtue of a self-defined gender identity which is not in accord with chromosomal sex, genitalia, assigned birth sex, or initial gender role.
Therefore, no individual shall be denied access to a space or denied participation in an activity by virtue of a self-defined gender identity which is not in accord with chromosomal sex, genitalia, assigned birth sex, or initial gender role.
All human beings have the right to control their bodies, which includes the right to change their bodies cosmetically, chemically, or surgically, so as
to express a self-defined gender identity.
Therefore, individuals shall not be denied the right to change their bodies as a means of expressing a self-defined gender identity; and further, individuals shall not be denied Human or Civil Rights on the basis that they have changed their bodies cosmetically, chemically, or surgically, or desire to do so as a means of expressing a self-defined gender identity.
Given the individual's right to one's own gender identity, and the rights to change one's own body as a means of expressing a self-defined gender identity, no individual should be denied access to competent medical or other professional care on the basis of the individual's chromosomal sex, genitalia, assigned birth sex, or initial gender role.
Therefore, individuals shall not be denied the right to competent medical or other professional care when changing their bodies cosmetically, chemically, or surgically, on the basis of chromosomal sex, genitalia, assigned birth sex, or initial gender role.
Given the right to define one's own gender identity, individuals should not be subject to psychiatric diagnosis or treatment solely on the basis of their gender identity or role.
Therefore, individuals shall not be subject to psychiatric diagnosis or treatment as mentally disordered or diseased solely on the basis of a self-defined gender identity or the expression thereof.
Given the right to a self-defined gender identity, every consenting adult has a corresponding right to free sexual expression.
Therefore, no individual's Human or Civil Rights shall be denied on the basis of sexual orientation; and further, no individual shall be denied Human or Civil Rights for expression of a self-defined gender identity through sexual acts between consenting adults.
Given that all human beings have the right to free expression of self- defined gender identities, and the right to sexual expression as a form of gender expression, all human beings have a corresponding right to form committed, loving relationships with one another, and to enter into marital contracts, regardless of their own or their partner's chromosomal sex, genitalia, assigned birth sex, or initial gender role.
Therefore, individuals shall not be denied the right to form committed, loving relationships with one another or to enter into marital contracts by virtue of their own or their partner's chromosomal sex, genitalia, assigned birth sex, or initial gender role, or on the basis of their expression of a self-defined gender identity.
Given the right to form a committed, loving relationship with another, and to enter into marital contracts, together with the right to express a self- defined gender identity and the right to sexual expression, individuals have a corresponding right to conceive and bear children, to adopt children, to nurture children, to have custody of children, and to exercise parental capacity with respect to children, natural or adopted, without regard to chromosomal sex, genitalia, assigned birth sex, or initial gender role, or by virtue of a self-defined gender identity or the expression thereof.
Therefore, individuals shall not be denied the right to conceive, bear, or adopt children, nor to nurture and have custody of children, nor to exercise parental capacity with respect to children, natural or adopted, on the basis of their own, their partner's, or their children's chromosomal sex, genitalia, assigned birth six, or initial gender role, or by virtue of a self-defined gender identity or the expression thereof.
[*] Associate Professor of Law, University of Canterbury.
Paper presented at the International Conference on "Gender Sexuality and the Law" at Keele University in June 1998.
[1] See http://www.altsex.org/transgender/ibgr.html. The International Bill of Gender Rights is also set out in full as an appendix in Leslie Feinberg Transgender Warriors (Boston, Beacon Press, 1996).
[2] For further discussion of the laws, particularly in Australia and New Zealand, see Andrew Alston "Legal Aspects of Gender Reassignment" (1998) 5 JLM 279.
[4] per Wilde JO (later Lord Penzance) in Hyde v Hyde [1861-73] All ER 173 (1866)
[5] [1971] P 83 at 104.
[6] See the discussion below on Dr Whittle's application for legal recognition as the father of his partner's children.
[7] [1994] NZHC 1160; [1995] 1 NZLR 603 at 607-608
[8] R v Harris and McGuinness (1989) 35A Crim R 146
[9] Ibid at 148.
[10] [1991] AATA 94; (1991) 13 AAR 314.
[11] See also Secretary, Department of Social Security v SRA [1993] FCA 573; (1993) 118 ALR 467. For further discussion of these cases, see Bates F "When is a Wife... ?" (1993) 7 Australian Journal of Family Law 274-282; Mountbatten J "Transsexuals and Social Security Law: The Return of Gonad the Barbarian" (1994) 8 Australian Journal of Family Law 166-177; and Sharpe A "The Transsexual and Marriage" (1997) 7 Australasian Gay and Lesbian Law Journal 1-14.
[12] R v Harris and McGuinness (1989) 35A Crim R 146.
[13] See P v S and Cornwall County Council Case C 13/94 where the European Court of Justice determined that discrimination in employment in the United Kingdom based on transsexualism contravened articles 2(1) - "no discrimination whatsoever on grounds of sex either directly or indirectly ..." and 5(1) in relation to "working conditions, including the conditions governing dismissal..." of the European Convention on Human Rights.
[14] In New Zealand, see the case of Ceramalus v Police (1991) CRNZ 678 (High Court).
[15] See discussions on this in Pat Califa Sex Changes: the Politics of Transgenderism (Cleis Press, California, 1997), Ch 3 "The Backlash: Transphobia in Feminism" and Leslie Feinberg Transgender Warriers (Beacon Press, Boston, 1996), Ch 14 "Sisterhood: Make it Real!"
[16] For example, New South Wales.
[17] See the submissions of Ms Vivian Ullrich who appeared as amicus curia (friend of the court) in Attorney -General v Otahuhu Family Court [1994] NZHC 1160; [1995] 1 NZLR 603. Her submissions are attached to and form part of the judgment. For a contrary view, see A Sharp, "Naturalising Sex Difference Through Sport. An Examination of the New South Wales Transgender Legislation" (1997) 22(1) Alt LJ 40.
[18] It is interesting to compare the caution of the medical profession in respect of hormone treatment and surgery for adult transgender persons with its lack of caution in respect of infant intersexual persons who, before they are old enough to be able to express an opinion about their own gender, are subjected to surgical and hormonal intervention to make them conform to the doctors' vision of their "true" sex. For further discussion on this point, see Leslie Feinberg Transgender Warriors (Boston, Beacon Press, 1996), pp 103-104.
[19] [1995] AC 871 (HL) at 881.
[20] Rogers v Whitacker [1992] HCA 58; (1992) 175 CLR 479.
[21] Reibl v Hughes [1980] 2 SCR 880; (1980)114 DLR (3rd) 1.
[22] The Health and Disability Commissioner (Code of Health and Disability Services Consumers' Rights) Regulations 1996: RIGHT 5 Right to Effective Communication; RIGHT 6 Right to be Fully Informed; RIGHT 7 Right to Make An Informed Choice and Give Informed Consent.
[23] Canterbury v Spence (1972) 464 F. 2d 772 at 789.
[24] [1992] HCA 58; (1992) 175 CLR 479 at 490.
[25] Terri Webb, Autobiographical Fragments from a Transsexual Activist in Elkins and King Blending Genders: Social Aspects of Cross-dressing and Sex-changing (Routledge, London, 1996), Ch 13, p 191
[26] In some areas the benefits accorded by marriage cannot be provided for in a contract. In a number of jurisdictions, for certain purposes, the law will disregard contractual arrangement between parties and accord preference to those who are married: for example, any case where decisions have to made as to "the best interests of the child"; testator's family maintenence (family protection); and superannuation.
[27] [1994] NZHC 1160; [1995] 1 NZLR 603 at 606.
[28] These values are more often advocated as reasons against change.
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