1. Sex as a transdisciplinary notion
If one takes a closer
look at the medical definitions of sex, it is easy to realize to what
extent we are dealing with a plurality of notions that come from very different
fields of research.The definition that we may find in a standard
medical dictionary distinguishes among:
Sex (chromosomal): A distinctive character of most animals
and plants determined by the presence of the XX (female) or the XY (male)
genotype in somatic cells, without regard to phenotypic manifestations.
Sex (endocrinological): Based on the type
of gametes produced by the gonads, ova (macrogametes) being typical of the
female, and spermatozoa (microgametes) of the male, or the category in which
the individual is placed on such basis.
Sex (anatomical): That part of the
phenotypic sex that is determined by the morphology or genital tissues.
Sex (behavioral1): The sum of
functional and behavioral characteristics of living things that are involved in
reproduction and that distinguish males and females.
Sex (behavioral2): The sum of social
orientations and intimate behaviors that characterize the sexual identity of an
individual.
As we can see, these definitions appeal to a
variety of scientific expertise, from genetics to endocrinology, from anatomy
to psychology and sociology. The biological received view about sexual
determination is that each human has two sex chromosomes coding for maleness
and femaleness that produce gonadal differences in utero and initiate a
cascade of sexual differences in pre and post-natal development. But the
relation between genetic and phenotypic expression is far from being understood
in modern biology, and a certain determinism that characterized genetic biology
in the XX century, according to which genes determine the phenotype is today
obsolete.[6]
The anatomical view associates phenotypical
expressions to morphological traits. But, as classical research on
hermaphroditism has shown,[7]
the morphological expression of the gonadal anatomy is not enough to determine
the sex of the individual. In a famous survey over more than one hundred cases
of children hermaphodytes, the psychologist and sexologist John Money[8]
suggested that gender should not be assigned to hermaphrodite children
according to their anatomy, but according to observation of their behavior
after the age of two-and-a-half-year. By the way, it is interesting to remind
that Money was one of the first psychologists who claimed that distinguishing
between sex and gender was necessary in cases of sex reassignment, although he
is notoriously famous for the sad case of the sex reassignment of David Reimer
(born Bruce Peter Reimer in 1965), whose penis was accidentally destroyed
during a circumcision when he was a child and was reassigned and raised by his
parents as a female - following
the suggestion of Dr. Money. The reassignment, based on Money’s insights about
the opportunity of a gender/sex distinction, ended up in a disaster. He decided
to go back to his male identity during his adolescence, and, after a series of
ups and downs and a broken marriage, he committed suicide at age 38. This sad
story shows how delicate is to stick to the anatomical expression of sexual
tissues to a permanent identity.
As the behavioral characteristics associated with
sex, there exist a vast empirical literature that shows how weak and
contextually dependent these associations are.[9] As we have
said, deconstructing the binary boundaries of gender has been a major intellectual
achievement of gender studies in the 1990.[10] But, as the
definitions of sex discussed above show, it is clear that the notion of sex
also is problematic, heavily socially constructed and normatively used in many
contexts.[11]
Instead of restating what the literature on
gender studies has already said, that is, that both gender and sex are socially
constructed notions, we would like to take a transdisciplinary stance and
insisting on the vectorial, multidimensional transdisciplinary dimension of the
notion of sex. Sexual differences are a societal norm, a biological reality, a
strong social intuition that allows us to make sense of the social world is
around us. Revealing their socially constructed dimension doesn’t mean that we
can get rid of them: reading the social world as a sexed reality is something
that is there to stay, even if we can avoid many prejudices and injustices by
acknowledging the transdisciplinary aspect of the notion.
2. Health as a
transdisciplinary notion
Health is also a transdisciplinary notion that is
unstable between a normative and a descriptive reading. The World Health
Organization defines health in the following way: “Health is a state of
complete physical, mental and social well-being and not merely the absence of
disease or infirmity”.[12]
“To be in good health thus describes a much more complex state than just the
absence of any infirmity: the definition points to a state of well-being whose
realization goes far beyond the medical competences and involves the whole
organization of society.
In order to assure health as a fundamental right,
a legislation must exist that is able to realize the infrastructures, the
institutions and the social conditions for the realization of this right.
Sexual health is defined by the OMS in the
following way:
“Sexual health is a
state of physical, emotional, mental and social well-being in relation to
sexuality; it is not merely the absence of disease, dysfunction or infirmity.
Sexual health requires a positive and respectful approach to sexuality and
sexual relationships, as well as the possibility of having pleasurable and safe
sexual experiences, free of coercion, discrimination and violence. For sexual
health to be attained and maintained, the sexual rights of all persons must be
respected, protected and fulfilled.”[13]
Thus, as we may see, health is not
a medical notion, rather, a complex, transdisciplinary notion that involves all
the layers of society: legal, social, economical and moral. The definition of
sexual rights is also complex and far from being uncontroversial: On the
website of WHO, although the definition is not considered as “official” (yet,
it is odd that an “unofficial” definition is displayed on the website…) we find
the following defintion:
Sexual rights
Sexual rights embrace human rights
that are already recognized in national laws, international human rights
documents and other consensus statements. They include the right of all
persons, free of coercion, discrimination and violence, to:
.
the highest attainable standard of sexual health,
including access to sexual and reproductive health care services;
.
seek, receive and impart information related to
sexuality;
.
sexuality education;
.
respect for bodily integrity;
.
choose their partner;
.
decide to be sexually active or not;
.
consensual sexual relations;
.
consensual marriage;
.
decide whether or not, and when, to have children; and
.
pursue a satisfying, safe and pleasurable sexual life.
The responsible exercise of human
rights requires that all persons respect the rights of others.
As we may see, here also, we deal
with a cluster of notions, norms, descriptions, desiderata, that involve
educational issues, norms on marriage, reproductive needs, and information
disclosure. There is no single discipline that can deal with the different
cultures of marriage, the access of sexual education and the prevention of
infective diseased sexually transmitted. There is no discipline that may set
the standards of what is a “satisfying, safe and pleasurable sexual life”.
In the following we will take this
transdisciplinary perspective to discuss the right of the determination of
one’s own gender as a fundamental human and health right. As we hope to show,
the failure to take into account the transdisciplinary dimensions of all these
notions (sex, gender and health) has created ambiguous interpretations of the
law and a normative vacuum on the right of deciding of one’s own gender determination
and the practices associated to the public acknowledgement of this right.
3. A brief history of
transexualism
Historically, transexualism was identified in
psychoanalysis as an undifferentiated perversion, close to a cluster of
pathologies such as transvestic
fetishism (DSM IV, 302.3) that involves cross-dressing. The first operation of
sex reassignment was performed in Germany by Magnus Hirschfeld in 1931.[14] But the first case in which
transexualism was recognized as a distinctive gender dysphoria from
transvestitism and other pathologies was in 1952, when Christine (George)
Jorgensen was operated in Denmark under the claim that he was a woman “trapped”
in a man’s body. This allowed for the definition of a new syndrome, distinct
from the pathology of transvestitism, called “transexualism”. The
endocrinologist Harry Benjamin defined in 1954 transexualism as unique illness,
a non-psychopatic sexual disorder, distinct from homosexuality and
transvestitism and perhaps related to endocrinological problems. In United
States, between 1950 and 1970, there was a lively discussion around Benjamin’s
idea of a special transexual illness, especially among psychoanalists who went
on for longtime considering transexualism as a mental pathology to be healed
through psychotherapy and not through clinical surgery.[15]
The current diagnosis of transexualism in the DSM
and in the International Classification of Diseases (ICD-10) is a medical
condition although not a mental illness. For reasons that are left unspecified
(genetical/endocrinological) transexual subjects feel and declare that they
belong to the opposite sex. As the DSMIV specifies: “The cross-gender
identification must not merely be a desire for any perceived cultural
advantaged of being the other sex. There must be also evidence of persistent
discomfort about one’s assigned sex or a sense of inappropriateness in the
gender role of that sex […] To make the diagnosis, there must be evidence of
clinical significant distress or impairment in social, occupational and other
important areas of functioning” (p.533). The ICD-10 classification reads as
follows: “"F64.0 Transsexualism A desire to live and be accepted as a
member of the opposite sex, usually accompanied by a sense of discomfort with,
or inappropriateness of, one's anatomic sex, and a wish to have surgery and
hormonal treatment to make one's body as congruent as possible with one's
preferred sex."
Transexualism as a “social kind” to use the
expression of the philosopher Ian Hacking, has thus an unstable history: one
the one hand, its conceptualization as a mental illness was challenged by
scientists and by transexual people, claiming that it was not just a variant of
“gender identity disorder”, but a real physical state of being “trapped” in the
wrong sex. On the other hand, this claim promoted the surgery of sex
reassignment, thus the strong association between sexual identity and the
anatomical expression of sex, an association that, as we will see, has been
challenged in the recent years. In the Seventies, the John Hopkins hospital
became in United States the center of the competences for sex reassignment
surgery, under the influence of psychiatrists such as John Money and Eugene
Meyer surgeons such as Milton Edgerton. The reaction of the psychiatric/psychoanalitic
community to this practice was strong: there were many who affirmed that those
who practiced sex reassignment plastic surgery were complying with psychopats:
They attacked surgery as non-therapeutic. If patients' requests represented "a
surgical acting out of
psychosis" (Volkan and Bhatti, 1973), then surgeons were guilty of "collaboration with
psychosis" (Meerloo, 1967:263). In an arm race of surveys and
publications, evidence was found for the two positions: it was shown that most
of the patients applying to the surgery were affected by various psychotic
diseases, such as schizophrenia, neurosis, thus confirming the idea that sexual
reassignment surgery was a “way of collaborating with psychosis”. Yet, Pauley
(1968) reviewed 121 cases of transexual surgeries and concluded that patients
had improved their psychical condition after surgery. These data are today
challenged by other surveys (see Billing and Urban 1982 for a review)
Thus, the making of “transexualism” as a special
condition has a complex history that alternates two interpretations of this
psycho/physical state as well as different “fights for rights”. The recognition
of transexualism as a distinct condition thanks to the research at the John
Hopkins hospital in the Sixties was certainly an improvement towards the rights
of transgender people and the public awareness of a further option of sexual
identity beyond the male/female distinction. Yet, the price for this
recognition was to stick together the surgical intervention with the transexual
identity, thus paving the way for a legal recognition of transexuality in terms
of physical/surgical change of the sexual apparatus.
As we will see in the next section, the
“sociomedical construction” of transexualism as a disease whose only cure was
represented by the sex reassignment surgery had heavy implications on the
legislation and the rights associated to the possibility of changing sex.
4. Transgender
Rights, Legal Decisions and the Evolution of Norms of Identity
In 1989 in Europe, a recommendation of the Assemblée
Parlamentaire of the European Council (recommendation n. 1117)[16]
invited the member states to develop a legal framework to treat these cases.
The recommendation recognizes transexuals as people who have a “double
personality” (without any mention of a mental illness) in which their physical sex
doesn’t correspond to their psychical one, thus endorsing a classical theory of
gender-identity in which sex determines gender. It is then stated that “Thanks
to the advancement of medical research and to the possibility of surgical
intervention for sex reassignment” the condition of transexual people can be
improved. Finally, it encourages the member states to allow for the change of
sex at the physical level and at the legal level. Even if a clear-cut causal or
normative link between the medical sex-reassignement and the legal
sex-reassignement is not stated, the recommendation clearly reads as the two
were closely related. It is the existence of a medical technique of sex
reassignment that makes the legal sex reassignment possible.
The legal endorsement of the member states of the
recommendation has been different in each state. Sweden, Italy, Germany, Belgium and Turkey have promulgated
laws about the conditions of sex-reassignment. Two states, Andorra and Hungary,
do not allow sex reassignment surgery. Other states, like Great-Britain, have
adopted a pragmatic stance, that is, a case by case strategy, although specific
legal measures have been taken to avoid discriminations of transexual people at
work, through a 1999 regulation on gender reassignment.[17] As for the
extension of legal rights to people who have
undergone sex-reassignment, the British governmental policy recognizes the
following rights:
“Once
they are living permanently in their acquired gender, most transsexual people
want their official documentation to reflect their new gender identity. They
may obtain some official documents (including passports, National Insurance
cards and driving licences) in their new name and gender, and the Department
for Work and Pensions will make special arrangements for handling their records
sensitively. Many private companies too have special arrangements for
transsexual people. They are not currently entitled, however, to have their
birth certificates revised, nor to enjoy any rights legally confined to persons
of the gender to which they feel they belong. They cannot marry in their
acquired gender, nor draw the State pension at the age appropriate to that
gender”.
However,
after the judgments of the European Court of Human Rights in Goodwin -vs UK,
delivered on 11 July 2002, Great-Britain has simplified the procedures for the
legal sex-reassignment. A Gender Recognition Panel, composed by a
medical as well as a legal staff, is now enough to deliver a certificate of
recognition of the new sex.
Spain
has promulgated a law in 2007 that doesn’t require anymore the sex-reassignment
surgery in order to ask for legal gender reassignment. In general, the most
advanced policies in this matter have simplified the administrative procedures
to obtain the legal gender reassignment and relaxed the medical criteria to
recognize to the person the need of reassignment.
It
is interesting to notice that in many legal literature, having gone through an
operation of sex reassignment was seen not only as a pre-condition for asking
legal reassignment, but also as a “sign” of commitment of the person, given the
sufferings and the efforts of the operation: “The
United Kingdom national health service, in common with the vast majority of
Contracting States, acknowledges the existence of the condition and provides or
permits treatment, including irreversible surgery. The medical and surgical
acts which in this case rendered the gender re-assignment possible were indeed
carried out under the supervision of the national health authorities. Nor,
given the numerous and painful interventions involved in such surgery and the
level of commitment and conviction required to achieve a change in social
gender role, can it be suggested that there is anything arbitrary or capricious
in the decision taken by a person to undergo gender re-assignment. In those
circumstances, the ongoing scientific and medical debate as to the exact causes
of the condition is of diminished relevance”.[18]
In France also, there is no substantial
legislation on gender reassignment, and a case by case policy is encouraged by
the government. In 1992, the European Court of Human Rights condemned France in
the case B. Vs. France for violation of the article 8 of the European
Convention of Human Rights (concerning the rights to the respect of private
life). Miss B appealed to the court after having being denied gender
reassignment, even if she had undergone an operation, on the basis of the conclusion of the judges that a person
having acquired the physical “appearances” of the other sex cannot be
considered of that sex if he or she lacks some fundamental characteristics of
that sex: in this case, the “fundamental characteristic” was reproduction:
being recognized as a woman would imply, for that judge, to be able to make children!
Although the
first surgery of sex reassignment in Brazil was performed in 1971, that is,
during the hardest years of the dictatorship, it was only after the first
Federal Constitution promulgated in 1988 that discriminations on the basis of
sexual behavior started to be sanctioned. The first article of the new
Brazilian constitution affirms the dignity of the human person as the
foundation of a democratic state based on rights and the third article states
that the objective of the democratic state is “to promote the well being of
everybody without prejudices of origin, race, sex or color”. The Brazilian
Federal Medical Council allowed the sex reassignment surgery in 1997 (resolução
n°1.482/97) and extended the conditions and criteria in 2002. In 2008, the
Ministry of Health institutionalized a processo transexualisador and
acknowledged the right of performing sex-reassignment surgeries in public
health structures. By doing this, the Ministry of Health, was acknowledging a
conception of health as a transdisciplinary notion, well beyond the narrow
sense of “absence of infermity” and involving a societal dimension of recognition
of one’s own personal identity. Sexual orientation and gender identity were
thus considered as fundamental elements of health, as a general well-being that
involves conditions of respect and expression of one’s identity and
personality.
It is
important to notice that it was in the name of the respect of identity as a
condition of well-being that rights to sex reassignment were expanded, and not
in the name of the medical condition of “transexuality” as a precise disease.
Newcomers in terms of rights and health rights, such as Brazil, which has a
fairly recent constitution and healthcare system, have avoided the ambiguities
of older legislations in which the medical condition of the transexual as a
pathology was a crucial element in the determination of the rights to perform
the operation. Since 1997, the surgery has been considered “ethical” in order
to provide healthcare to transexual patients that cannot live a life within a
sexual determination that doesn’t correspond to their actual sexual identity.
As in most
countries, Brazil has established a series of procedures to accord the right of
sex reassignment surgery. Candidates must be under observation for two years by
a multidisciplinary team of psychiatrists, legal experts, surgeons, social
workers, etc. They must be 21 years old and not showing other conditions that
may conflict with a surgical intervention. As we have seen, these criteria,
with some variations, are present in all countries that accept the sex
reassignment surgery.
Yet, some
recent decision have acknowledged legal sex reassignment and change of name in absence of any
surgery:
Ementa: APELAÇÃO. RETIFICAÇÃO DE REGISTRO CIVIL. TRANSEXUALISMO.
TRAVESTISMO. ALTERAÇÃO DE PRENOME INDEPENDENTEMENTE DA REALIZAÇÃO DE CIRURGIA
DE TRANSGENITALIZAÇÃO. DIREITO À IDENTIDADE PESSOAL E À DIGNIDADE. A
demonstração de que as características físicas e psíquicas do indivíduo, que se
apresenta como mulher, não estão em conformidade com as características que o
seu nome masculino representa coletiva e individualmente são suficientes para
determinar a sua alteração. A distinção entre transexualidade e travestismo não
é requisito para a efetivação do direito à dignidade. Tais fatos autorizam,
mesmo sem a realização da cirurgia de transgenitalização, a retificação do nome
da requerente para conformá-lo com a sua identidade social. DERAM PROVIMENTO.
(Apelação Cível Nº 70030504070, Oitava Câmara Cível, Tribunal de Justiça do RS,
Relator: Rui Portanova, Julgado em 29/10/2009)
This goes
with the tendency of many countries around the world (as we have seen Spain,
for example, in Europe) to overcome the rigid OMS interpretation of
transexualism as an infirmity that must be surgically treated and that
integrate a broader notion of gender identity that comes from the debates we
mentioned at the beginning of this paper. Here is another decision in this
direction:
Ementa: APELAÇÃO CÍVEL. TRANSEXUALISMO.RETIFICAÇÃO DE REGISTRO
CIVIL. NOME E SEXO. É possível a alteração do registro de nascimento
relativamente ao sexo e ao nome em virtude da realização da cirurgia de
redesignação sexual. Vedação de extração de certidões referentes à situação
anterior do requerente, sob pena de discriminação. RECURSO IMPROVIDO. (Apelação
Cível Nº 70028694479, Oitava Câmara Cível, Tribunal de Justiça do RS, Relator:
Claudir Fidelis Faccenda, Julgado em 28/05/2009)
That is, a
country such as Brazil, with a past of hard sexual discriminations, that has
adopted a democratic constitution only in 1988 is more easily integrating a
view of the rights of expression of gender identity as “rights of persons” than
as “rights of patients”.
The same can
be said of the recent approval (2012) in Argentine of a legislation proposed in
2011 of “rights for gender identity” that allows citizen to freely change their
gender identity without any need of surgical intervention or any diagnosis by
teams of specialists:
Gender
Identity Law
Article 1 –
Right to gender identity. All persons have the right,
a) To the
recognition of their gender identity;
b) To the
free development of their person according to their gender
identity;
c) To be
treated according to their gender identity and, particularly, to
be
identified in that way in the documents proving their identity in
terms of the
first name/s, image and sex recorded there.
Article
2 – Definition. Gender identity is understood as the
internal and
individual
way in which gender is perceived by persons, that can correspond
or not to
the gender assigned at birth, including the personal experience of the
body. This can
involve modifying bodily appearance or functions through
pharmacological,
surgical or other means, provided it is freely chosen. It also
includes
other expressions of gender such as dress, ways of speaking and
gestures.
Article
3 – Exercise. All persons can request that the
recorded sex be
amended,
along with the changes in first name and image, whenever they do
not agree
with the self-perceived gender identity.
Article 4 –
Requirements. All persons requesting that their recorded sex be
amended and
their first name and images changed invoking the current law,
must comply
with the following requirements:
1. Prove
that they have reached the minimum age of eighteen (18) years,
with the
exception established in Article 5 of the current law.
2. To submit
to the National Bureau of Vital Statistics or their
corresponding
district offices, a request stating that they fall under the
protection
of the current law and requesting the amendment of their
birth
certificate in the records and a new national identity card, with
the same
number as the original one.
3. To
provide the new first name with which they want to be registered.
In no case
will it be needed to prove that a surgical procedure for total or
partial
genital reassignment, hormonal therapies or any other psychological or medical
treatment has taken place.
5. Conclusions
Footnotes
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