Choosing our own gender without surgery – this cannot be serious
Published:
July 1, 2012 at 6:41pm
In The Times, yesterday:
The MGRM coordinator also hoped for the Gender Identity Bill to start taking form so as to allow transgender persons to change their name and gender without the need undergo sex reassignment surgery.
“This will mean the change will not simply be a cosmetic exercise, but effective recognition of each individual’s right to determine their own gender and to have this recognised by the state in all spheres of life,” Calleja said.
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Yes please as from midnight I will be Adriana. And I am a female even though I have the body of a man. These people are doing a great disservice to the LGBT community because they cannot be serious.
What if somebody poses to be the opposite sex for some other motive?
It is actually a serious human rights issue since forcing someone to undergo surgery in order to have their gender recognized is a violation of their right to physical integrity. The backing for this argument can be found in an Issue Paper by Thomas Hammarberg, Council of Europe Commissioner for Human Rights the relevant section of which I am reproducing below should anyone wish to be more informed.
https://wcd.coe.int/ViewDoc.jsp?id=1476365#P108_22710
3.2 Legal recognition of the preferred gender
Article 8 of the European Convention states that ‘‘everyone has the right to respect for his private and family life, his home and his correspondence’’. The European Court of Human Rights has ruled that failure of a state to alter the birth certificate of a person to the preferred gender constitutes a violation of Article 8 of the Convention.21 Member states are thus required to legally recognise the gender change of transsexual persons.
A common feature of most gender recognition procedures, if in place at all, is the combination of cumbersome legal and medical requirements, the borderlines of which are often blurred. Lengthy processes of psychological, psychiatric and physical tests are characteristic features of such procedures. Some, like genital examinations by psychiatrists, amount to non-respect of the physical integrity of the person. Often transgender people choose not to enter the official procedures at all due to discriminatory medical processes and inappropriate treatment, or due to the fact that only one course of treatment is available. They are then, in turn, denied legal recognition of their preferred gender and name, or gender reassignment treatment that fits their own wishes and personal health needs. Despite ample case law from the European Court of Human Rights in favour of recognition, legal recognition remains a challenging process for many transgender persons in the Council of Europe member states.
3.2.1 Conditions for the change of sex and name
Access to procedures to change one’s sex and one’s first name in identity documents is vital for a transgender person to live in accordance with one’s preferred gender identity. Indeed, the ability to live in the preferred gender and be legally recognised as such is preconditioned by identity papers that are used to conduct everyday life, for example when using a health insurance card, a driving licence or an educational certificate during a job application process. The often lengthy and bureaucratic processes for the recognition of sex and name change result in the inability to travel with valid documents, even to visit relatives in a neighbouring country for a weekend. It could also lead to restrictions on participation in education or employment wherever birth certificates are necessary or sex is indicated on national identity cards. It can mean that transgender people without the correct documentation are effectively hindered from meaningful participation in the labour market, leading to unemployment.
There is a need to distinguish between procedures for the change of first name and those for the change of sex. However, both processes frequently require that the individual concerned must first be considered eligible for the procedure by the medical profession.
It should be stressed that the eligibility conditions for the change of sex in documents vary widely across Europe. It is possible to roughly distinguish three categories of countries. In the first category, no provision at all is made for official recognition. As pointed out above, this is in clear breach of established jurisprudence of the ECtHR.22 In the second and smaller category of countries, there is no requirement to undergo hormonal treatment or surgery of any kind in order to obtain official recognition of the preferred gender. Legal gender recognition is possible by bringing evidence of gender dysphoria23 before a competent authority, such as experts from the Ministry of Health (in Hungary), the Gender Reassignment Panel (in the UK) or a doctor or clinical psychologist. In the third category of countries, comprising most Council of Europe member states, the individual has to demonstrate:
1. that (s)he has followed a medically supervised process of gender reassignment – often restricted to certain state appointed doctors or institutions;
2. that (s)he has been rendered surgically irreversibly infertile (sterilisation), and/or
3. that (s)he has undergone other medical procedures, such as hormonal treatment.24
Such requirements clearly run counter to the respect for the physical integrity of the person. To require sterilisation or other surgery as a prerequisite to enjoy legal recognition of one’s preferred gender ignores the fact that while such operations are often desired by transgender persons, this is not always the case. Moreover, surgery of this type is not always medically possible, available, or affordable without health insurance funding. The treatment may not be in accordance with the wishes and needs of the patient, nor prescribed by his/her medical specialist. Yet the legal recognition of the person’s preferred gender identity is rendered impossible without these treatments, putting the transgender person in a limbo without any apparent exit. It is of great concern that transgender people appear to be the only group in Europe subject to legally prescribed, state-enforced sterilisation.
It needs to be noted that many transgender people, and probably most transsexual persons among them, choose to undergo this treatment, often including the elimination of procreative organs. The treatment is often desired as a basic necessity by this group. However, medical treatment must always be administered in the best interests of the individual and adjusted to her/his specific needs and situation. It is disproportionate for the state to prescribe treatment in a “one size fits all” manner. The basic human rights concern here is to what extent such a strong interference by the state in the private lives of individuals can be justified and whether sterilisation or other medical interventions are required to classify someone as being of the one sex or the other.
Two important national court rulings support this view. On 27 February 2009, the Austrian Administrative High Court ruled that mandatory surgery was not a prerequisite for gender (and name) change.25 A transgender woman, who underwent all changes apart from the genital surgery and lived as a woman in all social relations, could establish to the court that her particular employment situation would not be conducive to the several months’ sick leave needed for the operation and that she could not leave her family financially uncared for. This led the court to point out that the legislator had to abolish the original requirement since the court was not able to establish any need for this specific requirement pertaining to transsexual women. In Germany, the Federal Supreme Court has indicated in a judgment that “an operative intervention as a precondition for the change of gender is increasingly regarded as problematic or no longer tenable among experts”.26
The key point here is that there is no inherent need to enforce one set of specific surgical measures for the classification of an individual to be eligible for changing sex. Similar reasoning lies behind the Spanish Ley de Identidad de Género and the British Gender Recognition Act.27 Both laws have recognised that the protection of the majority’s assumed unease with the procreation of transgender people – which is, due to hormonal treatment and the wishes of most concerned individuals, extremely rare – does not justify a state’s disregard of their obligation to safeguard every individual’s physical integrity. States which impose intrusive physical procedures on transgender persons effectively undermine their right to found a family.
Regarding conditions to be eligible for the change of first name, there is a similar pattern to some of the procedures for change of gender described above. The process can be easy or require lengthy and/or costly procedures and medical interventions, or it can be denied entirely. In some countries names can only be changed upon medical testimony that the (full) gender reassignment has taken place, including genital surgeries which are not accessible or wished for by persons for a number of different reasons. In other countries such proof is not necessary but instead, or in addition, people need to have a gender dysphoria diagnosis and two years of hormonal treatment to qualify for the name change. As a consequence, transgender people are, for a long period in their lives, effectively barred from meaningful and full participation in society, education or employment as they may face continuous problems with ‘justifying’ who they are. The Commissioner’s Office has received numerous individual reports of transgender persons who, as a result of lack of proper documents, report discrimination and exclusion to a worrying extent. It’s also crucial to note that, even when a person has obtained a legal recognition of the new gender, the person may still face practical problems within institutional settings such as hospitals, police stations and prisons.
Let’s get this straight (excuse the pun), if one is born with dingle-dangles, then one is a male at birth, and remains so, and a BIRTH certificate records the fact.
No amount of dressing or acting like a man makes one a man, in much the same way as having a “boob job” makes one any more a woman than one is/was prior to the operation.
One may change one’s sex physically, but one still cannot alter the sex one was physically born as.
My goodness, educate yourself Sarah.
Sarah, although I can see your reasoning may I just add a few details which you do not include.
What about people whose gender is not that clear cut? what should go down on the birth certificate and should it remain with that persons life regardless of how they mature as an adult?
Also, those who wish to undergo surgery do so not on a whim. No one would want to go ahead with it unless it is something they need. It s not a case of someone randomly wanting to be out down as male when they are female.
You must take the context into consideration, with all it s details and exceptions before commenting on it because then you exclude people who really do benefit from these reforms.
Actually, should the state or anyone else record one’s gender at all?
Since there is (supposed to be) equality between the sexes, why should it be important for anyone to record anybody’s gender?
@Ms Calleja
I suppose that if it was up to you , you would abolish the Ladies and Gents toilets and insist on a unisex one – in the name of ‘serious human rights ‘.
The very idea is revolting.
And why is it revolting? We’re all human, and it’s not like public toilets don’t have walls around each stall?
If we are going to be so demanding on our rights to which the state has to subscribe to even where it concerns personal registration data which defines an individual (like gender), can I have the right to change my ID number and my date of birth because according to my beliefs these numbers are omens of bad luck?
I hate it when people are facetious. You can certainly change your name, so what is special about asserting your gender?
The issue is a very complex one based on how one sees oneself and how one wants/needs to be seen by others.
Why does the state need physical proof (even if it is artificial proof created by the hand of the plastic surgeon) to accept that one’s gender is not necessarily what one is born with and what one sees on the outside?
Think about it. Must they submit themselves to often painful and intrusive surgery just to proffer tangible proof to the state that they are what they are?
[Daphne – Oh God, please don’t be ridiculous. The state deals in biological facts, not opinions. If you are biologically a woman, then that is what the state is bound to record. The only exception is when there is a sex-change, which does not change the biological fact (it is our chromosones, not our appendages, that identify us biologically as male or female) but changes the appendages. Even so, it is complicated. A man who has undergone a sex change and who has changed his identity papers will be identified as a man, not a woman, when remains are tested in, say, an air crash.]
In that case, can I declare to be 20 years old for the rest of my life? The state shouldn’t interfere with my age.
I think this is where some members of the LGBT community start to err – when they ask for ridiculous laws to be passed. Facts are facts, they can’t be changed.
Besides, can you imagine the confusion and embarrassment for all involved? “So Mr. Scicluna, how can I help you today?” “Er, it’s Ms. Scicluna if you don’t mind.” “…..”
Ah well, in for a penny, in for a pound, I shall go ahead and dig deeper into being ridiculous.
I agree that the state records facts. So age is a fact. However what I tried to point out is that gender attribution is more closely connected to identity then crude biology.
[Daphne – It is not. The state does not record feelings. It records facts. When all is said and done, and notwithstanding sex change operations, life as a transgender person, etc, when the remains of a body are tested the result will be the biological fact of what you were born as.]
I’d rather leave the whole chromosome/gene argument aside as it is very shifty ground either way.
[Daphne – It isn’t. It is cast-iron fact that some people would like to ignore: that transgender operations are really just window-dressing. The person remains biologically a man or biologically a woman.]
In my defence I will say that there is a long tradition of the Third Sex in many of our oldest civilisations, whether in the far east (India, Thailand) or the west (The American Indians often attributed magical powers to the ‘Two Spirits’).
So no, I don’t agree that this is a question of facts but a state of being which the state can recognise as much as it can recognise a state of marriage. And with that I will bumble of to be ridiculous in another corner of this island.
Well I said that i didn’t want to go down the route of biological ‘facts’, but if you insist.
There are whole reams of studies which are looking at the possible connection between biology and sexuality. http://en.wikipedia.org/wiki/Biology_and_sexual_orientation
[Daphne – Sexuality and gender are different things. I’m talking about gender, which is determined by chromosones and is unambiguously male or unambiguously female.]
I did not want to go down this route because it is all still somewhat nebulous (and possibly utter bunkum).
However I don’t think it is safe to reason that “when the remains of a body are tested the result will be the biological fact of what you were born as” because we still may not know what we should be looking for. The science in this area is still relatively crude. And that too, I suppose, is a ‘fact’.
[Daphne – Of course testing of remains reveals whether the body was male or female. And this regardless of what’s specified on that person’s passport.]
As to being biologically identified as ‘male ‘or ‘female’ can it not be surmised that what we have here is the crude biological equivalent of red and blue. That we have compartmentalised the findings to provide only one of two solutions.
And that is the crux of the problem: the tension created by, on the one hand the needs of the State to pigeon hole everyone and everything in satisfactory compartimentilised fashion and the desire of today’s society to allow the individual to express themselves fully .
Unfortunately, as to often happens, the discussion is reduced to a few cheap laughs and we talk of men who are cikkulata and women who are mara-ragel. Oh well. Ho-hum
I know of one particular case where a male child who still appears to be of kindergarten age to has, over the past few months “morphed” into the opposite sex, complete with clothing-change and name-change to match, obviously with his/her parents’ endorsement.
I would hate to be in their position, and feel for both them and the child concerned, but hope to think that I would not encourage “cross-dressing” and name change at such a tender age, where children do tend to go through different phases and play with toys traditionallly used by the opposite sex.
Here is one similar case, which drew lots of attention, even in what I think is a more liberal society than ours. http://www.dailymail.co.uk/news/article-2089474/Beck-Laxton-Kieran-Cooper-reveal-sex-gender-neutral-child-Sasha.html
So Usain Borg, a successful, 26 year old, 6’5″ Maltese athlete, chooses the female gender – because he has a right to. No sex op or anything, just a rekors at court and then changes his ID card, etc. Now tell me, would s/he be allowed to run the 100m with the women?
So, according the the MGRM coordinator, a man can decide to be registered as a woman and will have to be legally recognised as such.
This man-legally-a-woman will then have every right to compete in women’s sports events, without even trying to pretend he’s female.
Ms Calleja sees nothing strange in this.
I feel that I am a person trapped in a footballer’s body. Ergo, I am Mario Balotelli, and the state should recognize me as such. Anything less goes against my fundamental human rights.
Kolha ksuhat dawn.
Ms Calleja’s comment here is living evidence of how this year the silly season is even sillier than usual.
Is His Majesty posing as Her Majesty this week?
Sorry Ms Calleja but gender is physical fact, not a choice.
You are born physically male or female and your paperwork records this historical fact.
This is why I also find changing gender on birth certificates, even after the person has undergone reassignment surgery, as being ridiculous. By all means, if desired, changing what it is recorded as “at present” is acceptable – i.e. on identity cards, etc – but amending a birth certificate is nothing but rewriting history – impossible.
Now to suggest that someone who is physically male or female should be allowed to identify themselves as belonging to the opposite sex is just as ludicrous as myself insisting on being identified as a black rapper, with a photo to match on my identity card, just because I feel that that reflects my persona better than the palefaced reality that I am. Chaos ensues.
Transsexual people don’t generally just “feel like the opposite gender fits them better”. Think of it more as something that’s screamed at you in your head for as long as you can remember. You’ve always known that you’re physically wrong but you’re trapped and you can’t do much about it.
You know what, just try being transsexual and then come back and make that comment again. If only you could.