Archives of Sexual Behavior, Vol. 1, No. 2, 1971
Legal Aspects of Transsexualism 1 D a v i d Green, LL.B2
The nature of a lawyer's training renders him one of the least probable people to be of assistance whatever in matters which are properly the concern of specialists in behaviorist study. The lawyer is educated to a strictly deterministic concept of human behavior and operates in a sphere where human behavior is evaluated on the basis of absolute personal responsibility, guilt, and right and wrong. These attitudes have bedeviled society's treatment of those who depart from what we hoped might be called the norm. To describe how my own involvement in this field came about, essentially it crystallized out of general work on family law and other problems of this sort, and it came to a point in 1963 when the hospital in Manchester required some lawyer to regard with some measure of understanding the problem of the patients with whom they were dealing. This, I suppose, is the source of such knowledge as I have. As I understand the position, the hospital at that time was seeking to assist transsexuals in particular to adapt to the lives of the gender with which they chose to identify, with hormonal treatment and psychosocial support. Patients usually came to me at the state--and still come for that matter--when they were regularly wearing the clothes and adopting the characteristics of the gender with which they identify. Almost universally the first function that I perform for them is to complete a deed poll in their adopted male or female name so that they may then obtain male or female national insurance cards and other documentation as a prelude to taking women's or men's jobs. In English law, one of the few freely disposable pieces of property that you still have is your own name. You may, in fact, call yourself what you will. The deed poll, or the statutory declaration if it is entered into, is merely a means of evidencing the decision which you have reached, by usually a simple document. From then on, I have been more or less on the receiving end of residual problems. A high proportion of the individuals who have to come to me first of all for change of name have wanted to change their birth certificates to correspond with this change of name, and with the adaptation of sex which is apparent from the deed poll. I have never directly been involved in any such case, although I understand that certain This paper was presented at the First International Congress on Gender Identity, London, England, July 1969, sponsored by the Erickson Educational Foundation, Baton Rouge, Louisiana, U.S.A., and the Albany Trust, London, England. 2 Messrs. George Davies & Company, Manchester, England. 145
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individuals have been able to persuade the Registrar of Births to change the birth certificate itself. I gather that this has to be accompanied by a declaration from a doctor to the effect that a mistake was made on initial registration, and this, in terms of what the courts or anybody else might regard as a mistake, is a very difficult question. Whether one could persuade courts to accept that psychosocial sex was a different thing from physiological sex, whether one could persuade a court to accept that one was justified in giving a certificate in these circumstances, I do not know. Again, clients seek advice as to whether they can subsequently marry after adopting their gender. I think that the only circumstances in which this would be safe, and avoid the question of prosecution for giving a false declaration in support of the application for marriage, would be where there was a preexisting birth certificate recording the change itself. I think really the question of lawful marriage takes you back to the question of whether or not a reissued birth certificate can be obtained. Again, I don't know of any situation where any birth certificate as such has been contested. On occasions, individuals come to me and tell me that they are aware that they are under observation by the police. This always creates difficulties, because the police, more than lawyers, have a large hole in their education as far as behavior problems are concerned. In my own experience, conversation with senior police officers, certainly about a transsexual situation, can do a great deal to relieve the pressure on an individual who is under observation. There is no specific provision made in law for the transsexual situation or anything analogous to it. When it comes to the question of divorce, until such time as the bill at present before Parliament goes through, one therefore must rely almost invariably on adultery, cruelty, or desertion. Very rarely in my experience is a transsexual either able or willing to petition himself. All too often the choice rests with the normal spouse. Sometimes the marriage dies peacefully after 3 years of desertion, and sometimes it and I suspect the parties are torn apart by scarifying accusations of cruelty. It is not hard to make a very good story out of transsexualism to a tribunal which is accustomed to evaluate human conduct by the standards of the reasonable man and the man on the Clapham omnibus. In common sense, a marriage which is a result of adaptation subsequent to marriage is unacceptable to either party, which consists to all extents and purposes of two men married to each other, or two women, and ought to be capable of being annulled. Problems can also arise among the ancillaries to the marriage breakdown. One may have a situation where the transsexual male has left his wife, she obtains a maintenance order against him for desertion, and he subsequently adapts to a female role. One ends up for all practical purposes with one woman obliged to maintain another. We do have provision in law for variations of maintenance orders where the husband's circumstances have changed. I can hardly imagine any more profound change. But the fact remains that this is a matter of variation more than a matter of extinguishment. The only case I have so far had in this category was solved by consent because the clerk to the justices where the wife had obtained the order was sufficiently understanding of the situation, once it was explained to him, to call the wife and explain it to her; and she in turn with considerable understanding agreed to a variation
Legal Aspects of Transsexualism
147
to nominal amount. But there is no way of getting rid of the maintenance order as such. Then, of course, one runs into the field of crime as well. Transsexuals may get into trouble as far as criminal law is concerned in two fairly distinct ways. First, as a direct consequence of his condition, he may be prosecuted for importuning or some similar offense, and second, indirectly, because of his condition he may get involved in other offenses, of which shoplifting is undoubtedly the most frequent. In the first category, the importuning sort of case, the lawyer carries a very heavy responsibility to ensure that the defendant, if he wishes to plead guilty (as many of them do to get rid of the thing), is in fact guilty as charged--because society in general and the police in particular are highly suspicious of the transsexual if they have no other information. There seems to be a widely held belief, for example, that the only reason why a man should dress in women's clothes is in order to obtain access to ladies' lavatories or other privy places. In one case where the transsexual was in fact waiting for friends who were in the gentlemen's lavatories, the main evidence was that the defendant was smiling at men when they came out. The essence of the case was really whether the defendant was waiting for somebody she knew or was trying to pick up somebody she did not know. Fortunately, the court took the former view and acquitted her, and they also agreed with me that smiling was not yet a criminal offense in England. The second category presents real problems. This is where the individual is involved in extraneous or apparently extraneous criminal activity, in criminal fields. I accept, as I am told, that there is nothing inherent in transsexualism which turns an individual to criminal activity. Yet I am aware that a number of transsexuals, prior to receiving any help and while in a state of total personal conflict, particularly the poorer ones, resort to shoplifting, mainly for women's clothes in the case of men. The law is silent insofar as any positive description of dress is concerned, and as one walks around London that is probably fortunate for a lot of heterosexuals as well. But dress is negatively determined by offenses of indecent exposure, acts to insult females, and so on. The transsexual who adopts the dress of the gender with which he identifies should have nothing to fear from the law as it is stated, if he otherwise conducts himself with moderation. But the big trouble is, and this may perhaps be a slightly artificial distinction, that he may have something to fear from the administrators of the law, and must be aware that he is particularly susceptible to suspicion from the police. Actions which in a heterosexual may be regarded as utterly unconsequential may render a transsexual suspect. In this he is vulnerable to the area of what you might call "nonspecific criminal charges"--conduct likely to create breach of the peace, insulting behavior, and hazards in the form of little-known provisions in local by-laws and statuteS, which were often enacted long ago to deal with a broad spectrum of problems then identified with vagrancy. Concerning the vulnerability of a doctor to prosecution for performing surgery of a transsexual nature, I would think it important that one should never rely on the consent of a minor, and never rely on the consent of his parents, even if all of them are in it together. But even then consent is not necessarily sufficient in law. It has long been estab-
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lished that one may consent to minor assaults, and injuries sustained in lawful sporting activities are never actionable in civil or criminal law for this reason. It is also established that a qualified person may deliver grievous assaults on an individual, such as a surgical operation, where it is a matter of necessity for the health of the individual. But no one may consent to physical damage in the grievous bodily harm category, for which there is no necessity. Hence the prosecution in times past of willing participants in illegal prizefighting. And in the extreme, of course, one may never consent to one's own murder. The problem therefore revolves upon the medical necessity of the operation. In practice, I am firmly of the opinion that in England a qualified person who carried out cosmetic surgery on a transsexual competent to give consent, who had given that consent, would have nothing to fear from the law provided that he could establish the operation was done for sound medical reasons. I think here the analogy with the history of abortion prior to the 1967 act, a subject that was charged with a great deal of emotion because of the unborn child element, where the courts firmly held that the operation was lawful if carried out in good faith to preserve the life or the physical or mental health of the woman, is a fair analogy. I think in terms of criminal law there is no great anxiety Now, finally, on the question of criminal liability for surgery, I would mention a case of which I have knowledge, where a patient was admitted to hospital after a prostitute had at his request amputated his sexual organs in totality with a cutthroat razor. He recovered and was discharged apparently happy at the outcome. In that case the police did not take the matter further when he refused to press charges against the prostitute, although I have little doubt that she would have been indicted if he had died, and because of the risks I myself feel that she should have been charged in any event. Quite clearly, there is even in the police forces a misunderstanding as to the extent to which consent of the injured person immunizes the person to criminal prosecution subsequently. This, I suppose, is the sort of damage which transsexuals can do to themselves, in the ultimate extreme, if they do not get help Although awareness of transsexualism and other problems is spreading in the courts, and with rapidity, I believe, in the city courts of summary jurisdiction, the problem in all criminal cases of trying to make sense between two mutually uncomprehending sets of people, of circumstances which one is set up and elevated to condemn, is the more difficult in the light of what the court may regard as the abnormality of the individual. To an extent, it seems to me that human curiosity helps here because most people have heard of sex change cases and are particularly attentive when they come across them. Also, once explained, people seem to regard the transsexual with far greater sympathy than perhaps the homosexual, perhaps because the instinctive feeling is to regard the person who changes as more honest than somebody who seems to masquerade as a normal. In all cases when one is dealing with pleas of guilty, it seems to me to be essential for the advocate to try to act as interpreter between the accused and the court, and to enable it to understand, for instance, in the shoplifting cases, something of what it must be like to live an existence as an outlaw where one is relegated to the company, and all it entails, of other outlaws from society. It may very well be that in the metropolitan area there are civilized organizations to cope with the
Legal Aspects of Transsexualism
149
problems of transsexuals and other deviates. I can assure you that in the provincial towns there is very little if any reliable social structure for them at all, and if they wish a social existence then it is the outlaw element to which they must go, or forego social existence whatever. That so many transsexuals manage to survive the hazards of blackmail, emotional or otherwise, and still remain civilized and law-abiding people never ceases to astonish me in this sort of situation. The final part of what I have to say--and from my point of view the most dangerous part of what I have to say--derives from the very considerable problems which an advocate who is unqualified in any medical sense faces in enabling a court to understand, often in a very limited time and usually without expert assistance, problems such as transsexualism which are frequently outside the experience of the court altogether. One may suggest to a court that the human brain may essentially be an instrument which copes with all problems by evaluating on a logical basis current information and problems against data and information stored f r o m the past. Taken thus far, it may feel willing to accept as feasible that our highly complex uses of memory and evaluation of problems, our feelings and emotions, may be no more than a highly complicated replay in the appropriate sense organs of past acquired and remembered sensations. Within such a framework, it may be possible for a court to make some logic of the emphasis that most psychiatrists place on early childhood, something that most laymen find very difficult to accept. Moving from the general to the particular, in applying these sorts of ideas to the problem of the transsexual, the first instinct of the courts, whether one deals with it on this basis or not, is to inquire whether the condition is the result of some detectable physical irregularity. Here, as I understand the position, there is no detectable biological or physiological cause for the condition. This is the sort of information which without more might well lead a court to react on the assumption of "all is well n o w - We will now deal with you on the basis that your own behavior is entirely the result of your deliberate act." But if one has predicted the possibility of dual causes of disorders, it is reasonable to suggest that the possibility remains that the unusual reactions of the individual genuinely, as I would have to put it in court, "result from past acquired experiences." Occasionally, when no other help is available at all, one has no choice, if one is to try to assist a client, but to try to find on one's own some route which will enablethe court to understand what he has done. And in these sorts of circumstances, with transsexuals and with homosexuals, I have done my best and it can only be an inadequate best, to inquire. Insofar as any pattern has emerged from these inquiries, the pattern of the background of the transsexual's family has been one where the dominant personality was female in the case of the male transsexual, or male in the case of the female transsexual, and where the imbalance was an extremely violent one. In addition, the male transsexual may have had no father or the father may have been an entirely negative character. He may sometimes say at least that he has been brought up as a girl. In some cases, low intelligence seems to have aggravated his difficulty in coping with the male role.
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If one can have this sort of information available to a court, and if one can obtain acceptance by the court that environmental conditions may have a direct relationship between current disorders and past events, it is possible I think, by producing this sort of pattern as a history, to enable the court to understand that there may well be a relationship between the environment in which the subject was brought up and his subsequent behavior. And that in fact the way this individual feels is the product of circumstances which are beyond his control altogether. If, for example, a court is about to decide that a male transsexual should go to prison, it is absolutely essential that it should understand the consequences to that individual of being sent to a men's prison where the first administrative act inevitably is to deprive the individual of any semblance of female existence whatever. Very frequently I am asked in court whether transsexuals cannot be treated so as to make them normal. There seems to be immense faith in what the medical and other professions can achieve outside the court, which often seems to regard the prospect of a cure as of the utmost simplicity, dependent only on the willing cooperation of the individual. Here the only method of treatment that I know of that has ever been applied in this area of problems is the question of aversion therapy, which I do not think is relevant, particularly to transsexuals in any event. Aversion therapy seems to commend itself to the courts in some ways, and it may be because practically all our penal codes in the past until modern times have been crudely and sort of instinctively based on a sort of aversion therapy. But if one has gone through the intricate business of the individual's behavior being an immensely complicated replay of past sensations and what have you, even a court can usually see that anything as limited in its application as either prison or a more sophisticated form of aversion therapy is not going to be of much assistance. I can say this, that for whatever reasons, none of the transsexuals with whom I have been professionally involved on criminal cases have been sent to prison. By and large, they have, given some effort, received very, very fair treatment from the court, sometimes a lot fairer than a heterosexual would receive. But there is a great deal which still requires to be done. The law itself is ill. adapted to the problem, if adapted at all, in technical matters, and in many spheres the problem of presentation of the problem is almost as serious as the technical content of the law. It is for that reason that I have widely trespassed on other fields and wandered generally about. If nothing else you will know how dangerous it is to leave the lawyers with a problem in court and not to have available the necessary technical help. Question (Dr. John Randell, Charing Cross): My question is this: and I think Mr. Green did deal with it in part, but I would like a greater exposition of the subject: The question of psychic sex. Lots of our patients admit that they are anatomically and physiologically male when they wish to be female, but they claim that from birth or from an early age they have felt female. Sometimes, and I believe in the near future this will be put forward as a plea for recognition as a legal female, what chance does Mr. Green think that a patient who advances the plea of psychic sex has of obtaining a change in a birth certificate and being accepted in society and by the Registrar General as a person fit to marry a male ?
Legal Aspects of Transsexualism
151
Mr. Green: I presume here this will occur after physical adaption by surgery . . . . Well, I would sincerely hope, and again there is no precedent for what could happen, but I would sincerely hope that the position may be attacked in reverse. Not on the basis that these individuals feel themselves to be female and have done their best to look like a female, but on the basis of "what on earth is society going to do with such an individual shaped as he is now if we insist on calling him a male ?." There is no recognition of this problem at all. There is no provision in statute for it. Technically, if the law were to be correctly adapted to deal with this situation, it would mean literally legislation in Parliament, and any of us who have been involved with social legislation would know that we should be lucky to see it in our lifetimes. But the judges do try to make the thing a little more elastic-sided. And I would suspect that if this comes, as it may well do, on appeal, to the question of presentation to the court, the essential thing is going to be to show the courts photographs of the individuals and say "if we are to say, for whatever reason, that this individual has to be called a male, how do we explain this ?" As judges pride themselves on common sense above all things, I do not think that it is impossible that this situation could not be provided for in terms of case law. But I think that if one takes this on the basis of the physiological structure of the individual rather than on his history, where he felt female and therefore we made him as best a female as we could do, and if one says to the judges, "Well, for medical reasons we've got to this point, now are we to insist any longer that this individual should be registered as a male?" I think the judges would exercise common sense and say "no, there must clearly be a recorded change." And if for whatever reason the doctor certified that this change has taken place, it should be recognized as a matter of law. I'm expressing a pious hope because there is no authority, and only Parliament apart from the courts can provide it. Editor's note: Within a year of this presentation, a court in England ruled that a postoperative male-to-female transsexual was still in fact a male and declared a marriage between the individual and a male invalid.
D
Legal Aspects of Transsexualism 1 D a v i d Green, LL.B2
The nature of a lawyer's training renders him one of the least probable people to be of assistance whatever in matters which are properly the concern of specialists in behaviorist study. The lawyer is educated to a strictly deterministic concept of human behavior and operates in a sphere where human behavior is evaluated on the basis of absolute personal responsibility, guilt, and right and wrong. These attitudes have bedeviled society's treatment of those who depart from what we hoped might be called the norm. To describe how my own involvement in this field came about, essentially it crystallized out of general work on family law and other problems of this sort, and it came to a point in 1963 when the hospital in Manchester required some lawyer to regard with some measure of understanding the problem of the patients with whom they were dealing. This, I suppose, is the source of such knowledge as I have. As I understand the position, the hospital at that time was seeking to assist transsexuals in particular to adapt to the lives of the gender with which they chose to identify, with hormonal treatment and psychosocial support. Patients usually came to me at the state--and still come for that matter--when they were regularly wearing the clothes and adopting the characteristics of the gender with which they identify. Almost universally the first function that I perform for them is to complete a deed poll in their adopted male or female name so that they may then obtain male or female national insurance cards and other documentation as a prelude to taking women's or men's jobs. In English law, one of the few freely disposable pieces of property that you still have is your own name. You may, in fact, call yourself what you will. The deed poll, or the statutory declaration if it is entered into, is merely a means of evidencing the decision which you have reached, by usually a simple document. From then on, I have been more or less on the receiving end of residual problems. A high proportion of the individuals who have to come to me first of all for change of name have wanted to change their birth certificates to correspond with this change of name, and with the adaptation of sex which is apparent from the deed poll. I have never directly been involved in any such case, although I understand that certain This paper was presented at the First International Congress on Gender Identity, London, England, July 1969, sponsored by the Erickson Educational Foundation, Baton Rouge, Louisiana, U.S.A., and the Albany Trust, London, England. 2 Messrs. George Davies & Company, Manchester, England. 145
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individuals have been able to persuade the Registrar of Births to change the birth certificate itself. I gather that this has to be accompanied by a declaration from a doctor to the effect that a mistake was made on initial registration, and this, in terms of what the courts or anybody else might regard as a mistake, is a very difficult question. Whether one could persuade courts to accept that psychosocial sex was a different thing from physiological sex, whether one could persuade a court to accept that one was justified in giving a certificate in these circumstances, I do not know. Again, clients seek advice as to whether they can subsequently marry after adopting their gender. I think that the only circumstances in which this would be safe, and avoid the question of prosecution for giving a false declaration in support of the application for marriage, would be where there was a preexisting birth certificate recording the change itself. I think really the question of lawful marriage takes you back to the question of whether or not a reissued birth certificate can be obtained. Again, I don't know of any situation where any birth certificate as such has been contested. On occasions, individuals come to me and tell me that they are aware that they are under observation by the police. This always creates difficulties, because the police, more than lawyers, have a large hole in their education as far as behavior problems are concerned. In my own experience, conversation with senior police officers, certainly about a transsexual situation, can do a great deal to relieve the pressure on an individual who is under observation. There is no specific provision made in law for the transsexual situation or anything analogous to it. When it comes to the question of divorce, until such time as the bill at present before Parliament goes through, one therefore must rely almost invariably on adultery, cruelty, or desertion. Very rarely in my experience is a transsexual either able or willing to petition himself. All too often the choice rests with the normal spouse. Sometimes the marriage dies peacefully after 3 years of desertion, and sometimes it and I suspect the parties are torn apart by scarifying accusations of cruelty. It is not hard to make a very good story out of transsexualism to a tribunal which is accustomed to evaluate human conduct by the standards of the reasonable man and the man on the Clapham omnibus. In common sense, a marriage which is a result of adaptation subsequent to marriage is unacceptable to either party, which consists to all extents and purposes of two men married to each other, or two women, and ought to be capable of being annulled. Problems can also arise among the ancillaries to the marriage breakdown. One may have a situation where the transsexual male has left his wife, she obtains a maintenance order against him for desertion, and he subsequently adapts to a female role. One ends up for all practical purposes with one woman obliged to maintain another. We do have provision in law for variations of maintenance orders where the husband's circumstances have changed. I can hardly imagine any more profound change. But the fact remains that this is a matter of variation more than a matter of extinguishment. The only case I have so far had in this category was solved by consent because the clerk to the justices where the wife had obtained the order was sufficiently understanding of the situation, once it was explained to him, to call the wife and explain it to her; and she in turn with considerable understanding agreed to a variation
Legal Aspects of Transsexualism
147
to nominal amount. But there is no way of getting rid of the maintenance order as such. Then, of course, one runs into the field of crime as well. Transsexuals may get into trouble as far as criminal law is concerned in two fairly distinct ways. First, as a direct consequence of his condition, he may be prosecuted for importuning or some similar offense, and second, indirectly, because of his condition he may get involved in other offenses, of which shoplifting is undoubtedly the most frequent. In the first category, the importuning sort of case, the lawyer carries a very heavy responsibility to ensure that the defendant, if he wishes to plead guilty (as many of them do to get rid of the thing), is in fact guilty as charged--because society in general and the police in particular are highly suspicious of the transsexual if they have no other information. There seems to be a widely held belief, for example, that the only reason why a man should dress in women's clothes is in order to obtain access to ladies' lavatories or other privy places. In one case where the transsexual was in fact waiting for friends who were in the gentlemen's lavatories, the main evidence was that the defendant was smiling at men when they came out. The essence of the case was really whether the defendant was waiting for somebody she knew or was trying to pick up somebody she did not know. Fortunately, the court took the former view and acquitted her, and they also agreed with me that smiling was not yet a criminal offense in England. The second category presents real problems. This is where the individual is involved in extraneous or apparently extraneous criminal activity, in criminal fields. I accept, as I am told, that there is nothing inherent in transsexualism which turns an individual to criminal activity. Yet I am aware that a number of transsexuals, prior to receiving any help and while in a state of total personal conflict, particularly the poorer ones, resort to shoplifting, mainly for women's clothes in the case of men. The law is silent insofar as any positive description of dress is concerned, and as one walks around London that is probably fortunate for a lot of heterosexuals as well. But dress is negatively determined by offenses of indecent exposure, acts to insult females, and so on. The transsexual who adopts the dress of the gender with which he identifies should have nothing to fear from the law as it is stated, if he otherwise conducts himself with moderation. But the big trouble is, and this may perhaps be a slightly artificial distinction, that he may have something to fear from the administrators of the law, and must be aware that he is particularly susceptible to suspicion from the police. Actions which in a heterosexual may be regarded as utterly unconsequential may render a transsexual suspect. In this he is vulnerable to the area of what you might call "nonspecific criminal charges"--conduct likely to create breach of the peace, insulting behavior, and hazards in the form of little-known provisions in local by-laws and statuteS, which were often enacted long ago to deal with a broad spectrum of problems then identified with vagrancy. Concerning the vulnerability of a doctor to prosecution for performing surgery of a transsexual nature, I would think it important that one should never rely on the consent of a minor, and never rely on the consent of his parents, even if all of them are in it together. But even then consent is not necessarily sufficient in law. It has long been estab-
148
Green
lished that one may consent to minor assaults, and injuries sustained in lawful sporting activities are never actionable in civil or criminal law for this reason. It is also established that a qualified person may deliver grievous assaults on an individual, such as a surgical operation, where it is a matter of necessity for the health of the individual. But no one may consent to physical damage in the grievous bodily harm category, for which there is no necessity. Hence the prosecution in times past of willing participants in illegal prizefighting. And in the extreme, of course, one may never consent to one's own murder. The problem therefore revolves upon the medical necessity of the operation. In practice, I am firmly of the opinion that in England a qualified person who carried out cosmetic surgery on a transsexual competent to give consent, who had given that consent, would have nothing to fear from the law provided that he could establish the operation was done for sound medical reasons. I think here the analogy with the history of abortion prior to the 1967 act, a subject that was charged with a great deal of emotion because of the unborn child element, where the courts firmly held that the operation was lawful if carried out in good faith to preserve the life or the physical or mental health of the woman, is a fair analogy. I think in terms of criminal law there is no great anxiety Now, finally, on the question of criminal liability for surgery, I would mention a case of which I have knowledge, where a patient was admitted to hospital after a prostitute had at his request amputated his sexual organs in totality with a cutthroat razor. He recovered and was discharged apparently happy at the outcome. In that case the police did not take the matter further when he refused to press charges against the prostitute, although I have little doubt that she would have been indicted if he had died, and because of the risks I myself feel that she should have been charged in any event. Quite clearly, there is even in the police forces a misunderstanding as to the extent to which consent of the injured person immunizes the person to criminal prosecution subsequently. This, I suppose, is the sort of damage which transsexuals can do to themselves, in the ultimate extreme, if they do not get help Although awareness of transsexualism and other problems is spreading in the courts, and with rapidity, I believe, in the city courts of summary jurisdiction, the problem in all criminal cases of trying to make sense between two mutually uncomprehending sets of people, of circumstances which one is set up and elevated to condemn, is the more difficult in the light of what the court may regard as the abnormality of the individual. To an extent, it seems to me that human curiosity helps here because most people have heard of sex change cases and are particularly attentive when they come across them. Also, once explained, people seem to regard the transsexual with far greater sympathy than perhaps the homosexual, perhaps because the instinctive feeling is to regard the person who changes as more honest than somebody who seems to masquerade as a normal. In all cases when one is dealing with pleas of guilty, it seems to me to be essential for the advocate to try to act as interpreter between the accused and the court, and to enable it to understand, for instance, in the shoplifting cases, something of what it must be like to live an existence as an outlaw where one is relegated to the company, and all it entails, of other outlaws from society. It may very well be that in the metropolitan area there are civilized organizations to cope with the
Legal Aspects of Transsexualism
149
problems of transsexuals and other deviates. I can assure you that in the provincial towns there is very little if any reliable social structure for them at all, and if they wish a social existence then it is the outlaw element to which they must go, or forego social existence whatever. That so many transsexuals manage to survive the hazards of blackmail, emotional or otherwise, and still remain civilized and law-abiding people never ceases to astonish me in this sort of situation. The final part of what I have to say--and from my point of view the most dangerous part of what I have to say--derives from the very considerable problems which an advocate who is unqualified in any medical sense faces in enabling a court to understand, often in a very limited time and usually without expert assistance, problems such as transsexualism which are frequently outside the experience of the court altogether. One may suggest to a court that the human brain may essentially be an instrument which copes with all problems by evaluating on a logical basis current information and problems against data and information stored f r o m the past. Taken thus far, it may feel willing to accept as feasible that our highly complex uses of memory and evaluation of problems, our feelings and emotions, may be no more than a highly complicated replay in the appropriate sense organs of past acquired and remembered sensations. Within such a framework, it may be possible for a court to make some logic of the emphasis that most psychiatrists place on early childhood, something that most laymen find very difficult to accept. Moving from the general to the particular, in applying these sorts of ideas to the problem of the transsexual, the first instinct of the courts, whether one deals with it on this basis or not, is to inquire whether the condition is the result of some detectable physical irregularity. Here, as I understand the position, there is no detectable biological or physiological cause for the condition. This is the sort of information which without more might well lead a court to react on the assumption of "all is well n o w - We will now deal with you on the basis that your own behavior is entirely the result of your deliberate act." But if one has predicted the possibility of dual causes of disorders, it is reasonable to suggest that the possibility remains that the unusual reactions of the individual genuinely, as I would have to put it in court, "result from past acquired experiences." Occasionally, when no other help is available at all, one has no choice, if one is to try to assist a client, but to try to find on one's own some route which will enablethe court to understand what he has done. And in these sorts of circumstances, with transsexuals and with homosexuals, I have done my best and it can only be an inadequate best, to inquire. Insofar as any pattern has emerged from these inquiries, the pattern of the background of the transsexual's family has been one where the dominant personality was female in the case of the male transsexual, or male in the case of the female transsexual, and where the imbalance was an extremely violent one. In addition, the male transsexual may have had no father or the father may have been an entirely negative character. He may sometimes say at least that he has been brought up as a girl. In some cases, low intelligence seems to have aggravated his difficulty in coping with the male role.
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If one can have this sort of information available to a court, and if one can obtain acceptance by the court that environmental conditions may have a direct relationship between current disorders and past events, it is possible I think, by producing this sort of pattern as a history, to enable the court to understand that there may well be a relationship between the environment in which the subject was brought up and his subsequent behavior. And that in fact the way this individual feels is the product of circumstances which are beyond his control altogether. If, for example, a court is about to decide that a male transsexual should go to prison, it is absolutely essential that it should understand the consequences to that individual of being sent to a men's prison where the first administrative act inevitably is to deprive the individual of any semblance of female existence whatever. Very frequently I am asked in court whether transsexuals cannot be treated so as to make them normal. There seems to be immense faith in what the medical and other professions can achieve outside the court, which often seems to regard the prospect of a cure as of the utmost simplicity, dependent only on the willing cooperation of the individual. Here the only method of treatment that I know of that has ever been applied in this area of problems is the question of aversion therapy, which I do not think is relevant, particularly to transsexuals in any event. Aversion therapy seems to commend itself to the courts in some ways, and it may be because practically all our penal codes in the past until modern times have been crudely and sort of instinctively based on a sort of aversion therapy. But if one has gone through the intricate business of the individual's behavior being an immensely complicated replay of past sensations and what have you, even a court can usually see that anything as limited in its application as either prison or a more sophisticated form of aversion therapy is not going to be of much assistance. I can say this, that for whatever reasons, none of the transsexuals with whom I have been professionally involved on criminal cases have been sent to prison. By and large, they have, given some effort, received very, very fair treatment from the court, sometimes a lot fairer than a heterosexual would receive. But there is a great deal which still requires to be done. The law itself is ill. adapted to the problem, if adapted at all, in technical matters, and in many spheres the problem of presentation of the problem is almost as serious as the technical content of the law. It is for that reason that I have widely trespassed on other fields and wandered generally about. If nothing else you will know how dangerous it is to leave the lawyers with a problem in court and not to have available the necessary technical help. Question (Dr. John Randell, Charing Cross): My question is this: and I think Mr. Green did deal with it in part, but I would like a greater exposition of the subject: The question of psychic sex. Lots of our patients admit that they are anatomically and physiologically male when they wish to be female, but they claim that from birth or from an early age they have felt female. Sometimes, and I believe in the near future this will be put forward as a plea for recognition as a legal female, what chance does Mr. Green think that a patient who advances the plea of psychic sex has of obtaining a change in a birth certificate and being accepted in society and by the Registrar General as a person fit to marry a male ?
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Mr. Green: I presume here this will occur after physical adaption by surgery . . . . Well, I would sincerely hope, and again there is no precedent for what could happen, but I would sincerely hope that the position may be attacked in reverse. Not on the basis that these individuals feel themselves to be female and have done their best to look like a female, but on the basis of "what on earth is society going to do with such an individual shaped as he is now if we insist on calling him a male ?." There is no recognition of this problem at all. There is no provision in statute for it. Technically, if the law were to be correctly adapted to deal with this situation, it would mean literally legislation in Parliament, and any of us who have been involved with social legislation would know that we should be lucky to see it in our lifetimes. But the judges do try to make the thing a little more elastic-sided. And I would suspect that if this comes, as it may well do, on appeal, to the question of presentation to the court, the essential thing is going to be to show the courts photographs of the individuals and say "if we are to say, for whatever reason, that this individual has to be called a male, how do we explain this ?" As judges pride themselves on common sense above all things, I do not think that it is impossible that this situation could not be provided for in terms of case law. But I think that if one takes this on the basis of the physiological structure of the individual rather than on his history, where he felt female and therefore we made him as best a female as we could do, and if one says to the judges, "Well, for medical reasons we've got to this point, now are we to insist any longer that this individual should be registered as a male?" I think the judges would exercise common sense and say "no, there must clearly be a recorded change." And if for whatever reason the doctor certified that this change has taken place, it should be recognized as a matter of law. I'm expressing a pious hope because there is no authority, and only Parliament apart from the courts can provide it. Editor's note: Within a year of this presentation, a court in England ruled that a postoperative male-to-female transsexual was still in fact a male and declared a marriage between the individual and a male invalid.
D
