0
Just so everyone knows what I really said in my chapter, it is
below, and also attached as a MSWord file
TRANSGENDER RIGHTS: THE EUROPEAN COURT OF HUMAN
RIGHTS AND NEW IDENTITY POLITICS FOR A NEW AGE
In 1995 I wrote that:
though transsexuals are seeking a unique set of freedoms that
are related to the process of undergoing gender reassignment or
assertion, they are not seeking a new set of rights. Transsexuals
are seeking for the law to acknowledge that they have rights,
not as transsexuals, but as men and women who have finally
become appropriately recognisable through medical
intervention. 11 Whittle, S, ‘Legislating for Transsexual Rights: A Prescriptive Form’ , in Bullough, B, Bullough, V, Elias J, Gender Blending, 1997, pp 430-446, New York: Prometheus Books: 433.
Three years later I would not change my view that transsexuals are
seeking a set of freedoms related to gender assertion, but would now
argue that the identity politics of transsexuals as a subgroup of the larger
transgender community, has shifted considerably . They are no longer
asking the law to recognise them simply as men and women , but rather
they are seeking for the law to recognise them as transmen and
transwomen - a status that goes beyond the dichotomous structures of
sex and gender roles recognised within and by the law. This will be
evident in the folllowing analysis which aims to explain and analyse the
early cases dealt with under the ECHR ,
to contextualise them and finally to explain how human rights issues in
this field have evolved beyond the traditionally stereotypical, to
encompass basic questions concerning recognition of
the civil status of members of the trans community.
CLAIMING A LEGAL STATUS
It would be facile to say that by virtue of this new claim that the trans
community wishes to be recognised as having a unique position, a third
gender or rainbow gendered approach to their legal status. The massive
paradigm shift within the trans community of last few years may have
seen a move from claims of rights within gender roles to claims of needs
regarding the expression of gender roles, but there is a pragmatic
acceptance that gender roles, as defined by those outside of the
community, still exist. Most importantly though, within the community
itself, as we move toward the new millenium, members no longer privilege
‘passing’ - the ability to hide a transsexual identity in a new gender role.
Passing has been, for over 50 years, the defining political movement in
transsexual identity politics. This could be seen in the demands for birth
certificate and identity card amendment along with the right to marry, in
the ‘transsexual’ cases before the European Court of Human Rights
(ECHR) in the 1970s and 1980s22 Van Oosterwijk v Belgium [1980] Series A, No. 40, ECHR; Rees v UK [1986] Series A, no 106, ECHR, Cossey v UK [1990] Series A, no 184, ECHR, B v France [1992] Series A, No. 57, ECHR..
To date all of the applications in the transsexual cases have
claimed a violation of Article 8 of the European Convention on Human
Rights (the Convention) and all have in essence sought an identical
solution: the legal recognition of their true gender identity (after gender
reassignment) in all civil status documents, whether birth certificate or
identity card. Article 8 of the Convention states:
1.Everyone has the right to respect for his private and family life,
his home and his correspondence.
2.There shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the
law and is necessary in a democratic society in the interests of
national security, public safety or the economic well-being of
the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the rights
and freedoms of others.
Until very recently ( in X,Y and Z v UK33 X,Y and Z v UK Government [1997] Application No. 21830/93 ECHR, and Roetzheim v Germany44
Roetzheim v Germany [1997] Application No. 31177/96 ECHR ), the cases have demanded that transsexual men and women
are issued with new civil documentation that recognises them as non-
transsexual men and women. This relies upon the state accepting a
positive obligation to appear to recognise as a fact, something that many
have argued is a fiction, or if not a fiction then at the very least an
assertion based on scant scientific evidence.
This call for a response to a positive obligation arises out of a
possible interpretation of paragraph 1 of Article 8 of the Convention.
Paragraph 2 of Article 8 appears to imply that public authorities simply
have a duty not to interfere with private and family life, home and
correspondence. But paragraph 1, which stipulates the right to ‘respect
for private and family life..’ has been interpreted by the Court and the
Commission ‘as a basis for expanding the duties in Art.8(1)’, thus giving
rise to a state’s possible positive obligations to fulfil its duty under
Article 855 Kroon and Others v Netherlands [1994] Series C, No. 297.The Court itself has stated:
[Article 8] does not merely compel the state to abstain from ...
interference: in addition to this primarily negative undertaking,
there may be positive obligations inherent in the effective
respect for private and family life..66 X and Y v Netherlands [1985] Series A , No. 91: para 23
The extent of the state’s possible positive obligations under Article 8 in
the ‘transsexual’ cases by the European Court of Human Rights has
proved to be a moot point. In Van Oosterwijk v Belgium77 Van Oosterwijk v Belgium [1980] Series A, No. 40 the Court
upheld, by 13 to 4, the Belgium Government’s position of ‘non-
exhaustion of domestic remedies’, despite the fact that there was no
indication that domestic remedies could in anyway resolve the problems
faced by the transsexual applicant, as was pointed out by the dissenting
judges. In Rees v UK88 Rees v UK [1986] Series A, no 106, ECHR the Court held, by 12 votes to 3, that an
amendment of the applicant’s birth certificate would impose new duties
on the state and the rest of the population, by insisting that they
recognise current civil status rather than historical record, and that the
Court could not impose duties of such magnitude.
In Cossey v UK, the Court refused to distinguish this case from
Rees, preferring instead to consider whether there were persuasive
reasons for departing from its previous decision. By 10 to 8, the Court
reiterated that the refusal to amend the applicants birth certificate, or to
allow her to marry a member of the opposite gender, did not constitute an
interference with her private life. The Court said that the applicant was
invoking a positive obligation, and this obligation was subject to the
wide margin of appreciation afforded to the differing practices of member
states ie the striking of a fair balance between the general interests of
the community and the interests of the applicant. In this case it was held
that although there had been some social changes, the nation state had
not contravened its obligations under the Convention..
All of these cases have concerned the ‘traditional’ transsexual
person and what might be considered the traditional issues: privacy and
marriage. However, the next UK case posed the questions differently. X,
Y and Z v UK presented an alternative way for the court to look at the
civil status of the transsexual. It cited Article 8 and also Article 14, which
reads as follows:
The enjoyment of the rights and freedoms set forth in the
convention shall be secured without discrimination on any
ground such as sex, race, colour, language, religion, political or
other opinion, national or social origin, association with a
national minority, property, birth or other status.
The case concerned a transsexual man X, his partner Y and her birth
child Z who had been conceived using donor insemination. The family
had been refused permission to register X as the father of Z on her birth
certificate, on the basis that only a biological male could register as the
father of a donor inseminated child, albeit not biologically related. The
family invoked Article 8, arguing that it had been contravened in relation
to family privacy. They did not request that X be recognised as a man,
nor that he be allowed to marry a woman. But they were hoping that if he
could be recognised as the father of Z, then the UK government would
be obliged to consider the other two issues.
The Court unanimously decided that Article 8 was applicable in
this case as they considered that de facto family ties did exist between
the three applicants despite arguments to the contrary by the UK
government. However, did this mean that the state had a positive
obligation to recognise the de facto family, through civil registration
procedures? The Court, most unfortunately, went on to say that as there
is little common ground amongst the member states of the Council of
Europe as to whether any non-biological father should be recorded on
donor inseminated children's birth certificates. Accordingly, as there is
no common European standard with regard to the granting of parental
rights to transsexuals, then generally speaking the law here is in a
transitional stage, thus states must be allowed a wide margin of
appreciation.
On the question as to whether a fair balance had been struck
between the interests of the applicants and the interests of the state, the
court then held that because transsexuality raises complex scientific,
moral and social issues, Article 8 cannot, in this context, be taken to
imply an obligation for the state to recognise as the father of a child a
person who is not a biological father. That being so, the failure of UK law
to recognise the relationship between X and Y does not amount to a
failure to respect family life. The court further held that the complaint
made under Article 14, was tantamount to a restatement of the complaint
under Article 8 and consequently raised no separate issue. In view of
their findings, there was no need to examine the issue again in the
context of Article 14.
The case raises many issues and its failure tends to say more
about the current state of the European Court of Human Rights, rather
than the state of transsexual rights in the United Kingdom. In this, as in
other recent decisions, the width of the margin of appreciation that the
court is currently according to member states in this area, could be said
to be increasing in many areas of the court's jurisdiction and this does
not bode well for the future of human rights in Europe. However the case
itself makes some progress, not least that the court held that Article 8
was applicable because there was a recognisable de facto family
relationship in existence. The decision though fails to recognise that in
this area there are, or should be, limits imposed on the respect for
fundamental rights guaranteed by the Convention. In the Cossey99 Cossey v UK [1990] Series A, no 184, ECHR
case, Judge Martens held in his dissenting opinion, that the refusal of a
new identity in law for those who had undergone gender reassignment
treatment ‘can only be qualified as cruel’110 ibid, dissenting judgement at para 64.0.
In X, Y and Z, if we look to the dissenting opinions, Judges
Casadevall, Russo and Makarczyk argue that the government should
accept the consequences of allowing X to have gender reassignment and
of allowing Y to have fertility treatment during which X was obligated to
acknowledge paternity. This they consider to positively obligate the
government to take all measures needed, without discrimination, to allow
the applicants to live a normal life.
Judge Thor Vilhjalmsson, also in dissent, argues that as other
non-biological fathers are allowed to be registered on the birth
certificates of donor inseminated children, to refuse to allow X to do so
is discrimination on the grounds of sex under Article 14. Further, this
also leads him to conclude that the family ties between X,Y and Z were
not being respected under Article 8. The fact that the male partner is a
transsexual should be irrelevant. Judge Foighal, who also dissents,
argues that in Cossey the court held that, though the law was in a
transitional state, legal measures should be kept under review to take
account of medical, social and moral developments. He maintains that the
majority decision in X,Y and Z does not reflect the changes that have
taken place in recent years, although the Court was given ample
evidence of those changes. He also states that it is part of our common
European heritage that
governments are under a duty to take special care of individuals who are
disadvantaged in any way. The government did not advance any
convincing arguments with regard to competing interests, nor had they
made any attempt to justify their failure to help X further by ensuring
that his change of sex receives legal recognition, even though this would
help him and harm no-one. These reasons lead him to conclude that in
his opinion, a violation of Article 8 had occurred. Following the
dissenting judgment of Thor Vilhjalmsson, he similarly finds a
contravention of Article 14. Judge Gotchev also argues that a
contravention of both articles has occurred, but from the standpoint of
the ‘welfare of the child’, which should, in his opinion, be the prevailing
consideration. He states that this obligates a state to allow what had
been unanimously agreed upon as de facto family ties to be legally
safeguarded so as to render possible from the moment of birth or as soon
as practicable thereafter, the child's integration into the family. This
would include recognising X as Z's father.
Nation states appear to have been afforded a wider margin of
appreciation than would seem to be required as a result of recent social
and legal developments within the membership of the Council of Europe
and the rest of the world. Indeed, the margin appears wider than the
balancing test supposedly applied by the court to its decisions, would
appear to indicate. Doerfal has argued that the reason for this is that
these decisions are a reflection of ‘the apprehension and prejudices’ of
the majority of the Court’s judges111 Doerfal, J (1998) ‘Transsexuality and the European Convention on Human Rights’, unpublished essay.1. Is it that the Court’s judges cannot
imagine recognising the transsexual person as being of equal worth to
others ? It is perhaps in response to this and the theoretical and social
changes that transsexuals have achieved over the last decade, that X, Y
and Z did not ask for X’s right to marry or to have his birth certificate
changed. Rather the demand being made that the transsexual man be
recognised for what he is, namely a transsexual man, but that that should
not exclude him from recognition as a social and legal father. By
considering these social changes and the more recent case of Roetzheim
v Germany,112 Roetzheim v Germany [1997] Application No. 31177/96 ECHR2 decided by the Commission, it is possible to see both
how transsexual and transgender people are claiming a new class of civil
status and the implications for sex and gender categories as we know
them. The dissenting opinions in X, Y and Z give some hope in that they
give possible ways forward for the future. However they also
acknowledge that identity documentation is not the same as status
recognition, nor will it necessarily provide privacy, personal safety,
employment or relationship protection. The trans community is now
arguing that it is only status acknowledgment as transsexual men and
women which will afford true protection on these levels. In order to do
understand the change in the community’s calls for status recognition
we need to consider how ‘passing’ has no longer become the pre-
eminent consideration for the trans community.
DECONSTRUCTING PASSING
Throughout the 1990s many ‘pre-existent’ community members, who
had transitioned into their new gender roles in the 1970s and early 1980s
and who initially identified as transsexual, were to re-address their
personal sense of self and place. This was to result in profound changes
in the trans politics of the comunity and its members. The reasons for
this are manifold and space does not permit their exploration but Sandy
Stone’s ‘The Empire Strikes Back: A Post-Transsexual Manifesto’113 Stone, S ,‘The Empire Strikes Back: A Post-Transsexual Manifesto’, in Epstein, J, Straub K, Body Guards: the Cultural Politics of Gender Ambiguity, 1991, pp 280-304, London: Routledge.3
is a striking example of the new look that was being taken, in the early
1990s, by the community at itself. In this, Stone called for ‘A deeper
analytical language for transsexual theory, one which allows for the sorts
of ambiguities and polyvocalities which have already so productively
informed and enriched feminist theory.’114 ibid, 2974and she suggested ‘...
constituting transsexuals not as a class or problematic ‘third gender’, but
rather as a genre , a set of embodied texts whose potential for productive
disruption of structured sexualities and spectra of desire has yet to be
explored.’115 ibid, 296, italics in the original.5
For many, in what was to become the trans-community, Stone
articulated the limitations of the medical ‘mental disorder’ model of
transsexuality that had historically arisen and which had failed so many
of the community who felt that they were neither mentally ill and who
were aware that the medical model had in fact ill served them. Medicine
had singularly failed to afford many the ability to ‘pass’ and even when it
did, it had often been at too great a cost: a lost of personal history,
sexual sensation and ability, and without any form of legal protection
within the workplace or on the streets. Stone’s work was to become a
rallying call for a ‘re-visioning of our lives’ not only to the old guard -
who in their positions as community leaders and spokespeople were to
be very influential on new and younger community members - but also to
a new school of trans academics whose work with feminist praxis,
postmodernism theory and ‘Queer’ identity have gelled into a new
framework of identity politics and a new school of theory, trans.
As such the trans-community is approaching the next century
with the tools to develop a diverse and embracing acknowledgment of
the many voices and lifestyles which exist as gender (or body) variant,
which are oppressed because of that gender (or body) variance, and
which are, in Stone’s words, potentially disruptive of structured
sexualities. There can be no denial of the effect that trans theorists are
having but as Riki Anne Wilchins of ‘Transsexual Menace’ says:
Trans-identity is not a natural fact. Rather it is a political
category we are forced to occupy when we do certain things
with our bodies.... The regime of gender is an intentional,
systematic oppression. As such it cannot be fought through
personal action, but only through an organized systematic
response.116 Wilchins, R, ‘Read My Lips: Sexual Subversion and the End of Gender’, 1997, New York: Firebrand Books, 25.6
Trans theory provides the background, trans people provide the victims
but organization has provided some (albeit few) victories in the struggle
for gender freedoms - or should that be freedom from gender ?
THE TRANS MOVEMENT
Theorganisational movements within the trans community that have
taken place over the last ten years have seen an astonishing
growth in a variety of organizations catering for the different
political forms and processes in which members of this diverse
community are able to feel comfortable and participate. These
are not just western euro-american groups, though these do
currently dominate the world of gender politics, but the
interaction with political and community diversity has enabled a
wide ranging set of common sites of oppression to be identified
and to be acted or campaigned upon117 Self Help groups were the earliest types of trans groups often divided into specific ‘camps’ such as heterosexual transvestite, male to female transsexual, female to male transsexual etc. In these groups excellent knowledge and expertise of particular
issues and problems faced by members was developed. These groups still participate in the main educational thrusts of trans and other people. They were also to be instrumental in the development of the The Direct Action groups and The Political Lobbying groups. Direct Action groups such as
‘Transsexual Menace’ are instrumental in trans people and their loved ones getting over one very clear message: we are your neighbours, your friends, your co-workers and keeping trans matters alive and in the public domain, using quick response mechanisms to ensure that immediate direct, and
public, action is taken in response to specific events.
The Political Lobbying groups are the politically wise face of the community. They are at the forefront of organising and co-ordinating political lobbying such as the ‘Days on the Hill’ which GenderPac and ITA have organised in Washington and the Downing Street Lobby in London organised by Press
For Change in October 1997. They also co-ordinate legal challenges at every level and both in the United Kingdom and America have positively promoted transgender and transsexual claims through the courts.7.
The three types of groups; The Self-Help Groups. the Direct
Action Groups and the Political Lobbying Groups have developed a
‘working together’ model - based on the fact that many of their ‘leaders’
were drawn initially from a small core of individuals who had transitioned
gender roles in the 1970s and early 1980s. They were to be at the
forefront of the mail and telephone help support systems that developed
through the 1980s. From the numerous stories they were to hear and
collect, many were then to go on to become involved in writing and
theorising about the oppression that community members faced. They
were to be amongst the first to develop a trans theory in which the actual
sense of gender that previously was theoretically tied to trans bodies,
whether through performativity or biological essentialism, was
successfully re-codified away from such limiting paradigms.
As such these paradigms still exist for the trans community, but
they have been successfully deconstructed by community leaders and
theorists as being irrelevant to transgender lives, other than as external
mechanisms of power and oppression. This theorisation was to lead to
the resultant changes in activism which were to found the direct action
groups and ultimately the political lobby groups and their agendas. It is
also important to understand how, as Kate Bornstein has put it, gender
defenders ‘bang their heads against a gender system which is real and
natural and ... then use gender to terrorize the rest of us’118 Bornstein, K, Gender Outlaw: On Men, Women and the Rest of Us, 1994, London: Routledge, 72.8. The
‘rest of us’ are trans people for whom gender is ‘real and natural’ (neither
merely biologically determined nor mere performativity), a concept at the
heart of the newly developed transgender activism. The self with its
trans identity can be now be experienced as an authentic self rather than
as the medicalised paraphilia, currently imposed by physicians, attached
to the body and regarded as the trans sense of identity by the rest of
society.
Through its organisational processes the transgender
community itself is being redefined, and the issues of importance are
shifting. The personal recognition of the actual self; internally defined,
as opposed to the medical self; which had been externally dictated, has
meant a huge shift has already been undergone in transgender politics;
the body or its performativity is no longer the dictator of gender. Gender
has become who or what you experience through your experience of
oppression as well as through a celebration of diversity of experience
and life styles. The basis of the self-help, activist and political lobbying
groups has quickened the decline of the legitimacy of the politics of
‘passing’ for the trans community, and has provided both the catalyst
and the mechanism for that decline. Previously, as Stone put it, it was
‘difficult to generate a counter-discourse if one [was] programmed to
disappear.’119 Stone, S, see above, 295.9
One example of the frequently condemned features of a
transgender life is that it abounds in stereotypes which
reinforce oppressive gender roles. As Raymond puts it
transgenderism [has] reduce[d] gender resistance to wardrobes,
hormones, surgery and posturing --- anything but real sexual
equality. A real sexual politics says yes to a view and reality of
transgender that transforms, instead of conforming to, gender.220
Janice Raymond quoted in Ekins, R, King, D, Blending Genders: Social Aspects of Cross-dressing and Sex-changing, 1996, London: Routledge, 223.0
If the transgender movement were as Raymond suggests, it would
indeed have little to offer, other than as a self-help network in which
people are ‘taught’ how to reinforce the values of a white, heterosexist
patriarchy. Trans women would endeavour to ‘pass’ as the oppressor,
leaving others behind to bear the brunt of struggle and discrimination.
Such a view singularly fails according to trans theory, because if it is
right that there are far more transsexual women, than vice-versa, they are
in fact struggling to become the oppressed, and to leave behind a
position of privilege. It also assumes that a move to ‘female genre’ is the
same as disappearance into femaleness, an experience that is very
infrequent for transsexual women who rarely experience an easy
transition or future acceptance as ‘women born women’. The reality of an
oppressed experience based on gender representation is, in fact, all too
true for the majority of the transgender community. It is that oppressed
experience that the community ultimately wishes to address. But for there
to a the change in understanding of what is considered oppressive, the
doors had to be opened to those who were previously unable to have a
voice in the politics surrounding transgender (or as it was then
transsexualism) because of their social position, both within and outside
of the trans community.
RECREATING THE SELF
Most members of the trans community would accept that there had been,
in the ‘real world’, a de facto hierarchy that was very much concerned
with ‘passing’. ‘Passing’ --- some notion of feminine or masculine
‘realness’ --- would provide for many a physically safe, although
restricted, and un-authentic, way of living. Furthermore ‘... the principle
of passing, denying the destabilizing power of being ‘read’, [means that]
relationships begin as lies221 Stone, S , see above, 2981. The truth of the matter, though, was that
even the most ‘passable’ transsexual woman could find herself
vulnerable. This is what happened to Caroline Cossey (Tula) when her
privacy disappeared after the ‘News of the World’ published an expose
of her transsexual status in September 1982.
The hierarchy based on ‘passing’ was such that those who
were the most ‘non-transsexual’ looking were awarded status and
privilege, whilst those who were most obviously transsexual or
transgender were often the butt of private jokes and exclusionary
behaviour222 Green, J, Wilchins, R, ‘New Men on the Horizon’, FTM Newsletter, January 1996, Iss 33. San Francisco: FTM International, 1.2. By default, they were also to be the front line of any
political or social movement that existed. By not ‘passing’ they daily
faced the street issues which often resulted in emotional, financial and
even physical scars. The privileged few would however get to dictate the
terms as to what were ‘important and significant’ issues. If you ‘pass’
then the issues are bound to be based around matters such as further
privacy rights, e.g. the right to have birth certificates reissued, and
further relationship rights, e.g. the right to marry in one’s new gender
role. Feinberg, in particular, asserted that the community could no longer
afford to use this assimilationist approach to activism, seeing it as one
consequence of early minority rights activism, and as far too limiting:
When a young movement forms, it gets a great deal of pressure
to put forward only its bestdressed and most articulate ---
which is usually a code word for white.... These
‘representatives’ are seduced into thinking the best way to win
is to not rock the boat and ask for only minimal demands. A
more potent strategy relies upon unified numbers..... We need
everyone and cannot afford to throw anyone overboard. After
all, we could never get rid of enough people to please our
enemies and make ourselves ‘acceptable’.223 Leshko, I, ‘Determine, Define, Modify Gender’, 1996, WWW: http://planetq.com/pages/lfeinberglnt.html3
The plain fact is that the majority of transgender or transsexual women224 these are trans people whose sense of actual gender means that they self identify as belonging in that place in the gendered framework that most natally designated women automatically occupy.4
cannot and will never ‘pass’, and so assimilationist politics are
inadequate. For these women, their issues are not necessarily going to
be those of the privileged few who could seek integration. For them such
rights are meaningless in the context of their lives - if you cannot pass,
beyond the most casual of inspections, then any reissued birth
certificate will certainly not prevent your discovery as a transsexual
woman whether by prospective employers or by observers on the street
and you are very unlikely to find a relationship which is so conventional
that marriage matters. It would only be by opening the forum to these
people that a unified group could form which could address fully the
legal issues that caused real and universal oppression. But as Stone puts
it:
For a transsexual, as a transsexual, to generate a true, effective
and representational counter-discourse is to speak from outside
the boundaries of gender, beyond the constructed oppositional
nodes which have been pre-defined as the only positions from
which discourse is possible.225 Stone, S. see above, 295.5
Deconstructing the demands of passing, just as enunciated by gays,
lesbians, and people of colour in their articulation of arguments for
solidarity, suggests that all transsexuals must take charge of the history
of all of their community. The only way to do that is by not ‘passing’
and, instead, speaking from outside the boundaries of gender. Ironically,
however, many of the community leaders were to be people who could
have chosen to pass, and to fall victim to the politics of passing. That
they have chosen not to, not only results from their experiences at the
forefront of the self-help groups where the oppression that others faced
was made all too clear, but the mechanisms they chose to run and co-
ordinate those groups were to be instrumental in also informing the
theoretical and ultimately political stance they were to take.
For Trans men the internet and cyberspace were to provide a
space in which the (invariably housebound) victims of poor surgical
procedures226 Phalloplasty (the surgery to create an artificial phallus) has always been extremely problematic, with a very low rate of success in terms of providing an aesthetic phallus, which could be used for voiding and sexual intercourse. Further many such attempts at these surgical
procedures have resulted in ongoing long term disability for the recipients, ranging from incontinance, excessive abdominal scarring, long term catheterisation to loss of mobility in the lower limbs. See Green, J, Wilchins, R, above, 1.6 could talk freely about their experiences, without
presenting their failed body image, and others who had not yet
undergone the procedures could assess whether they wanted to take
such great risks in an attempt to ‘fully pass’. This opened a discussion
around what makes a ‘real’ man, and the body was able to be dismissed
as a socially controlling mechanism that dictated power roles but which
in the transsexual man was shown to be an inadequate mechanism which
missed their authenticity. Many transsexual men started to view the
body differently and as a faltering ‘sight’ of ‘passing’ and reclaiming
their identities as trans men. This combination of ‘representing the body
image’ and the potential privacy of a public display of the personal
alongside the new spatial dynamics of the internet, has contributed
greatly over the last five years, to the immense change in trans politics.
Many trans/gender/sexual women and men have discovered a way of
possessing for themselves, entirely subjectively, an actual identity as
trans.
As a result, the trans organisations have presented a safe area
where body image and presentation are not amongst the initial aspects of
personal judgment and social hierarchy within the transgender
community, so extending the range of potential community members and
voices and thus reformulating the community’s understanding of gender
oppression.
A NEW COMMUNITY
The denotation of the community has been re-ordered through
community politics. This means that we no longer see the definitions
provided by the medical profession being adopted by the community as
its boundary identifiers.In 1990, the Gender Trust, a UK self help
membership group for transsexuals defined its members as having:
a profound form of gender dysphoria, and persons thus
affected have the conviction of being ‘trapped in the wrong
body’ and feel compelled to express themselves in the gender to
which they feel they belong.227 Gender Trust Handbook, 1990, London : The Gender Trust.7
By 1996, however the on-line TransMale Task Force defined itself as:
a grassroots organization of transsexual and transgender men
who are committed to creating action on major issues affecting
our community. Our membership is open to all those who
identify as male but were born with female anatomy. Some of us
have or are seeking medical treatment to change our bodies ---
others are not. Many of us live fulltime as male, while others
are either just beginning their process or are still considering it.
We are a diverse group, comprised of all ages, races, sexual
orientations, professions, and lifestyles.228 TMTF Mission Statement, (1996), San Francisco: the Trans Male Task Force, unpublished.8
The Mission Statement then goes further:
The usage of the term ‘transgender’ has undergone a
tremendous amount of change over the past decade, and is
currently used in a number of different ways. Some political
action and educational groups are promoting its use as an
umbrella term to include transsexuals, transgenderists,
crossdressers (transvestites), and other groups of
‘gendervariant’ people such as drag queens and kings, butch
lesbians, and ‘mannish’ or ‘passing’ women. However, it must
be realized that many people belonging to the aforementioned
groups do not wish to be included under this umbrella, and
prefer to retain their distinct identities ... Some transgender
people consider themselves a third sex, neither male or female
but combining characteristics of both (also called an epicene or
‘third’). Most commonly, transgender people live as, identify as,
and prefer to be treated as, belonging to the ‘opposite’ sex, but
do not wish to change their bodies through surgery.229 ibid.9
In the six years between these statements we see a series of changing
emphases. Firstly there is a move from a medical naive paradigm which
excludes most people to a complex paradigm which is inclusive rather
than exclusive. The defining process is no longer medical and the
community boundaries are neither based on surgical procedures, nor
even controlled in any way by physicians. Instead the boundaries are
flexible, encompassing rather than prescribing. Thus the definitional
limits are experientially informed by the self who chooses inclusion,
rather than being medically informed. Hence inclusion is not forced upon
the individual through specific medical intervention.
It is perhaps this aspect of `choice’ which is most interesting
because it is a reflection of the process of re-embodying the self which
has taken place particularly within Cyberspace. Because inclusion in the
cyber-trans community is by choice it removes the need (as felt by many
in the past) to aim for the status of being a ‘non-trans/gender/sexual
person'. Historically, the authors of ‘transsexual’ autobiographies have
often sought hard to distinguish themselves from the rest of the
trans/gender/sexual community by claiming some sort of intersex
disorder such as Kleinfelter's syndrome330 see, Allen, R, But For The Grace: The True Story of a Dual Existence, 1954, London: W.H.Allen; Cossey, C, My Story, 1991, London: Faber and Faber Ltd; Langley Simmons, D, Dawn: A Charleston Legend, 1995, Charleston: Wyrick & Company.0. Whether a true
reflection or not of their situation, there are certainly many reasons why
such people should wish to portray an identity ‘in effect’ in the real
world.
The resulting recreation of the community, both in terms of its
hierarchical structure and the prioritisation of issues has resulted in a re-
evaluation of the legal issues which are important: the reality was that for
most women the issues were not of individual privacy but of personal
safety regardless of trans-visibility, and for most men they were to do
with expressing the actual masculinity of the self through a failed body
site which would never in itself afford them a legal status as men. New
forms of legal activism have followed from the new consciousness
enabled through community politics.
A NEW AGENDA
Legal activism in this area has tended to concentrate on ‘quality of life’
issues such as the transsexual's right to birth certificate change, the right
to marry and the medico-legal issues of treatment and surgery. Of recent
years, the issues of concern have changed within the new community,
the emphasis on birth certificates and marriage (which are to do with the
further privacy of ‘passing’) giving way to concerns about the right to
personal physical safety, about the right to keep a job regardless of a
transgendered status and resultant lifestyle, about the right to be treated
equally before the law particularly in the area of relationship rights and
the right to medical treatment (including reassignment) ,to all of which
‘passing’ should be irrelevant.
The 1990s cases before the European Courts have clearly
illustrated some of these trends, with cases concerning employment
rights331 P v S and Cornwall County Council, [1996] IRLR 347.1, parenting332 X,Y and Z v UK Government [1997] Application No. 21830/93 ECHR.2, the right not to face arbitrary discrimination
in areas such as cross border immigration, marriage status, employment
regulation and the right not to have to disclose medical treatment except
where absolutely necessary333 Sheffield v UK Govt [1997] Application No. 22985/93 ECHR; Horsham v UK. Government [1997] Application No. 23390/94 ECHR.3. However one particular application
to the European Commission on Human Rights sums up the essence of
the new campaign issues surrounding gender identity rights.
Roetzheim v Germany334 Roetzheim v Germany [1997] Application No. 31177/96 ECHR.4 concerned the application by Dora
(formally Theodor) Roetzheim to the Commission alleging that the
German government had failed in its obligations, in that its refusal to
recognise her new gender for civil status purposes violated Article 8 of
the European Convention on Human Rights. German law provides two
remedies for transsexuals: firstly a change of forenames which does not
require there to have been any surgical intervention and secondly, an
amendment of public registries following surgical reassignment
treatment. Particular features of the application were that Roetzheim,
although living as a woman and taking female hormones, had not
undergone any gender reassignment surgery and, further that she had
given up a well paid job in order to work as a woman. Accordingly, she
argued that her maintenance obligations to the children of a former
marriage should be reduced. The local courts had held that without
genital surgery there was no obligation to amend her public status and
further stated that because of the lack of surgery there was no reason
why she should not resume her male role and take up her former
profession, hence retaining the value of her maintenance obligations.
Roetzheim had argued that the requirements of s.8 of Germany’s
1980 Transsexuals Act (Transsexuellengesetz) for a change of civil status
that a person must be unmarried, permanently unable to procreate and
have undergone gender reassingment surgery with the consequence that
the outer appearance resembles closely the phenotype of the opposite
sex, was a violation of her right to respect for her private life under
Article 8 of the Convention. Fundamental to Roetzheim’s argument was
that her gender identity should be recognised regardless of her body
morpholgy. The Commission was to find unanimously that Roetzheim’s
application was ill-founded and declared it inadmissible.
Roetzheim’s claims before the Commission closely mirror those
made in the International Bill of Gender Rights335 ICTLEP, ‘Proceedings from the Fourth International Conference on Transgender Law and Employment Policy’, 1995, Houston: ICTLEP: viii-xi5 wherein
fundamental human and civil rights are articulated from a gender
perspective. The rights claimed are not be viewed as special rights
applicable to a particular interest group, but are to be regarded as
universal rights both claimable and exerciseable by any and every
human being. These range from the right to define and have free
expression of gender identity for one’s self, to the right to conceive, bear
or adopt children, to nurture and have custody of them regardless of a
self-defined gender identity or the expression of such identity. These
rights are both transformative and embedded in notions of personal
liberty and free expression. They provide a framework for the claims of
the new trans community and as such are increasingly being seen as the
paradigms that inform the legal battles the community is undertaking. As
yet they may be seen as being too revolutionary for justice systems yet
they are simple truisms with which it is hard to argue. For example; ‘the
right to train and to pursue an occupation ... nor to be denied ...
employment ... or just compensation by virtue of chromosomal sex,
genitalia, assigned birth sex, or initial gender role’ reflects what we might
see as essential interpretations of the Equal Treatment Directive of the
European Community, or the Sex Discrimination Act. Yet for trans people
those rights have to be fought for and clearly articulated as was to
happen in P v S and Cornwall County Council336 P v S and Cornwall County Council, [1996] IRLR 347.6 in the European
Court of Justice.
It can only be a matter of time before arbitrary and unfounded
discrimination of any kind on the grounds of gender identity and gender
expression is outlawed. This is the new agenda for the new millennium
which the re-organised, newly informed and highly politicised trans
community is determined to make happen. They have not flinched as yet
from the battle as they are extremely determined to win the war against
gender identity discrimination, Increasingly, they are using the courts
and the tools of the political lobby to ensure that their issues and claims
are heard and heeded.
Ó 27 March, 1998, Stephen Whittle, Ph.D, MA, LLB, BA
The School of Law
Manchester Metropolitan University
Hathersage Rd
Manchester M13 0JA
ENDNOTES:
1Whittle, S, ‘Legislating for Transsexual Rights: A Prescriptive
Form’ , in Bullough, B, Bullough, V, Elias J, Gender Blending,
1997, pp 430-446, New York: Prometheus Books: 433.
2Van Oosterwijk v Belgium [1980] Series A, No. 40, ECHR; Rees v
UK [1986] Series A, no 106, ECHR, Cossey v UK [1990] Series
A, no 184, ECHR, B v France [1992] Series A, No. 57, ECHR.
3X,Y and Z v UK Government [1997] Application No. 21830/93
ECHR
4Roetzheim v Germany [1997] Application No. 31177/96 ECHR
5Kroon and Others v Netherlands [1994] Series C, No. 297
6X and Y v Netherlands [1985] Series A , No. 91: para 23
7Van Oosterwijk v Belgium [1980] Series A, No. 40
8Rees v UK [1986] Series A, no 106, ECHR
9Cossey v UK [1990] Series A, no 184, ECHR
1ibid, dissenting judgement at para 64.
1Doerfal, J (1998) ‘Transsexuality and the European Convention
on Human Rights’, unpublished essay.
1Roetzheim v Germany [1997] Application No. 31177/96 ECHR
1Stone, S ,‘The Empire Strikes Back: A Post-Transsexual
Manifesto’, in Epstein, J, Straub K, Body Guards: the Cultural
Politics of Gender Ambiguity, 1991, pp 280-304, London:
Routledge.
1ibid, 297
1ibid, 296, italics in the original.
1Wilchins, R, ‘Read My Lips: Sexual Subversion and the End of
Gender’, 1997, New York: Firebrand Books, 25.
1Self Help groups were the earliest types of trans groups often
divided into specific ‘camps’ such as heterosexual transvestite,
male to female transsexual, female to male transsexual etc. In
these groups excellent knowledge and expertise of particular
issues and problems faced by members was developed. These
groups still participate in the main educational thrusts of trans
and other people. They were also to be instrumental in the
development of the The Direct Action groups and The Political
Lobbying groups. Direct Action groups such as ‘Transsexual
Menace’ are instrumental in trans people and their loved ones
getting over one very clear message: we are your neighbours,
your friends, your co-workers and keeping trans matters alive
and in the public domain, using quick response mechanisms to
ensure that immediate direct, and public, action is taken in
response to specific events.
The Political Lobbying groups are the politically wise face of
the community. They are at the forefront of organising and co-
ordinating political lobbying such as the ‘Days on the Hill’
which GenderPac and ITA have organised in Washington and
the Downing Street Lobby in London organised by Press For
Change in October 1997. They also co-ordinate legal challenges
at every level and both in the United Kingdom and America
have positively promoted transgender and transsexual claims
through the courts.
1Bornstein, K, Gender Outlaw: On Men, Women and the Rest of
Us, 1994, London: Routledge, 72.
1Stone, S, see above, 295.
2Janice Raymond quoted in Ekins, R, King, D, Blending Genders:
Social Aspects of Cross-dressing and Sex-changing, 1996,
London: Routledge, 223.
2Stone, S , see above, 298
2Green, J, Wilchins, R, ‘New Men on the Horizon’, FTM
Newsletter, January 1996, Iss 33. San Francisco: FTM
International, 1.
2Leshko, I, ‘Determine, Define, Modify Gender’, 1996, WWW:
http://planetq.com/pages/lfeinberglnt.html
2these are trans people whose sense of actual gender means that
they self identify as belonging in that place in the gendered
framework that most natally designated women automatically
occupy.
2Stone, S. see above, 295.
2Phalloplasty (the surgery to create an artificial phallus) has
always been extremely problematic, with a very low rate of
success in terms of providing an aesthetic phallus, which could
be used for voiding and sexual intercourse. Further many such
attempts at these surgical procedures have resulted in ongoing
long term disability for the recipients, ranging from
incontinance, excessive abdominal scarring, long term
catheterisation to loss of mobility in the lower limbs. See Green,
J, Wilchins, R, above, 1.
2Gender Trust Handbook, 1990, London : The Gender Trust.
2TMTF Mission Statement, (1996), San Francisco: the Trans
Male Task Force, unpublished.
2ibid.
3see, Allen, R, But For The Grace: The True Story of a Dual
Existence, 1954, London: W.H.Allen; Cossey, C, My Story,
1991, London: Faber and Faber Ltd; Langley Simmons, D, Dawn:
A Charleston Legend, 1995, Charleston: Wyrick & Company.
3P v S and Cornwall County Council, [1996] IRLR 347.
3X,Y and Z v UK Government [1997] Application No. 21830/93
ECHR.
3Sheffield v UK Govt [1997] Application No. 22985/93 ECHR;
Horsham v UK. Government [1997] Application No. 23390/94
ECHR.
3Roetzheim v Germany [1997] Application No. 31177/96 ECHR.
3ICTLEP, ‘Proceedings from the Fourth International Conference
on Transgender Law and Employment Policy’, 1995, Houston:
ICTLEP: viii-xi
3P v S and Cornwall County Council, [1996] IRLR 347.
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