Revisited: Transsexualism and the Law - The Amsterdam Colloquy of 1993

Yesterday I dug into my archives to dust off a report I wrote for the Press for Change web site in 1996 - as an illustration of the endangered early history of trans rights campaigning in Britain.

I created the prototype of the campaign's web site over the Christmas holidays in 1995, realising how desperately we needed to be able to communicate with a geographically dispersed and isolated trans community to get them on board.

We wanted a coordinated volunteer force, willing to advocate on their own behalf and to support our work. To achieve that would require a mix of education (telling them what we knew) -- and encouragement (convincing people that our cause, though a difficult long haul, was not a futile one).

But, long before the web site, I had been writing about and explaining events.

The 23rd Colloquy of the Council of Europe in Amsterdam, April 1993

One of the most significant events I have ever attended took place in April 1993. I was persuaded to go by my friend, Alice Purnell, the founder of the Gender Trust.

I say significant because it represented a lightbulb moment - an epiphany - for me.

The event was a major conference organised by the Council of Europe. It was a multii-disciplinary gathering, intended principally for lawyers and doctors to come together to talk about the difficult status of transsexual people.

The colloquy, "Transsexualism, Medicine and the Law",  lasted three days and changed me profoundly.

From the sessions I attended I learned that there was a medical understanding of people like myself that simply wasn't part of any discourse about our rights in Britain. There was also a liberal rights-based legal discourse too. It revealed stuff which meant that what we were seeking shouldn't be a call for tolerance, but a call for justice.

I remember finding the passion to stand up at the floor mic and argue at one point, in French, against one of the few intolerant contributors. If you have any idea how weak my spoken french is, you'll understand what kind of inspiration that required.

I also remember crying all the way through the closing session. It was that significant.

Flying home the next day I also realised it had planted a seed. If learning all this stuff changed my whole understanding, what would happen if everyone else could be helped to know the same? It took a while to assemble the means, but this is genuinely where my own arc as an activist began, as it was one of the events that brought Stephen Whittle and myself together and led him to invite me to join the fledgling Press for Change.

This account was written shortly after the colloquy and published in the Gender Trust's magazine.

Report on the 23rd Colloquy of the Council of Europe, April 1993

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It was, in the summing up words of one contributor a "..most unusual and memorable occasion ..." a gathering where not only lawyers and medical experts but their client group too had come together for three days and achieved an uncommon level of agreement and understanding.

Margaret Killerby, the head of the Council of Europe's Civil and Commercial Law division was speaking in the closing ceremony of the Council's Colloquy on "Transsexualism, Medicine and Law" at the Free University of Amsterdam and her words reflected the feeling of everyone who had taken part. Speaker after speaker had echoed the same theme, paying particular note to the contribution made by the Transsexuals themselves, whose voices had frequently been raised to challenge inaccuracies, prejudice, and sloppy reasoning ... helping to ensure that the conclusions to be drawn were fair and representative of their experience.

The Colloquy was hosted by the University on behalf of the Council of Europe, it having the distinction of being the only institution in the world to have appointed a professor of transsexology. The event drew legal and medical experts not just from the 26 European member states but from across the globe. This meant that not only could psychiatrists, psychologists, endocrinologists and surgeons trade their research findings from across the world but international law makers were present too to learn that transsexuality is more and more regarded as a real phenomenon, worthy of serious research and compassionate treatment.

Although a lot of medical and psychiatric information was exchanged, undoubtedly the most fascinating aspect of the conference was the legal discussion, since a resolution of the many conflicts and anomalies which exist in dealing with this group of people are of interest not only to the transsexuals themselves, but to everyone.

First, before the hopes of Britain's Transsexuals are raised too soon, it has to be borne in mind that neither the Colloquy nor the Council of Europe will have a direct effect on the immediate situation in law for them either now or in the immediate future. This situation, it was quite quickly apparent, is nothing short of a catastrophic farce.  Since Sweden became the first to do so in 1972, only a further four European states have enacted specific legislation concerning the status of Transsexuals in society (Germany in 1980, Italy in 1982, The Netherlands in 1985 and finally Turkey in 1988).  Other states have been reputed to have statutes (eg Denmark, Finland, Luxemburg and Spain) but, according to Professor Michael Will from the Faculty of Law in the University of Geneva, it is not clear in which direction and to what extent.  Nor, according to Don Bradley a senior lecturer in law at the London School of Economics, was the justification or achievement of such legislation a cut and dried process.... involving, as it does, issues of ideology, complications with existing statutes and definitions, political culture and institutions.

Both speakers' contributions to the colloquy were too detailed and well presented to do proper justice to their arguments in a short article.  However, Don Bradley's paper represented perhaps the best summary and explanation to date as to why there should be such resistance to change and Michael Will's went on to ennumerate some of the many issues that arise when a state does consider enacting a law.

According to Bradley, the first impediment to legislation is the many and varied ideological arguments that are ranged against a liberal line of thought, not only from religious commentators but from other viewpoints, such as that espoused by the feminist writer Janice Raymond.  In her book, The Transsexual Empire, she sees male to female Transsexuals as something amounting to a fifth column. Many of the research findings coming out of the colloquy as a whole tend counter, head on, the central tenet of many viewpoints such as these... The idea, in its' various forms, that Transsexualism is an optional state of existence (whose only cause is whimsy) and the assumption that apparent birth sex and gender are inseparable is simply not representative of the facts.

The inconsistency of these commentator's arguments when applied across the whole spectrum of sex and gender variations and a range of cultures is only really apparent when the holes are exposed in a forum which has access to factual research from every perspective. This was why the meeting of minds in this colloquy was so valuable. If genital appearance at birth defines one as a "man" or a "woman" where is one to place the many hermaphrodites born with complete sets of both genitals, or those "boys" who later turn out to be "females" when a childhood penis turns out to be an enlarged clitoris? And if one opts, instead, for a rigid chromosonal definition, how do you then regard a normal looking "woman" who even after developing breasts and a feminine body shape at puberty turns out to be (on gynaecological examinination) an "XY" male with a complete insensitivity to the testosterone welling from "his" undescended testes?

Looking around the conference hall as these commonplace and long-since documented birth variations were explained by Amsterdam University's Professor Louis Gooren, it was apparent to what extent whole systems of thought were being shaken, as many delegates learned (perhaps for the first time) that there's more to life than X and Y, vagina and penis.  When the Professor then went on to discuss tentative (and albeit as yet unsubstantiated) findings that suggest brain differentiation may not be completed until the age of 4 years (and that this can, like everything else, go the "wrong" way) a new picture began to emerge in which physically "normal"  but dysphoric males and females could be viewed as parts of the same group of people as those who have more obvious physical ambiguities to their status.

However to return to Don Bradley's lecture.. He then went on to explain the problems which transsexuality poses for the mass of existing laws and provisions drafted and intended to serve for a society in which sex status is assumed to be indisputable and unchanging.  The obvious problem, and cause celebre, is of course the matter of the birth certificate ... although Transsexuals in Britain should at least be thankful that they are able to alter their name without incident.  In many countries, such as France, this isn't (or wasn't until legislation) at all possible ... leaving Transsexuals in those countries with a far more embarassing and enduring day-to-day problem than their British cousins.  But there are also many problems of marital and employment law, inheritance, and civil rights which aren't simply solved by appending or crossing out "wo" in front of "man" on a piece of paper. Not only is it necessary to wonder whether Transsexuals should be allowed to marry in their new status, but what should become of their former obligations (indeed marriages?) if they were married in their original role?  And, for that matter, what were the prerequisites to be fulfilled before a state should permit surgery or a name change or, ultimately, a change of legal status?

It was obvious that the lawyers were in their element given the mental challenge of imagining what sort of (probably very lucrative) complications could arise from admitting the basic idea of a change of sex status into their country's laws.  Indeed, left to their own devices, it was apparent that many (the French in particular) were quite happy to establish everything by resort to case law and were quite keen not to pin too much down by statute.

It is, of course, "case law" that defines the status (or non-status) of Transsexuals in every country where specific legislation has not yet been enacted. It represents a costly, unreliable and insecure means for anyone's rights to be defined, particularly as the next case to be heard can so easily reverse or restrict a previous ruling and rights can, quite literally, disappear overnight. This is a point which the Transsexuals in the audience were at regular pains to point out.

But law, as Bradley went on to explain, depends upon the flavour and cultural agenda of the state and its' institutions.  A political regime founded on liberalising principles is far more likely to accept change of this sort than one whose stance is more repressive or paternalistic, and the institutions which serve or patronise the state likewise influence the setting of the political agenda.

In Britain, according to Bradley, the resistance to the development of status and rights (typified by the birth certificate issue) seemed motivated more by a principle of conservatism and bureaucratic intransigence than by any specifically identified problems.  In both of the European Court cases heard in the last three years (those of Mark Rees and Caroline Cossey), the decision of the court (against their claims) had been based upon the fact that the UK birth registration process does not admit changes in any form ... thus in refusing to make a change the government was not seen to be denying either party a right they would otherwise have.

This subtlety was underlined more recently in the case brought by a French citizen "B" versus France.  In France, the registration system does allow for birth registration details to be altered in some circumstances so, in denying this to "B" the french authorities were denying her a right as a citizen and the European Court thus found in her favour.  However, as Bradley pointed out, the UK registration procedures have been modified to accomodate the interests of adopted and legitimated children, and this provides perhaps a precedent on which the Rees and Cossey judgements could be challenged.

Even notwithstanding the possibility that a third British Transsexual could return to the European Court of Human Rights with a challenge based on this argument, it is apparent in any case that the balance of favour in international decision making is moving steadily in the direction of the Transsexual. Indeed, the public dissent of one of the court's judges in the Caroline Cossey case (which was a narrow verdict in any case) points to this.  It was therefore very relevant that Don Bradley's presentation should be followed, on days two and three, by the contributions of Michael Will and others, examining the issues to be resolved within and between countries.

Once a state has accepted the basic premise that some sort of legislation is required in order to deal with real-life gender variations, the first issue becomes that of defining the terms, the group of people affected, and where the limits lie.

One speaker raised the dangerous notion of defining some sort of third "intersex" class in law, although this was mercifully discarded by the rest. After all, the very point is to help people to become more integrated and acceptable to themselves and others, not label them for everyone to see.  In fact, Professor Gooren had already remarked that the effect on Dutch Transsexuals' self esteem, confidence and perception by the public had been very marked since the Netherlands had legislated to regard them as members of their adopted sex. He had stressed that this acceptance by society was, from the point of view of rehabilitation, the last and perhaps the most significant step for an individual.

Professor Gooren's point, in many ways highlighted the lack of understanding in many peoples' minds about the direction that Transsexuals are coming from.  Seen as a matter of personal identity above all else, it would seem to be obvious to any compassionate observer that public recognition of that identity (and elimination of conflicts in that area) were, if anything, more important to the Transsexual than surgery.

However, the conference demonstrated time and time again that many people were still stuck down in the foothills of understanding.  Indeed, one delegate from the floor even had to berate the psychiatric profession for its' own stereotyped thinking which continues to place too much emphasis on cultural dress preferences and which confuses sexual preferences as pointers to gender identity.  It had become, she said, a virtual conspiracy in which clients had learned to say what the professionals expected to hear ... and the professionals, in turn, took this at face value to confirm their way of thinking.  The work of the Gender Trust, in researching and collecting the candid feelings and thoughts of Transsexuals bore out a long suspected belief that the development of understanding (and hence more appropriate help) was being held back by the failure of researchers to adequately distinguish between what are conventions and what are core prerequisites for a masculine or feminine identity.  The trust's own research had shown, for instance, that over 60% of Transsexuals retain their original sex preferences after their role change. "If the majority of male to female Transsexuals ended up as lesbians", she argued, "where did this leave the 'professionals' who persisted in seeing such people as repressed gays who wanted nothing more than socially acceptable penetrative sex with a big butch he-man?"

This call for a clarification of thought was of as much relevance to the lawyers as to the care workers and their clients to whom it was directed.  The state had first, for instance, to decide what constituted a valid change of role for the purposes of altering identity documents.  The obvious pointer was the construction of external genitalia and the induction of appropriate secondary sexual characteristics.  However this, as Michael Will pointed out, is not an appropriate measure in the case of F to M Transsexuals where the limits of current medical achievement made it unreasonable to demand phalloplasty as a prerequisite.  In other cases too, there could be instances where surgery (or indeed hormone treatment) could be dangerous for the individual and it was important not to discriminate against such people with an over-simplistic definition of gender reassignment.  He referred, for instance, to a case in German case law where an applicant suffered from liver trouble following a car accident and, although having undergone a mastectomy, feared the risks of hormonal treatment and the removal of their uterus and ovaries.

A line obviously has to be drawn however, as no-one wanted to raise the problems of new men becoming pregnant or new women fathering further children.  The Swedish, German and Dutch laws therefore embodied the requirement that a person should be unable to procreate in a completely irreversible manner ... actual removal of the testes or uterus/ovaries being deemed necessary to prevent surgical reversal or the possibility (for instance) of an ectopic pregnancy.  In the case of the German man referred to above, therefore, the courts had been sympathetic in permitting him to change his name but, since he continued to menstruate, a change of sex status was refused.

There are apparently few countries which outlaw or seek to regulate re-assignment surgery itself, probably since medical ethics provide adequate safeguards in themselves.  According to Michael Will, there had been cases of a doctor in Argentina being convicted in 1966 after carrying out an operation, and another more recently in Brazil (1978). In France there had been a case involving a young surgeon who was jailed for six months. However there were other more serious factors in this case.  The doctor had operated after only one meeting and without any other professional opinion in 1980 and the surgery had been very poor.  Finally, after eight years of attempts to seek remedial surgery elsewhere, the patient had shot herself.

However, although countries have not sought to impose conditions such as the "real life test" as a prerequisite for surgery, some have embodied it into their conditions for a legal change of status.  In Germany, for instance, the original wording of the act, which called for a "considerable period of time" living permanently in the new role, was eventually refined to "at least three years".  Again though, as Mr Will pointed out, legislation this precise creates problems when surgery has been carried in an urgent attempt to mitigate a patient's self mutilation.  Should that person still then have to wait out a period of three years?

It is obviously a problem for lawyers framing any new legislation to cover as many "what if?" scenarios as possible. This is in everyone's interest as it reduces the number of occasions when an individual will need to take expensive and time-consuming recourse to the courts for clarification. Given the time and thought which it takes for someone coming new to the subject to properly understand the issues raised by Transsexuals, and to correct false assumptions, it's also probably safer not to leave too much of the framework in the hands of judges, who may be pressed for time and who may have a lifetime's ideas and prejudices to up-end in order for justice to be achieved.

However, the alternative is not necessarily to adopt the excuse that all of these matters need to be fully resolved before you have any legislation, a point of view evidently much in favour with the French delegates to the conference.  The fair and reasonable course probably lies somewhere in-between, as always...

The experience of the countries where legislation has been enacted has not been to see a flood of anomalous or grotesque cases, in or out of the courts. Perhaps countries that fear this are still unconsciously seeing Transsexuals as publicity-seeking anarchists, intent on making a fool of the state, rather than quiet and mostly very ordinary people who want their change of status to create as little personal and public embarassment as possible.  All laws come to the statute book with flaws and omissions which the architects didn't forsee, and any country now contemplating legislation at least has the experience of five countries over the course of 13 years to draw on. As one contributor pointed out, those countries are the ones which now have reliable statistics and a clearer conception of gender dysphoria; those states haven't lost anything, public order and moral welfare have been maintained and (if anything) the Transsexuals in those countries have been better placed to live in society, pay taxes and contribute to social security than before. It was therefore suggested that the states which were sitting on the fence should put Transsexual legislation to the "real life test" as the Transsexuals themselves are obliged to do with their lives.

If making domestic legislation is a problem, however, it seems that it could be trivial compared to the problems of getting other countries to recognise what you've done and to iron out the discrepancies caused by differences in application.

It is usual for one state to recognise the identity documents and marital status conferred by another.  For instance, if an Arab with six wives comes to reside in England we do our best to recognise and respect the conventions of his culture. We don't, for instance, treat the wives as unmarried for social security purposes just because our own system prescribes monogamy.

Yet this sort of problem has already begun to occur for European Transsexuals, whose identity stands to be challenged and redefined each time they cross a border.  Indeed now that most European Community frontiers can be crossed at 65mph in a car without stopping it is becoming truly bizarre.  Imagine your marriage being anulled for you somewhere on the M4 between London and Swansea when going West for a weekend in Wales, and the full absurdity becomes apparent.

We already have the case of Dutch residents of UK birth whose documents (after being altered legally in the Netherlands) will not be ratified by British authorities and, as more countries act, the worse and more complex it will become. (Indeed the Transsexuality issue is, according to one observer, a very real potential flashpoint between the states in the E.C.

The complexities were highlighted in a report presented just before the Colloquy's close on the third day by Dorotheé Van Iterson, a member of the International Commission of Civil Status (ICCS) at the Hague. In her opening she referred to the earlier presentation by her ICCS colleague, Henri Delvaux, who (in his paper comparing the legal approach within different countries) had highlighted the difference between cases that involve a non-retrospective change of birth certificate status and those where an amendment has taken place to correct an earlier error.

Even in the UK it is possible to alter a birth registration on the latter grounds. An early example was the case of Georgina Somerset, a hermaphrodite registered as a male in 1923 but who successfully had her birth certificate altered at the age of 34 when it was established that her development was essentially female. The fact that hers was a correction rather than an amendment to the birth certificate made the change possible and enabled her to go on and marry as a woman in 1962 in a way that would probably be recognised worldwide without much fuss.

Although she did not refer to this case herself, Dorotheé Van Iterson's paper highlighted the fact that the willingness of one country to ratify another's conventions on status changes depends on the nature of the change and the nationality of the applicant.  She pointed to reports that Sweden, for instance, which carries out alteration of documents for its' own citizens (and states a willingness to recognise the new status of foreigners when their status has been changed in their own country), apparently draws the line at accepting a Dutch ruling concerning one of their own nationals.  Germany, likewise, has stated that it would not recognise a foreign decision concerning an individual covered by German law.

A worse tangle concerns the willingness of states to recognise a marriage celebrated abroad where one of the parties is a Transsexual ... where the outcome depends on that state's recognition of the Transsexual his/herself and the public's attitude to Transsexual marriage. The treatment of an individual can therefore depend on whether their country of origin has completely obliterated official records of the Transsexual's former status.  Luxembourg, for instance, has observed that it would be obliged to allow the marriage of a couple if a Transsexual partner had never been married before and they came from Holland, since there would be no indication of the person's former status.  If, however, the person had been married in the earlier role (and there was therefore an official record of their former status) or the person came from a country whose official reclassification indicated both the old and new status, then public opinion would be against the union. In other words, there was a potential inequality stemming from the manner in which the person's change of status was recorded. (Sadly, nobody ever discusses the feelings of the other party in the matter of transsexual relationships, for they are deprived of rights too for no greater sin than loving another human being)

It is perhaps as well that Dorotheé Van Iterson's report was the last of seventeen presented in the Colloquy's three day agenda because by this point many delegates, their minds bombarded by the anomalies now in existence, were finding it hard to go on.

Some wondered whether all the intellectual effort was worthwhile. Wasn't it a lot of effort for such a statistically small number of people on the margin of normal society? When one speaker from the floor pointed out that, worldwide, that "small number" (in their various forms) added up to between fifty and sixty million people (or the entire population of France as she put it), some took the point.

Transsexuals are not in a position of their own making, but in a trap unintentionally laid for them by society's long held view that gonadal sex at birth represented the end of line for a person's gender development. Until recent research has begun to show otherwise it was reasonable to assume that, from the point of birth, there were no exceptions to nature's rules concerning personality development, other than those made by choice. Laws and conventions have been laid on the basis of this apparently self-evident observation and, although few examples of positive repression exist, Transsexuals have long experienced the de-facto repression resulting from the conflicts and ambiguities which their existence brings about.

Scientific research is, as always, ahead of the law and society in this area and many Transsexuals took away from the Colloquy the new knowledge that, if nothing else, their status is changing as more is understood about the way in which human beings develop and differentiate into male and female, man and woman.

The most significant medical observation in the three days was that it seems the brain goes on to develop on sex-dependent lines for as much as four years after birth.  So, just as it has been known for many years that the development of the internal and external genitals can go irreversibly in the "wrong" direction before birth (leading to hermaphroditism and all its' variations), the development of the brain can likewise, it seems, go off on a divergent course too, for one in 11,500 "males" and one in 30,000 "females".

Conditions such as Androgen Insensitivity and Testicular Feminisation (both of which result in XY males being classified and brought up as potentially happy, well adjusted and unarguably female women) and the XX-child equivalents are all statistically quite commonplace (each syndrome appearing in 1/1000 births). "Why then", asked Professor Louis Gooren, in his closing speech, "could the sensitive and compassionate treatment afforded these cases not be extended quite simply to those whose problems have a similar basis but whose late and less-obvious onset places them in the legal position they find themselves through no fault of their own?"

There was an air of agreement and compassion in the closing speeches of the Colloquy that none could have missed and which seemed to indicate that Transsexuals could perhaps take some comfort from the wartime words of Sir Winston Churchill, "... this is not the end, this is not even the beginning of the end, but it is the end of the beginning".

The professionals paid tribute to the patience and good humour of the Transsexuals who had attended. One presenter remarked that, through organisations such as the UK's Gender Trust, they were beginning to present themselves as a coherent and self-aware group of people fully able to participate in decision making regarding their status. Indeed Dr F.W. Hondius, the deputy Secretary General of the International Commission on Civil Status said that he would be recommending their active involvement when the ICCS came together soon to debate the issue.

The Transsexuals, in turn, were pleased too; not just for things said in their favour, but for the opportunity to meet and socialise with the people who might be able to achieve the thing they need above all, which is for their case to be taken seriously and treated compassionately.  Admittedly it's hard if you've grown up quite happy with your own genital-defined role to understand how someone might feel otherwise. Many Transsexuals describe the feeling of being "trapped" in the wrong body and go on to admit that they're as perplexed by that as an outsider.  When the conviction is held so strongly and consistently that even loss of family ties, job security, and civil status pale into insignificance and a "compromise" body alteration (with all its' problems) is preferable to continuing with the "wrong" life altogether, then it is time to ask whether they are really asking that much of society to be recognised in law for what they feel themselves to be in mind and soul.

Christine Burns, April 1993