Legal aspects of transsexualism

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A person may be considered to be a transsexual person if their gender identity is incongruent with the sex they were assigned at birth, and consequently also with the gender role and social status that is typically associated with that sex. They may have, or may intend to establish, a new gender status that accords with their gender identity. Most legal jurisdictions recognise the two traditional gender identities and social roles, man and woman, but tend to exclude any other gender identities, and expressions. There is now a greater understanding of the breadth of variation outside the typical categories of 'man, and 'woman', and many self-descriptions are now entering the literature, including pan-gender, polygender, gender queer and non gender. Medically and socially the term 'transsexualism' is being replaced with 'gender dysphoria, and terms such as 'transgender people' and 'trans men and trans women' are replacing the narrow category of transsexual people.

This raises many legal issues and aspects of transsexualism. Most of these issues are generally considered a part of family law, especially the issues of marriage and the question of a transsexual person benefiting from a partner's insurance or social security.

The degree of legal recognition provided to transsexualism varies widely throughout the world. Many countries now legally recognise sex reassignments by permitting a change of legal gender on an individual's birth certificate. Many transsexual people have permanent surgery to change their body, Sexual Reassignment Sugery (SRS) or semi-permanently change their body by hormonal means, Hormone Replacement Therapy (HRT). In many countries, some of these modifications are required for legal recognition. In a few, the legal aspects are directly tied to health care; i.e. the same bodies or doctors decide whether a person can move forward in their treatment, and the subsequent processes automatically incorporate both matters.

In some jurisdictions, transgender people (who are considered non-transsexual) can benefit from the legal recognition given to transsexual people. In some countries, an explicit medical diagnosis of "transsexualism" is (at least formally) necessary. In others, a diagnosis of "gender dysphoria," or simply the fact that one has established a non-conforming gender role, can be sufficient for some or all of the legal recognition available. The DSM-V recognizes Gender Dysphoria as the official diagnoses.


Laws concerning gender identity-expression around the world.
  Legal identity change
  No legal identity change

A majority of countries in Europe give transsexual people the right to at least change their first name, most of which also provide a way of changing birth certificates. Several European countries recognize the right of transsexuals to marry in accordance with their post-operative sex. Croatia, Czech Republic, Denmark, Finland, France, Germany, Italy, the Netherlands, Norway, Poland, Portugal, Romania, Sweden, Spain, Turkey, and the United Kingdom all recognize this right.[citation needed] The Convention on the recognition of decisions regarding a sex change provides regulations for mutual recognition of sex change decisions and has been signed by five European countries and ratified by Spain and the Netherlands.


In France, there is currently no law that defines sex-change procedures. However, it is possible to ask for a sex- or a name change before the Court. The judge decides to grant or refuse the change.


The Transsexuellengesetz[edit]

Since 1980, Germany has a law that regulates the change of first names and legal gender. It is called "Gesetz über die Änderung der Vornamen und die Feststellung der Geschlechtszugehörigkeit in besonderen Fällen (de:Transsexuellengesetz – TSG)" (Law about the change of first name and determination of gender identity in special cases (Transsexual law – TSG)).

In Germany, as in many countries whose law is at least partly based on the Napoleonic Code, the first name had to be gender-specific. Since a ruling of the supreme Federal Constitutional Court of Germany in 2010, gender-neutral names can be accepted. One can either obtain a change of name alone, and proceed later with a change of legal gender, if possible or desired, or obtain both in a single legal procedure.

For both, two independent medical court experts have to be commissioned by the judge. They are asked to evaluate, whether

  • the person "does not identify with the birth-assigned sex/gender, [the German word Geschlecht can be used for both, sex and gender, alike; here, the law uses this imprecise wording] but with the other one", and
  • "feels a compulsion to live according to his/her ideas for at least three years", and
  • it is to be assumed with high propability, that the feeling of belonging to the other sex/gender ["Geschlecht"] is not going to change".

Usually, the court will rule according to those opinions.

The name change becomes legally void, if a child of his/her descent is born more than 300 days after name change, [1]

For the change of legal gender, it was also once required that the person

  • is permanently infertile, and
  • has had surgery through which their outer sexual characteristics are changed to a "significant approximation" to the appearance of their preferred biological sex.

These requirements were declared unconstitutional by supreme court ruling in a 2011.

Originally, the law stated that neither change of name nor legal gender were available for people under 25 years of age. This condition has been declared void by the courts, and today there is no minimum age. Until 2008, the person had to be unmarried.

The TSG applies only to German citizens; there are exceptions only for non-German citizens with very specific legal status, such as stateless people living legally in Germany, or in case the foreign state has no equivalent law, which would be in accordance with German constitution

Several court decisions have further specified several matters. For example, a person with only a name change has the right to be called "Herr" or "Frau" (Mr. or Mrs.) according to their first name, not their legal gender; similarly, documents have to be issued reflecting their actual gender identity, not legal gender. Job references, certifications and similar from the time before the change of name may be reissued with the new name, so effectively there is no way for a new employer to learn about the change of name and/or legal gender. Also, people with only a name change do not have to divulge their legal gender to employers.

Criticism of the "Transsexuellengesetz"[edit]

In the last couple of years, the TSG has come under intense criticism not only from the trans community, but also some medical caregivers. This criticism is directed against both the way the law is applied, especially concerning the way "expert opinions" are done, and the wording of the law itself.

Particularly the following parts of the TSG are criticised:

  • The fact that generally only German citizens can obtain papers reflecting the gender role they live in, resulting in significant problems for people living in Germany who are not German citizens.
  • The need for the court to call for two independent expert opinions.
  • These expert opinions can take more than a year to be completed
  • One risks a name change to become void, when a child of ones descent is born.
  • People who have only changed their name have a questionable legal status. While most of the time this is perfectly sufficient, there are several problems in specific situations, especially regarding to the Yogyakarta Principles (Principle 3 and 9). A person with only a name change ...
    • who is in hospital or prison has no right to be accommodated according to the gender role they live in, but can be housed according to their legal gender;
    • can enter a registered partnership with a person of the same legal gender (since 2001), but can not marry or enter any kind of legally secured partnership with a person of the opposite legal gender;

Some of the expert witnesses of the court (psychiatrists, psychologists, …) evaluate the movant according to psychiatric tests, ask for in-depth intimate details, or require to see the movant for a period of time to ascertain their evaluation of his/her sense of identification. These procedures can be costly, humiliating, and lengthy, with more than a year not being unusual. Still today, some expert witnesses also consider only traditional gender roles as valid for transsexual people, which is especially problematic for gynephilic transwomen or androphilic transmen.

Legally, there is no way to choose one's own expert witnesses. Since there are many regional differences, there is a certain amount of people, who (at least officially) moving to the circuit of courts, who are known to appoint proper experts. However, the general problems with expert opinions have led to demands to abandon these entirely, or at least to lower the required number to one. Many of this criticism applies also to expert opinions, letters of recommendation or similar papers regarding medical procedures. The same problems with hired professionals of the court occur in many other countries.

Legal aspects of medical treatment[edit]

Based on several court decisions, some dating back to the late 1970s, medical treatment of transsexualism (and in fact all gender identity disorders) has to be paid by health insurance, which is mandatory in Germany. Like all treatments that have to be paid for by health insurance, "medical necessity" has to be shown in each particular case. This can result in rather lengthy procedures, although this is not always the case. Likewise, the less "medical necessity" can be shown, the more difficult it becomes to get coverage. This is particularly true for surgeries like Facial Feminization Surgery, but also occasionally for more necessary matters as the construction of a clitoris.

The regulation of coverage of medical costs is formally unrelated to the TSG; in practice, there can be overlaps, for example with expert opinions.

Republic of Ireland[edit]

In the Republic of Ireland, it is not possible for a transsexual person to alter their birth certificate. A case was taken in the High Court by Lydia Foy in 2002, which saw her case being turned down as a birth certificate was deemed to be an historical document.[2] Even so, it is currently possible for anyone to undertake a change of name either through common usage or through a deed of change of name, but this does not amount to legal recognition and transgender persons cannot marry or enter into a civil partnership in their acquired gender.

Foy had taken new proceedings to the High Court relying on the decisions of the European Court of Human Rights in the Goodwin and 'I' cases. Her application was heard between 17 and 26 April 2007, and judgment was reserved. Judgment was given in the High Court on 19 October 2007. The Judge held that the Irish State had failed to respect Foy's rights under Article 8 of the European Convention on Human Rights by not providing any mechanism for her to obtain a new birth certificate in her female gender. He indicated that he would grant a declaration that Irish law in this area was incompatible with the Convention. He also said he would have found that her right to marry under Article 12 of the Convention had been infringed as well if that had been relevant. On 14 February 2008. the Judge granted a declaration that sections of the Civil Registration Act 2004 were incompatible with Article 8 of the Convention. This was the first declaration of incompatibility made under the European Convention of Human Rights Act passed in 2003.[3]

The Government appealed this decision but dropped its appeal in June 2010 and set up an advisory group of civil servants to make recommendations for new legislation. The advisory group's report was publshed in July 2011 [4] but there was controversy over some of its recommendations, notably that married transgender persons would have to divorce before they could be recognised in their acquired gender. At the launch of the report the Minister responsible stated that the Government would introduce gender recognition legislation as soon as possible.[5] No legislation had been introduced by February 2013 and Foy issued new proceedings in the High Court, seeking a declaration that the State was obliged to issue her with a new birth certificate in her female gender, or, alternatively, that the State was in breach of the Irish Constitution or the European Convention on Human Rights because it had failed to provide her with an effective remedy for the violation of her rights [6]


Anna Grodzka, the first transsexual MP in Europe[7]

The first milestone sentence in the case of gender shifting was given by Warsaw's Voivode Court in 1964. The court reasoned that it be possible, in face of civil procedure and acting on civil registry records, to change one's legal gender after their genital reassignment surgery had been conducted. In 1983, the Supreme Court ruled that in some cases, when the attributes of the individual's preferred gender were predominant, it is possible to change one's legal gender even before genital reassignment surgery.[8]

Although in the Polish legal system there is not any specific institution or act considering it, the right to change one's legal gender is generally recognized. Article 189 of Polish Civil Procedure Code allows an individual to ask court to determine their right or legal relations in many contexts, including gender and civil registry records. On the grounds of this provision, Polish courts often approve legal claims for modyfing registry records, name and all other public documents. At the same time, it is practically necessary that the court should be provided with medical evidences of one's transsexuality.[citation needed]

In 2011, Anna Grodzka, the first transsexual MP in the history of Europe who underwent a sex-change operation was appointed. In the Polish Parliamentary Election 2011 she gained 19 337 votes (45 079 voted for her party in the constituency) in the City of Cracow and came sixth [9] in her electoral district (928 914 people, voter turnout 55,75%). Grodzka is reportedly the only transsexual person with ministerial responsibilities in the world since 10 November 2011.


In Romania, it is legal for transgender people to change their first name to reflect their gender identity, based on personal choice. Since 1996, it is also possible for someone who has gone through genital reassignment surgery to change their legal gender in order to reflect their post-operative sex. Transsexuals then have the right to marry in accordance with their post-operative sex.[10]


Since 15 March 2007, a new law in Spain allows transsexual people to modify their name and legal gender in all public documents and records on the basis of a personal request, regardless of whether they have received genital reassignment surgery or not. However, medical (hormonal) treatment for at least two years and a diagnosis of gender dysphoria are both prerequisites. The hormonal treatment is not a prerequisite if there are reasons, relating to health or age, not to follow it.[citation needed]

United Kingdom[edit]

Historically in the United Kingdom, transsexual people have succeeded in having their birth certificates changed and marriages conducted. This was first legally challenged in the 1960s, in the case of Ross Alexander, where the Court of Session ruled that the certificate change was legitimate for the purposes of inheriting a title, a decision later upheld by the Home Secretary. However, the case was held secretly and in a Scottish court, and there was not a publicly reported case in an English court until 1970.[11] That year, in the case of Corbett v Corbett, Arthur Corbett attempted to annul his marriage to April Ashley on the grounds that transsexuals were not recognised by English law. It was decided that, for the purposes of marriage, a post-operative transsexual was considered to be of the sex they were assigned at birth.[12]

This set the precedent for the coming decades. People who thought that they had existing valid marriages, turned out not to, and the previous unofficial changing of birth certificates was stopped.[citation needed] Even so, transsexual people were able to change their names freely, to have their passports and driving licences altered, to have their National Insurance details changed, and so forth,[citation needed] and the Sex Discrimination Act 1975 made it illegal to discriminate on the ground of anatomical sex in employment, education and the provision of housing, goods, facilities and services.[13]

In the 1980s and 1990s the pressure group, Press for Change, campaigned in support for transgender and transsexual people to be allowed to marry,[14] and helped people take several cases to the European Court of Human Rights.[15] In Rees v. United Kingdom (1986), it was decided that the UK was not violating any human rights,[16] but that they should keep the situation under review.[citation needed] The Sex Discrimination (Gender Reassignment) Regulations 1999 extended the existing Sex Discrimination Act, and made it illegal to discriminate against any person on the grounds of gender reassignment, but only in the areas of employment and vocational training.[13]

In the 2002 case Goodwin v. United Kingdom, it was decided that the rights to privacy and family life were being infringed. In response to its obligation, the UK Parliament passed the Gender Recognition Act 2004, which effectively granted full legal recognition for transgender people.[13]

The Equality Act 2006 also introduced the Gender Equality Duty in Scotland, which made public bodies obligated to take seriously the threat of harassment or discrimination of transsexual individuals in various situations. In 2008, the Sex Discrimination (Amendment of Legislation) Regulations 2008 extended existing regulation to make it illegal to discriminate when providing goods or services to transsexual individuals. The definition of "transsexual" used in the Gender Equality Duty is still technically the same as that in the Sexual Discrimination Act, but this legislation was also taken to mean to prevent discrimination against all transgender individuals.[13]

The Equality Act 2010 officially adds "gender reassignment" as a "protected characteristic," stating that:

A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex.[17]

Some trans rights activists, such as Transgender Equality & Rights in Scotland, advocate adding the category of "gender identity" "in order to be more clearly inclusive of those transgender people who do not identify as transsexual and do not intend to change the gender in which they live". They also want to introduce measures that would more explicitly include intersex people and clarify protections from discrimination in education, certain kinds of employment, and medical insurance.[18]

As of 2010, the Green Party supports a reform of the Mental Health Act in order to remove transgender people from the Psychiatric Disorder Register, which they view as discriminatory.[19]

In contrast to some systems elsewhere in the world, the Gender Recognition process does not require applicants to be post-operative. They need only demonstrate that they have suffered gender dysphoria, and have lived as "your new gender" for two years, and intend to continue doing so until death.[20]


South Africa[edit]

The Constitution of South Africa forbids discrimination on the basis of sex, gender and sexual orientation (amongst other grounds). The Constitutional Court has indicated that "sexual orientation" includes transsexuality.[21]

In 2003 Parliament enacted the Alteration of Sex Description and Sex Status Act, which allows a transgender person who has undergone medical or surgical gender reassignment to apply to the Department of Home Affairs to have the sex description altered on their birth record. Once the birth record is altered they can be issued with a new birth certificate and identity document, and are considered "for all purposes" to be of the new sex.[22]

The specific definition of gender reassignment in this Act refers to reassigning a person's sex by changing physiological or other sexual characteristics, and includes any part of such a process. Thus the transgender person is not required to have had genital surgery in order to have the sex description altered.

The application must be accompanied by:

  • the birth certificate of the applicant;
  • in the case of a person whose sexual characteristics have been altered by surgical or medical treatment resulting in gender reassignment, be accompanied by reports stating the nature and results of any procedures carried out and any treatment applied prepared by the medical practitioners who carried out the procedures and applied the treatment or by a medical practitioner with experience in the carrying out of such procedures and the application of such treatment;
  • in every case in which sexual characteristics have been altered resulting in gender reassignment, be accompanied by a report, prepared by a medical practitioner who has medically examined the applicant in order to establish his or her sexual characteristics

Intersexed persons may equally apply to the Department of Home Affairs to have the sex description altered on their birth record. The application has to be accompanied by reports stating the nature and results of any procedures carried out, if any. The act indicates that the intersex person is not obliged to have had hormonal, surgical or medical intervention. The application needs to be accompanied by reports from a medical practitioner indicating that the person is intersex as well as a report from a qualified psychologist or social worker corroborating that the applicant is living and has lived stably and satisfactorily,for an unbroken period of at least two years, in the gender role corresponding to the sex description under which he or she seeks to be registered.[citation needed]



Jurisdiction over legal classification of characteristic sex in Canada is assigned to the provinces and territories. This includes legal change of gender classification, for which the requirements vary from one sub-federal jurisdiction to another.

Canada'a Parliament is considering Bill C-279 <> which would amend both the Canadian Human Rights Act and Criminal Code to include protection of gender identity.

In the Bill “gender identity” means, in respect of an individual, the individual’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex that the individual was assigned at birth.

The Bill passed the House of Commons, and is before the Canadian Senate as of June 17, 2013.<>

United States[edit]

Pursuant to the U.S. Const., Amend. 10, which reserves to the states (or to the people) all powers not assigned to the federal government, the legal classification of characteristic sex is state jurisdiction in the United States. The principle is generally extended to the District of Columbia and U.S. territories, though the federal government has power to overrule any decision those non-state entities might make. Thus, the legal gender of a transsexual (as well as a transsex or intersex) individual in the United States does not have one answer but 56 answers – one for each state, the District of Columbia, and the five inhabited territories (American Samoa, Guam, the Northern Marianas Islands, Puerto Rico, and the US Virgin Islands).


In 2012 the Argentine Congress passed the Ley de Género (Gender Law),[23] which allows individuals over 18 to change the gender marker in their DNI (national ID) on the basis of a written declaration only. Argentina thus became the first country to adopt a gender recognition policy based entirely on individual autonomy, without any requirement for third party diagnosis, surgeries or obstacles of any type.


Hong Kong[edit]

The Court of Final Appeal of Hong Kong ruled that a transsexual woman has the right to marry her boyfriend. The ruling was made on the 13th of May, 2013.[24][25]

On 16 September 2013, a Colombian transgender woman coming from Taiwan claimed that she was discriminated and sexually abused by the customs officers, including being subjected to invasive body searches and denied usage of a female toilet, although Hong Kong officers denied the allegations.[26][27] After being released, she applied for and was granted refugee status by the United Nations High Commissioner for Refugees (UNHCR), rendering her effectively stateless awaiting acceptance to a third country.[28][29]


On 10 July 2003, the National Diet of Japan unanimously approved a new law that enables transsexual people to amend their legal sex. It is called “性同一性障害者の性別の取扱いの特例に関する法律" (Act on Special Cases in Handling Gender for People with Gender Identity Disorder)[30][31][32] The law, effective on 16 July 2004, however, has controversial conditions which demand the applicants be both unmarried and childless. On 28 July 2004, Naha Family Court in Okinawa Prefecture returned a verdict to a transsexual woman in her 20's, allowing her family registry record or koseki to be amended as she was born a female. It is generally believed to be the first court approval under the new law.[33][34] Despite the fact that sex reassignment surgery and hormone replacement therapy are mandatory for a legal sex change, it is not paid for by national health insurance.


There is no legislation expressly allowing transsexuals to legally change their gender in Malaysia. The relevant legislations are the Births and Deaths Registration Act 1957 and National Registration Act 1959. Therefore, judges currently exercise their discretion in interpreting the law and defining the gender. There are conflicting decisions on this matter. There is a case in 2003 where the court allowed a transsexual to change her gender indicated in the identity card, and granted a declaration that she is a female.[35][36] However, in 2005, in another case, the court refused to amend the gender of a transsexual in the identity card and birth certificate.[35] Both cases applied the United Kingdom case of Corbett v Corbett in defining legal gender.


The Supreme Court of the Philippines Justice Leonardo Quisumbing on 12 September 2008, allowed Jennifer Cagandahan, 27, to change both his birth certificate, gender and name from Jennifer to Jeff, to male: “We respect respondent’s congenital condition and his mature decision to be a male. Life is already difficult for the ordinary person. We cannot but respect how respondent deals with his unordinary state and thus help make his life easier, considering the unique circumstances in this case. In the absence of a law on the matter, the court will not dictate on respondent concerning a matter so innately private as one’s sexuality and lifestyle preferences, much less on whether or not to undergo medical treatment to reverse the male tendency due to rare medical condition, congenital adrenal hyperplasia. In the absence of evidence that respondent is an ‘incompetent’ and in the absence of evidence to show that classifying respondent as a male will harm other members of society ... the court affirms as valid and justified the respondent’s position and his personal judgment of being a male." Court records showed that – at 6, he had small ovaries; at 13, his ovarian structure was minimized and he had no breasts and did not menstruate. The psychiatrist testified that "he has both male and female sex organs, but was genetically female, and that since his body secreted male hormones, his female organs did not develop normally." The Philippines National Institutes of Health said "people with congenital adrenal hyperplasia lack an enzyme needed by the adrenal gland to make the hormones cortisol and aldosterone.[37][38][39]

This, however, applies only to cases involving congenital adrenal hyperplasia and other intersex situations. The Philippine Supreme Court has also ruled that Filipino citizens do not have the right to legally change their sex on official documents (driver's license, passport, birth certificate, Social Security records, etc.) if they are transsexual and have undergone sexual reassignment surgery.[40] The Court said that if the man, now anatomically a female, were to be allowed to legally change his sex it would have “serious and wide-ranging legal and public policy consequences,” citing the institution of marriage in particular.[41]

South Korea[edit]

In South Korea, it is possible for transgender individuals to change their legal gender, although it depends on the decision of the judge for each case. Since the 1990s, however, it has been approved in most of the cases. The legal system in Korea does not prevent marriage once a person has changed their legal gender.

In 2006, the Supreme Court of Korea ruled that transsexuals have the right to alter their legal papers to reflect their reassigned sex. A trans woman can be registered, not only as female, but also as being 'born as a woman'.

While same-sex marriage is not approved by South Korean law, a transsexual woman obtains the marital status of 'female' automatically when she marries to a man, even if she has previously been a 'male' on paper.

In 2013 a court ruled that transsexuals can change their legal sex without undergoing genital surgery.[42]



Birth Certificates[edit]

Estelle Asmodelle was Australia's first legal transsexual with the Births, Deaths and Marriages Dept. (NSW Government). As cited by (18 June 1987 – Australian Telegraph Newspaper.) This was the first time in Australian law history that an adult transsexual was permitted to change their birth certificate to a different sex and soon afterwards the passport law also changed allowing transsexuals to be issued passports with the new sex depicted.

Australia is now one of only a few countries where legal status of the new sex following sex affirmation surgery is granted via a new full birth certificate. Birth certificates are within the jurisdiction of the states, whereas marriage and passports are matters for the Commonwealth. All Australian jurisdictions now recognise the affirmed sex of an individual after surgery unless the person is married.[43]

In the landmark case New South Wales Registrar of Births, Deaths and Marriages v Norrie [2014] the High Court of Australia held that the Births Deaths and Marriages Registration Act 1995 (NSW) did not require that a person who, having undergone a sex affirmation procedure, must identify as either a man or a woman. Rather, the Court refuted the binary notion of sex, and the held that the Act itself recognises that a person may be other than male or female and therefore permits the registration of "non-specific".[44]


Re Kevin - validity of marriage of transsexual ([2001] FamCA 1074) is a groundbreaking judgment of the Family Court of Australia, concerning both transsexualism as a phenomenon, the human rights of those who experience transsexualism and the right of people who have experienced transsexualism to enter into a legally valid marriage.

Kevin, an affirmed male, married Jennifer before the case started. Prior to the marriage Kevin had affirmed his male sexual identity by underging hormonal and other sex affirmation treatment; including a double mastectomy and full hysterectomy but not the construction of a phallus. His legal sex had been changed on his birth certificate and other documentation and since his affirmation of his male sex (including as at the time of his marriage and the trial) he had lived in the Australian culture and community as a male.

When the Attorney General for the Commonwealth of Australia advised the couple through his department that in his considered opinion their marriage was not a legally valid one and that the couple (or at least Kevin) was liable to be prosecuted and possibly imprisoned, the couple sought the legal advice and representation of Australian lawyer Rachael Wallbank,[45] herself an affirmed female, and commenced proceedings in the Family Court of Australia against the Attorney General for the Commonwealth of Australia to have their marriage declared legally valid.

The question to be determined by the court was whether Kevin was a man for the purposes of the marriage law of Australia and, hence, whether the marriage ceremony he had undertaken with Jennifer was a valid one. Further, at the time of the trial the couple had one child as a result of approved assisted technology. Their second child was born at the time of the hearing of the appeal proceedings. English law had previously decided, in the case of Corbett v Corbett (1971), that sex affirmation including genital reassignment/rehabilitation surgery (then and sometimes still geniticentrically called "Sex Reassignment Surgery") would not be recognized for purposes of marriage. That decision had been generally followed throughout the world; including the United States of America. Justice Richard Chisholm (the judge in Re Kevin) found fault with both the legal bases and internal logic of this decision and held it did not bind or represent Australian law.

Significantly, Justice Chisholm found that the extensive international and Australian expert evidence in Re Kevin did not support the primary "factual" proposition in the Corbett decision that a causal (and hence legal) distinction could and should be made between the natural variations in human sexual formation sometimes called "intersex" (in Corbett and other similar decisions said to have a biological causation) and transsexualism (in Corbett and other similar decisions said to be a psychological disorder). Chisholm J found that on the balance of expert evidence, both as presented in Re Kevin and generally in cases throughout the world dealing with the issue, no such factual distinction was possible and that transsexualism was an example of natural intersexual diversity in human sexual formation and not a psychological disorder or illness.

Justice Chisholm stated that to determine a person's sex for the purpose of the law of marriage in Australia all relevant matters need to be considered, including: the person's biological and physical characteristics at birth (including gonads, genitals and chromosomes); the person's life experiences, including the sex in which he or she is brought up and the person's attitude to it; the person's self-perception as a man or woman; the extent to which the person has functioned in society as a man or a woman; any hormonal, surgical or other medical sex affirmation (including genital reassignment/rehabilitation) treatments the person has undergone, and the consequences of such treatment as well as the person's biological, psychological and physical characteristics at the time of the marriage, including (if they can be identified) any biological features of the person's brain that are associated with a particular sex.

His Honour stated that it is clear from the Australian authorities that "post-operative transsexuals" will normally be members of their affirmed sex. Holding that the sex of a person for the purposes of marriage is their sex at the time of the marriage, the judgement found Kevin to be a man within the ordinary everyday meaning of the word in Australian life and declared the marriage between Kevin and Jennifer to be valid. The Attorney-General appealed.

The Full Court of the Family Court, upholding the decision at first instance, determined that the reasoning of the Family Division of the UK High Court in W v W, an intersex marriage case, was a correct statement of the law in Australia and that people with transsexualism, like others with intersex conditions, should be able to choose their sex, affirm it and marry as a member of that sex.

Re Kevin has been subsequently extensively quoted and relied upon in international jurisprudence (including in the United States of America and in the European Court of Human Rights) concerning the civil and human rights of people who experience transsexualism; including young people with transsexualism who are still regularly deprived of their right to affirm their innate sex without being punished by family and culture, change their legal sex in order to make it intelligably consistent with their affirmed/lived sex as well as being able to freely access medically approved sex affirmation treatment.[citation needed]


Passports are issued in the preferred gender, without requiring a change to birth certificates or citizenship certificates. A letter is needed from a medical practitioner which certifies that the person has had or is receiving appropriate treatment for transition.[46]

See also[edit]


  • Chow, Melinda. (2005). "Smith v. City of Salem: Transgendered Jurisprudence and an Expanding Meaning of Sex Discrimination under Title VII". Harvard Journal of Law & Gender. Vol. 28. Winter. 207.
  • Transgender Rights. (2006). Edited by Paisley Currah, Richard M. Juang and Shannon Price Minter. Minneapolis: University of Minnesota Press. [2]
  • Sellers, Mitchell D. 2011. "Discrimination and the Transgender Population: A Description of Local Government Policies that Protect Gender Identity or Expression". Applied Research Projects, Texas State University-San Marcos. Paper 360.


  1. ^ Transsexuellengesetz vom 10. September 1980 (BGBl. I S. 1654), das zuletzt durch Artikel 1 des Gesetzes vom 17. Juli 2009 (BGBl. I S. 1978) geändert worden ist, §7; BVerfGE v. 6.12.2005; 2006 I 276 - 1 BvL 3/03
  2. ^
  3. ^ "Foy v. An t-Ard Chlaraitheoir & Others 2007 IEHC 470" ( 19 October 2007.
  4. ^ "Report of the Gender Recognition Advisory Group" ( Department of Social Protection. 15 June 2011. Retrieved 4 March 2013.
  5. ^ "Gender recognition legislation move 'a step along the way'" ( Irish Examiner. 15 July 2011. Retrieved 4 March 2013.
  6. ^ "Transgender woman to sue over birth certificate delay" ( The Irish Times. 27 February 2013. Retrieved 4 March 2013. "Dentist in new gender legal bid" (http:/ Irish Examiner. 28 February 2013. Retrieved 4 March 2013.
  7. ^
  8. ^ see for example: T. Smyczynski, Prawo rodzinne i opiekuńcze, C.H. Beck 2005
  9. ^
  10. ^ "Transsexualismul in Romania". Accept Romania. Retrieved 2 December 2012. 
  11. ^ Playdon, Zoe-Jane (1996). "The Case of Ewan Forbes". Press for Change. Archived from the original on 2 December 2008. Retrieved 9 November 2008. 
  12. ^ Associated Press (3 February 1970). Judge in Britain Rules Surgery Cannot Alter a Person's Sex. New York Times
  13. ^ a b c d "Transgender: what the law says". Equality and Human Rights Commission. Retrieved 5 April 2015. 
  14. ^ "British transsexuals to get right to get married". The New Zealand Herald. 10 December 2002. Retrieved 5 April 2015. 
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  17. ^ "Equality Act 2010". The National Archives. 2010. Retrieved 5 April 2015. 
  18. ^ "Equality Act 2010". Transgender Equality & Rights in Scotland. Retrieved 5 April 2015. 
  19. ^ "Greens to launch LGBT general election manifesto". Green Party. 24 February 2010. Retrieved 1 April 2015. 
  20. ^ "Applying for a Gender Recognition Certificate". The UK Government. Retrieved 5 April 2015. 
  21. ^ De Vos, Pierre (14 July 2010). "Christine, give them hell!". Constitutionally Speaking. Retrieved 12 July 2011. 
  22. ^ Alteration of Sex Description and Sex Status Act, 2003. Parliament of South Africa, 15 March 2004.
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  24. ^ Chan, Kelvin. "HK Transgender Woman Wins Legal Battle to Marry". ABC News. Retrieved 13 May 2013. 
  25. ^ "Hong Kong court supports transsexual right to wed". BBC News. Retrieved 13 May 2013. 
  26. ^ "Hong Kong customs officers behaved 'like animals' during body search", South China Morning Post, 1 November 2013, retrieved 2 Feb 2014 
  27. ^ Trans woman subjected to invasive search at Hong Kong airport, 1 November 2013, retrieved 2 Feb 2014 
  28. ^ "為換護照慘失國籍失學位失尊嚴 被海關當畜牲 跨性別博士來港 三失不是人 (A want to change her passport costed her nationality, degree and dignity - Treated by customs like an animal - Transgender doctorate student came to Hong Kong and lost everything)", Apple Daily, 1 November 2013, retrieved 2 Feb 2014 
  29. ^ "Transgender refugee goes through 'hell' in Hong Kong to be recognised as a woman", South China Morning Post, 3 April 2014, retrieved 16 April 2014 
  30. ^
  31. ^ 性同一性障害者の性別の取扱いの特例に関する法律 e-Gov – Ministry of Internal Affairs and Communications, Japan (Japanese)
  32. ^ Act on Special Cases in Handling Gender for People with Gender Identity Disorder Japanese Law Translation – Ministry of Justice, Japan
  33. ^
  34. ^
  35. ^ a b "JeffreyJessie: Recognising Transsexuals", The Malaysian Bar. Retrieved 21 August 2007.
  36. ^ J.G v. Pengarah Jabatan Pendaftaran Negara
  37. ^, Call him Jeff, says SC; he used to be called Jennifer
  38. ^, Woman's body 'naturally' became male[dead link]
  39. ^, Rare Condition Turns Woman Into Man
  40. ^
  41. ^
  42. ^
  43. ^ Births, Deaths and Marriages Registration Act 1995 (NSW) s 32B
  44. ^
  45. ^ See [1] for useful commentary on Re Kevin and further case references.
  46. ^

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