Judicial Determination of the Sexual Identity of Post-Operative Transsexuals: A New Form of Sex Discrimination

Abstract

AbstractTranssexualism is a condition in which an individual's psychological gender is the opposite of his or her anatomical sex. A “sex-change” operation can bring anatomical sex into line with gender, but it cannot create a new biological sex capable of procreation. The operation is expensive, dangerous and lengthy, yet in 1983 there were an estimated 6,000 post-operative transsexuals in the United States. Certain European countries have legislation recognizing the post-operative transsexual's new sex. Case law in the United Kingdom and the United States, however, prevent post-operative transsexuals from gaining legal recognition. The author does see some hope, however, for a change in the trend against recognition of transsexuals’ post-operative sex. This Article discusses the reasons behind this trend and concludes that the greater danger would be a consensus of medical opinion holding that sex-change surgery is unnecessary, questioning the very existence of post-operative transsexuals. Finally, the author calls for legislative action to remove judicially-imposed obstacles and to give legal recognition to the postoperative transsexual's new sex and identity.