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The American Journal of Forensic Medicine and Pathology

24(1):100 105, 2003.

2003 by Lippincott Williams & Wilkins, Inc., Philadelphia

Medical Advances in Transsexualism and the Legal Implications


Dasari Harish,
M.D.,

and B. R. Sharma,

M .D .

Transsexualism is a condition wherein an individuals psychological gender is the opposite of his or her anatomic sex. The general belief now among behavioral scientists and physicians is that it is an identifiable and incapacitating disease, which can be diagnosed and successfully treated by reassignment surgery in carefully selected patients. Although many advances have been made in the reassignment surgery techniques, phalloplasty still remains a major challenge; to date, no ideal technique has been developed. The new gender created by the reassignment surgery has, in turn, led to many legal complications for postoperative transsexuals because states and the judiciary have not recognized the new gender. However, with wider acceptance of transsexuals by society, this outlook has changed for the better, with many states amending their laws in accordance with the advances in medical sciences. But in many developed and the developing countries, transsexuals are not given a legal identity, thereby adding to their agonies and miseries. Key Words: TranssexualismGender identitySexual reassignment.

Manuscript received May 20, 2002; accepted September 11, 2002. From the Department of Forensic Medicine, Government Medical College, Chandigarh, India. Address correspondence and reprint requests to Dr. B. R. Sharma, #1156-B, Sector 32-B, Chandigarh 160047, India; e-mail: drbrsharma@yahoo.com

The latter half of the 20th century has seen tremendous advancements in the medical sciences. This in turn has led to complex situations and given rise to several legal issues. Advances like artificial insemination, test-tube babies, organ transplantation, and now sex change operations and cloning have raised conflicts between the scientific advances and existing laws. Transsexualism is a condition characterized by the feeling that one was born into a body of the wrong sex. It is marked by the desire, from an early age, to be a person of the opposite sex. Affected persons believe that they are members of the opposite sex who are trapped in the wrong bodies. It has also been described as an unwavering feeling that one belongs to the other sex and that one is the victim of an error of nature. It usually results in an intense and constant desire to change ones bodily morphology and identity (1). The desire to change sex is obsessive and may lead to self-mutilation. The patient does not find any peace until his or her body undergoes radical transformation. The condition has also been described as a passionate, lifelong conviction that ones psychological genderthat indefinable feeling of maleness or femalenessis opposite to ones anatomic sex (2). Roberto, reviewing an extensive literature, concluded that the clinical definition of adult transsexualism is based on a composite set of characteristics . . . the belief that one is a member of the opposite sex . . . dressing and behaving in the opposite gender role . . . perceiving oneself as a heterosexual although sexual partners are anatomically identical . . . repugnance for ones own genitals and the wish to transform them . . . and a persistent desire for conversion surgery (3). The difference between the physical reality of the body and the gender of the mind in these patients often leads to a lack of psychosocial wholeness and a failure to integrate socially (4). Money and Gaskin (5) defined the condition as a disturbance of gender identity in which the person manifests, with constant and persistent conviction, the desire to live as a member of the opposite sex and progressively takes steps to live in the opposite sex role, full time. Such 100

MEDICAL AND LEGAL ASPECTS OF TRANSSEXUALISM a person is not to be confused with the transvestite, homosexual, effeminate male, or psychopath. Most transsexual people experience persistent disharmony with their gender roles, and the pursuit of role reversal is a defining characteristic (6). The broad name given to such disorders is gender identity disorders, as defined in the Diagnostic and Statistical Manual of Mental Disorders: DSM-IV (7). The DSM-IV defines gender identity disorders as a heterogeneous group of disorders whose common feature is a strong and persistent preference for the status and role of the opposite sex. These disorders may be manifested verbally, in the assertion that one properly belongs to the opposite sex, or nonverbally, in cross-sex behavior (8). The affective component of the gender identity disorder is known as gender dysphoria. It is characterized by discontentment with ones biologic sex, the desire to possess the body of the opposite sex, and a wish to be regarded as the member of the opposite sex. Extreme forms of this behavior are grouped under transsexualism. INCIDENCE Abraham (9) described the first sex change operation on a transsexual patient, though this was not the first use of surgery to relieve the agonies of persons with irreversible gender dysphorias. Diaries of the 17th century speak of two instances of crude self-inflicted operations as giving great and subjective relief (10). Still earlier, Hippocrates identified the illness of Scythians in men who preferred to live as women (11). Transsexualism became popular with the sex change operation of George Jorgensen to Christine Jorgensen in 1952, in one of the first reassignment surgeries of modern times, performed by Paul Fogh-Anderson, a plastic surgeon in Copenhagen (12,13). Christine Jorgensen then returned to the United States and, for nearly three decades, crusaded for the cause of transsexuals (14). Harry Benjamins revolutionary book in 1966, and the introduction of sex-reassignment surgery at the John Hopkins Hospital in the same year, legitimized this treatment (8). Male-to-female transsexualism is reported more often than female-to-male transsexualism (15). The reported gender ratios vary from 8:1 (16) to 2:1 (17), including a cross-cultural study between Sweden and Australia (18). Parents usually report that cross-gender behavior has been apparent before the age of 3 years (8). In adults, the prevalence in a study conducted in the United Kingdom, Sweden, and Australia was reported to be 1 in 50,000 (8,19). In children, the ratio is five boys referred for each girl referred (8), perhaps because parents may be more concerned about sissies than about tomboyish behavior, or because of more ridicule and stigmatization from peers. However, in childhood, transsexualism is

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rare in boys, and the majority of such boys monitored into early adulthood have so far shown homosexual rather than transsexual identities (19, 20). In adults, the preponderance of male-to-female transsexualism may be due to the greater publicity given to male-female transsexuals and to the greater success of vaginoplasty, as compared with phalloplasty. Usually, adult males seek treatment at the age of 30, even though the prodromal features of the disorder were present before puberty (21). GENESIS Many theories have been put forward to explain the syndrome. They include genetic or hormonal influences, psychosocial problems, social learning theories, and psychoanalytical theories. But the very existence of so many theories exemplifies that the genesis of the syndrome is not properly understood. The cause of transsexualism is still a mystery. In fact, nothing of its cause is known for certain. No physical laboratory test shows transsexuals to be consistently different hormonally, chromosomally, or morphologically; no mental tests show any consistent psychodynamic pattern (5). However, no true transsexual has yet been persuaded, bullied, drugged, analyzed, shamed, ridiculed, or electrically shocked into an acceptance of his or her physique. It is an immutable state (22). Even though for years in the future many may argue about the causes and nature of transsexualism, no one can deny that this is an identifiable, severe, and incapacitating disease (10), a pathologic condition, which is undesirable both for the patients and for the society (23). MANAGEMENT The management of transsexualism is one of the most demanding challenges in clinical sexology, requiring the collaboration of behavioral, endocrinologic, and surgical specialists, working as a team. The work of the behavioral scientist, whether a psychologist or a psychiatrist, is the most time consuming. It is highly unlikely that a transsexual person will seek help to reduce or eliminate his or her transsexual feelings (24). The behavioral scientist is the main person to identify patients with gender identity disorders (4) and, along with the physician recommending hormone therapy and the surgeon who accepts the patient for gender reassignment surgery, shares equal responsibility for the selection of the patient and the final outcome of the assigned treatment. The usual protocol for management of a transsexual condition is hormone therapy, followed by or simultaneously with facial hair electrolysis and reassignment surgery. Many studies have shown that with careful
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D. HARISH AND B. R. SHARMA surgical reassignment will be beneficial. The patients human immunodeficiency virus status should be tested preoperatively, but a seropositive patient should not be discriminated against solely on that basis, because his or her expectation of life and particularly the quality of it cannot be truly assessed. However, in the case of a patient with AIDS, surgical intervention may not be done (4). While reviewing the follow-up literature of sex-reassignment surgery, Green and Fleming (30) concluded that preoperative factors indicating a favorable outcome include (1) a reasonable degree of psychological stability, with no history of psychosis; (2) successful adaptation in the desired role for at least 1 year, with convincing physical appearance and behavior; (3) sufficient understanding of the limitations and consequences of the surgery; and (4) preoperative psychotherapy in the context of a gender identity program. Hormonal Therapy Hormonal therapy is an important prerequisite, both diagnostically and esthetically, because it enables both the patient and the doctor to take time to see the patients psychological adaptability to the changing appearance. For the female patient, depotestosterone is administered every alternate week, at least 6 months preoperatively and indefinitely postoperatively (31). Oral preparations are deactivated in the liver and may cause jaundice. The effects of testosterone include suppression of the ovarian hormones estradiol and progesterone, thickening of the vocal cords, coarsening of the skin, and the development of acne. Complications such as diabetes, hyperlipidemia, electrolyte disturbances, abnormal liver function test results, male pattern baldness, growth arrest, cor pulmonale, and sleep apnea need to be closely monitored. These patients also gain weight and have generalized body hair growth, which is often luxuriant. For the male patient, depo preparations of estrogens (possibly combined with progestogens) are given, the schedule being same as that for female patients. Estrogens induce breast growth, redistribution of body fat along female lines, changes in skin texture, and slowing of the growth of facial and body hair. They may suppress sexual interest and response. Androgens given to female transsexuals increase their libido (24). Surgical Reassignment After a minimum of 6 months of hormonal therapy and facial electrolysis, the decision to use surgery should be made only when the surgeon is absolutely sure that the individual has the psychological and physical attributesi.e., the outward appearanceto adapt successfully. The categories of surgical reassignment are shown in Table 1 (Table 1).

selection of patients and special care, many transsexuals have benefited from such reassignment (3,4,8,10,15,25). The Henry Benjamin International Gender Dysphoria Association (HBIGDA), formed in 1978, has established the essential prerequisites for this protocol. These standards of care, which were first drafted in 1979 and were revised in 1980, 1981, and 1990, have been accepted worldwide. They contain the criteria for diagnosis, hormonal and surgical sex reassignment, and the postoperative services to be provided (26,27). For a diagnosis of gender dysphoria, the following criteria must be fulfilled (28): Two social scientists, one of whom must be a behavioral psychiatrist with an M.D. or the equivalent and the other may be a psychologist with a Ph.D. or the equivalent, must participate in the diagnosis. Their recommendations must be in writing. One of them must have known the patient in a diagnostic or therapeutic relationship for at least 6 months. It must be established that the patient has had uninterrupted and unchangeable feelings of being in the wrong body for more than 2 years. The patient should have had a successful crossliving test over a 1-year period, which includes legal, social, and sexual success. Before any hormonal/surgical gender reassignment is contemplated, appropriate monitoring of the medical conditions, as well as the effects of the hormones on the various systems, should be accomplished with appropriate documentation. An endocrinologist, preferably a member of the same gender dysphoria team, should be entrusted with this task. When these diagnostic prerequisites have been wholly and completely met, the rearrangement of the body towards its new sexual appearance can be performed on those subjects whose true or, most appropriate, gender has been determined to be different from their present sexual appearance (4). According to one of the principal workers in this field, Milton T. Edgerton, In a very deep sense, these operations should be viewed as sex confirmation operations, and not as sex reassignment procedures(10). The wish of a transsexual person to reenter the society as a person with the physical and mental gender of choice without being spotted or without anyones knowing fulfills almost all of the preoperative objectives of transsexuals and should be the goal of surgical treatment. The aim of the treatment should also be to alleviate the depression that can result from the subjects feeling of inadequacy in relation to his or her physical and psychiatric state, which can lead to suicide or self-mutilation (29). It is the surgeons duty to establish beyond a reasonable doubt that the gender dysphoria is genuine and that
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TABLE 1. Genital and nongenital surgical reassignment4
Male to Female Transsexual Genital Breast augmentation Orchiectomy Vaginoplasty Labia and clitoroplasty Nongenital Facial surgery Surgical depilation Chemical peeling Lip augmentation Nose reduction Jaw and chin reduction Orbital rim reduction Zygoma correction Body contouring Hip augmentation Gluteal correction Voice adapting surgery Thyroid shave Female to Male Transsexual Mastectomy Oophoro-hysterectomy Phalloplasty Scrotoplasty Body contouring Liposuction of hips

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and were the first to perform phallic reconstruction in a female transsexual patient. Many modifications of their techniques have been recommended (35 43), including the positioning of the urethroplasty and the use of stiffeners. Many complications have been reported in phalloplasty (37), some of which are fistulas, strictures, hairy urethra, calculi, incontinence, partial necrosis, and extrusion of the stiffener. Another technique is the metaidoiplasty (44): the surgical transformation of the clitoris to a penis. It is also known as a klitorispenoid (45). If provided with a sufficient lengthened urethra, the klitorispenoid acts as a complete and normal penis, but at best it provides a small phallus, hardly capable of sexual penetration. The abundance of penile reconstruction techniques shows that none is ideal and that phalloplasty remains one of the most challenging procedures in reconstructive surgery. Genital reassignment surgery in male-to-female transsexuals In these individuals, the confirmation of the genitalia to the assigned gender can be achieved in one operation. Breast augmentation is performed. In addition to hormone therapy, silicon implants may be used to achieve this. Orchiectomy, resection of both testicles, is usually performed immediately before the vaginoplasty. Vaginoplasty, penile inversion surgery, which consists of using the penile skin to form the vaginal cavity, is the most popular surgery worldwide (46). Another technique that was in vogue some years back is the rectosigmoid vaginoplasty. Nowadays, along with vaginoplasty, the labia and clitoroplasty are also simultaneously performed (47). The nongenital gender reassignment surgeries are not without complications. They should not be offered as a part of the basic surgical sex reassignment treatment. MEDICOLEGAL ISSUES One of the first and most important issues confronting a transsexual patient is how far a new sex can be rectified in birth certificates and other documents of personal identity. In some countries like Sweden, West Germany, Finland, Czechoslovakia, Greece, Italy, Holland, Switzerland, Spain, the United States (47), and the United Kingdom (1), statutory provisions have been made; in others, it has been left rather vague. The courts decide each case on an ad hoc basis, depending on its merits. As early as 1955, in one case in Switzerland, it was held that after sex-reassignment surgery, the changed sex should be accepted. In granting him the civic status of women, we are satisfying the most profound desire of his being, while consolidating his psychic and moral equilibrium (48).
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Hage JJ. Medical requirements and consequences of sex reassignment surgery. Med Sci Law 1995;35:1724.

Genital reassignment surgery in female-to-male transsexuals Mastectomy is performed to create a male chest configuration, which can be attained only by this surgery; hence, it is chosen as the first operation. Hormonal treatment does not change the size of the breast. Mastectomy, along with hysterectomy and oopherectomy, is carried out as a single-stage operation. The main aims of mastectomy are to remove all the breast tissue and redundant breast skin where possible, to contour the chest wall by feathering out adjacent fatty tissue, and to convert the female nipple areola complex to the male appearance (31). However, the larger the breasts, the more obvious will be the chest wall scarring. Oophoro-hysterectomy is performed. The vaginal approach is preferable to the abdominal because it spares the abdominal flaps, which can be used for phalloplasty. The vaginal mucosa can also be used to lengthen the urethra (32). However, any female transsexual who wishes to retain her uterus should be viewed cautiously (31). Phalloplasty is performed. The main aims of phallic reconstruction surgery are a one-stage procedure that can be predictably reproduced, the creation of a new competent urethra to allow for voiding while standing, the restoration of both tactile and erogenous sensibility, the provision of enough bulk to tolerate the insertion of a prosthetic stiffener, a result that is esthetically acceptable to the patient, minimum scarring and disfigurement, and no functional loss in the donor area. To date, no phalloplasty technique has been able to meet these requirements (4). Borgoraz (33) described the first total reconstruction. Gillies and Harrison (34) modified Borgorazs technique

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D. HARISH AND B. R. SHARMA life to force a person who, on the recommendation of his doctor and by undergoing a lawful treatment, has taken on the appearance, and, to a large extent, the characteristics of the sex opposite to that which appears on his birth certificate, to carry identity documents which are manifestly incompatible with his appearance. However, in the case of Rees v. United Kingdom, the European Court did not touch on the main issue: the determination of the sexual identity of the postoperative transsexual right at the outset. This complicated the case, because the Court was forced to consider Mr. Rees as a biologic female, rather than a postoperative transsexual male, throughout the case. However, the view of the European Court did force Germany, and much later France, to amend their laws in respect to the new gender of the postoperative transsexual. France has yet to recognize that the sex change did occur in a postoperative transsexual patient (1). Sex change operations lead to many complications in such issues as admission to educational institutions, employment, admission to hospitals or nursing homes, marriage, and divorce. Again, the question of recognition of the new gender of the postoperative transsexual patient has to be decided. In these and many other situations, a broad-minded and sympathetic approach by the judiciary and the legislative bodies may help to reduce the agony and miseries of a transsexual who has acquired the physical traits of his or her psychological gender by undergoing a major, expensive, and lawful treatment recommended by a highly specialized, competent, and skillful team of doctors. CONCLUSION In 1948, the World Health Organization defined health as a state of complete physical, mental and social wellbeing, and not merely an absence of disease or infirmity. This definition therefore projects three dimensions of healthphysical, mental, and socialall closely related. The enjoyment of the highest attainable standard of health has been declared a fundamental right of every human being, irrespective of race, religion, political belief, or economic and social conditions (53). In view of the above, legal recognition of the surgically changed gender will amount to discharging the obligation on the part of the state to provide a healthy life to its citizens. Recognition and acceptance by the society of his or her new gender remains the other important ingredient of the treatment of a transsexual person. REFERENCES
1. Gromb S, Chanseau B, Lazarini HJ. Judicial problems related to transsexualisms in France. Med Sci Law 1997;37:2731. 2. Belli. Transsexual surgery: a new tort? JAMA 1978;239:2143 4; quoted by Taitz.

The first country to legislate was Sweden in 1972, followed by Italy, Spain, and Great Britain in 1982 and The Netherlands in 1984 (1). Many countries still recognize only the biologic sex of a transsexual. According to courts, although the transsexual no longer has the important feature of his/her original sex, he/she has not acquired the features of the opposite sex.(48) Courts in these cases do not take into consideration the one important factor for a transsexual: his or her psychosocial well-being. Lord Justice Ormrod summarized the courts inability to apply the medical professions approach to transsexualism thus: The law depends upon precise definitions and is obliged to classify its material into exclusive categories. It is a binary system designed to produce conclusions of the yes or no type. Biologic phenomenon, however, cannot be reduced to exclusive categories so that medicine often cannot give yes or no answers. . . This fundamental conflict lies at the root of all relations between medicine and law (49). He developed the Ormrod test to determine the sexual identity of a person, based on three biologic factors: the chromosomal, the gonadal (the presence of ovaries/testes), and the genital (internal sex organs at the time of birth of the individual concerned). Based on this test, the court found in Corbett v. Corbett (1971) (50) that the respondent, a postoperative female transsexual, was a male. Because marriage between members of same sex is not legally possible, the court in that particular case held the marriage between the respondent and the petitioner, both biologic males, to be null and void. The court in this case rejected a fourth factor, psychological basis, which was accepted by all the medical witnesses. Cases relating to such issues as divorce, employment discrimination, medical benefits, and custody have been brought to the courts in many Western countries. In most of these cases, the basic question to be decided has been the sexual identity of the postoperative transsexual: whether to legalize his or her new sex. Many courts have also decided on the grounds of nonconsummation of marriage to nullify the marriages of the postoperative transsexual. Some of those cases have gone further to the European Commission of Human Rights, viz., Van Oosterwijck v. Belgium (1989) (51) and Rees v. United Kingdom (1985) (52). In the case of Van Oosterwijck v. Belgium, the Commission found that the applicant had not exhausted all the domestic remedies available to him and dismissed the case. However, going into the merits of the case, the Commission found that by failing to amend the original birth records, the respondent state was violating Article 8 of the constitution, the right of respect of private and family life, and Article 12, the right to marry. According to the Commission, It would appear scarcely compatible with the obligation to respect private
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