American Law Does/Does Not Respond to the Transexual
A report of the presentation given by
Prof. Green described the legal situation in the USA, where there are 50 states, each with its own constitution, its own laws and its own courts. They are allowed to be inconsistent with each other, providing that their laws do not contradict the Federal Constitution. In addition to these fifty patterns of law there is also the federal system of law, its own courts, statutes and the United States Federal Constitution. This constitution includes the Bill of Rights, which sets out to guarantee individual freedoms. In Britain there is essentially one legal system, even though there are some differences in Northern Ireland and Scotland. The US inherited the British legal system, with its structure of Common Law or judge (court- made) law, based on precedent, and statutory law, the legislature's written law. The USA has an extensive scheme of statutory law. While the UK has more court- made law, there is an increasing number of statutes. However Britain has no National Constitution and there is no Bill of Rights. There is now, of course, in the UK, increasing liaison with the European Community and the European Court of Human Rights.
Transsexualism challenges medicine in a unique way. The law is placed in an unusual dilemma. It becomes necessary to make a most fundamental definition: What constitutes a man or a woman?
In addition, family law issues of marriage and child raising become involved, along with laws written to protect against employment discrimination. It raises issues about insurance reimbursement for medical procedures that might be considered experimental or cosmetic. It requires consideration of appropriate medical and social treatment in prison and in the Armed Forces.
American law adopts the English Common Law approach to change of name - it is permissible, providing that the change is not to perpetrate fraud. Such a change in name to one that is characteristic of the other sex is a component of sex reassignment. In most of the US states it is matter of common law and a transsexual or anyone else for that matter can usually take a name characteristic of the other sex. Some US states provide more formal name change through court order or by statute. Then the name change carries the additional weight of the State's approval.
Professor Green recounted how, in 1991, a New Jersey court ruled a person can change name as with common law tradition, whether or not he or she has undergone or even intends to undergo a sex change, or simply wants to change the name from traditional male to traditional female. In New York State, however, a male sought to change his name under the state's civil rights law to avoid embarrassing situations "due to his sexual preference." No medical or psychiatric evaluations were presented and the court held that not enough information was provided to grant an order or an official sanction to the name change. Another court in New York also denied a statutory name change for a pre-op transsexual, and was concerned about the public interest and the potential harm to the patient. This New York court held that the decision to live as a female must be irreversible and permanent.
Employment for the pre-operative transsexual, in the new gender role, could be considered an iatrogenic problem because patient management guidelines call for employment as part of the role in the real life test. Prof. Green pointed out that the situation is that employers need not hire the transsexual, and may terminate employment upon discovery of transsexual status.
Are transsexuals in the US protected under laws prohibiting discrimination based on gender? Are they protected under the laws protecting the handicapped? Attempts had been made to harness what's called Title 7 of the United States' Civil Rights Act. That was the anti-gender employment discrimination statute. One transsexual, who tried this, was Karen Ulane. Ulane had been a male pilot for Eastern Airlines for a decade with an excellent record. After sex re-assignment she attempted to return to Eastern as a woman pilot. Eastern refused. As an expert witness for Ulane, Professor Green argued that she was a woman and because she was under considerably less stress after reassignment, should perform flight routines even more effectively. Eastern's psychiatrist argued that Ulane was not a transsexual. He suggested that Ulane was an operated transvestite. Thus Ulane was considered to be a risk to airline passengers in consequence of an unknown post-operative course. The law court and trial court held that Ulane had been discriminated against in consequence of being a woman, because if she were still a man she would have been allowed to fly, and was discriminated against for being a transsexual. However, the Court of Appeals overruled. It held that Ulane was not discriminated against because she was a woman but because she was a transsexual and Title 7 protects men and women only and not transsexuals (in other words the "third gender.") As a follow-up to that case it's interesting to note that Eastern Airlines has gone bankrupt. On an unhappy note Karen Ulane was killed in a plane crash a few years ago, as a passenger in a small aircraft.
Professor Green discussed another instance that he liked to call the "strand of pearls" case. An employment discrimination complaint was filed against the Boeing company in 1993. The worker was hired as a male and six years later emerged as a transsexual. The employer banned the transsexual from using restrooms or dressing in "feminine attire" until after reassignment. However unisex clothing was permitted. The standard for Boeing was "whether her dress was likely to cause complaint, were the transsexual to use the men's restroom." Remarkably, unisex clothing included: a non-frilly blouse, earrings, lipstick, foundation and nylon stockings. But one day the employee wore a strand of pearls and this Boeing called "excessively feminine." The court held that transsexualism was not a handicap under Washington State law, and that the discharge was not in consequence of gender dysphoria. The State Supreme Court held that Boeing had reasonably accommodated to the transsexual's needs.
Professor Green moved to other federal laws in the US which also were not particularly helpful to transsexuals. The Americans with Disabilities Act of 1990, specifically excludes transsexuals from the section against discrimination. The Federal Rehabilitation Act of 1973 might have protected transsexuals because " transsexuals may constitute a mental disability" within the meaning of the Rehabilitation Act. But the Act was amended in 1992 such that "disability requiring rehabilitation does not include any person on the basis of sexual behaviour disorders."
Marriage is an important issue in the UK. For some transsexuals, marriage is the ultimate personal proof of the success of sex reassignment. In the US, the answer hinges on whether the transsexual changed sex legally, because two persons of the same sex cannot marry. In 1945, a Swiss court concluded that psychological sex was the criterion for determining sex for the post-operative transsexual. But as we all know, an English court later disagreed. Here the husband of a post-op transsexual, who knew of the bride's gender status prior to marriage, sued successfully for annulment, maintaining the bride was male. Judge Ormrod, who is a physician as well as a lawyer, held that the critera for determining sex were the sex chromosomes, as well as gonadal and genital structure. And, twenty years later, there was the Caroline Cossey case.
By contrast, in the US, in 1976, the highest New Jersey court held that the marriage of a post-operative male to female transsexual was valid because that person was a female for the intent of marriage law.
However, the state of Ohio does not permit post-operative patients to marry in the new role. This is because Ohio does not permit birth certificate change. In 1987 an Ohio court reviewed the positions which other states took about birth certificate change. It reported that, at that time, only three states out of fifty allowed the birth certificate to be changed outright - Arizona, Louisiana and Illinois (interestingly where Karen Ulane was born). Twelve other states allow a change of sex designation on the certificate. So it's less than half of the US states.
Professor Green then turned to the subject of parenting. Transsexuals of course may be parents and as such may be involved in child custody cases. In 1981 he was an expert witness in London's High Court for a pre- operative transsexual father fighting to continue visitation with a four year-old daughter. He argued for continued contact in the new role. The girl was aware that this person currently dressing as a woman was her father. The trial court ruled that the father could visit only when dressed as a man. But this requirement was overturned by the Court of Appeal.
However, in another case in the same year, in Cambridge, at which Professor Green was also an expert, the court ruled that the father could only have access to his young daughter, who was about three and a half, if dressed as a man and furthermore was not in the company of a male partner.
A striking case of transsexual parenthood and court considerations in the US was a 1973 case, in the state of Colorado, involving a female to male transsexual with four daughters. After the divorce she retained custody. She lived with another female and commenced contra-sex hormone treatment, sex-reassignment and legal sex change. She married the woman. The daughters' father sued for custody and won at trial court, based on the mother's transsexualism. However the Court of Appeal noted that no adverse effects on the children from the mother's transsexualism had been demonstrated. They did well in school, and they were doing well socially. Their best interests were not compromised by living in a transsexual home. The court wrote: "The record contains no evidence that the environment of the Respondent (that is, the transsexual) has endangered the children's physical health or impaired their emotional development. On the contrary, the evidence shows that the children are happy, healthy and well adjusted children, who do well in school and in ordinary activities.
"As with anyone else, transsexuals have been sent to prison for a variety of crimes, including homicide and armed robbery. Professor Green outlined the questions that arise. If pre- operative, at least genitally, should the prisoners be held with persons of their birth sex or their aspired-for sex? Prisoners generally - particularly males - are vulnerable to sexual victimisation. The prospect of abuse is great for transsexuals. They will closely approximate the sex of which other prisoners are deprived. Further there are the issues of medical treatment, the continuation of hormonal therapy and possibly reconstructive surgery. The United State's Supreme Court has held that prisoners with a psychological and medical condition must get some treatment, otherwise the eighth amendment to the Constitution would be violated. This amendment guards against cruel and unusual punishment. Just what that treatment should be, becomes problematic - the Supreme Court standard is what is called "deliberate indifference" to serious medical needs. Based on current decisions in the US, there is no constitutional right to receive oestrogen, to be transferred to a woman's prison, or to receive sex reassignment surgery, provided that treatment of some sort is available. Some prison treatments have been bizarre. One prisoner, denied oestrogen, implemented partial self-castration. The prison service completed removal of the testes and then agreed to administer sex hormones. However male hormones were given. Remarkably, this treatment was upheld as constitutional because it was not a total failure to provide medical attention. However, a court ordered another prison to administer female hormones to a prisoner who had lived as a woman for four years previously.
Recently, in 1993, the US Supreme Court, for the first time, granted review to a case where a male to female pre-operative transsexual sued prison officials after being sexually assaulted in the male general section of a maximum security prison. Two lower courts had dismissed the claim, that was based on cruel and unusual punishment. In the last couple of months the US Supreme Court gave its decision - a rather lukewarm response to the transsexual's need. The decision said that, for prison officials to be at fault, they must have had subjective knowledge, not objective, that the transsexual prisoner would be assaulted. In other words the prison officials must have known it would happen. An objective test, that is that any reasonable prison official would surmise that assault would result when you place a male transsexual in a male prison, was not sufficient. So the Supreme Court has sent the case back to the trial court and, in order for the transsexual to prevail, it must be proven that the prison officials actually knew that assault would take place. So what might happen in the future is that only after one victimisation would the prison actually be on legal notice that it's likely that a second victimisation would occur. The victimisers get one free shot at the transsexual.
The professor then considered the issues of insurance reimbursement for third party coverage for sex re-assignment, and the series of US federal and states cases that have resulted. In general, courts have ruled that none of the programs can arbitrarily deny a physician's reimbursement for performing transsexual surgery. In one case it said "we find that a state plan absolutely excluding the only available treatment known at this stage of the art for a particular condition must be considered an arbitrary denial of rights." In support of this is a review that Professor Green co-authored, summarising all the published English language reports about reassignment surgery between 1979 and 1989, concluding that, of 220 male transsexuals, 87% could be considered to have a satisfactory outcome and of 130 female transsexuals 97% could be considered to have a satisfactory outcome. However, a court in the US, after hearing testimony from another psychiatrist that the surgery was still experimental, held that "the state could reasonably determine that transsexual surgery is experimental" and thus deny insurance universally. On the other hand, in 1979, a New York court held that transsexual surgery can't be excluded for insurance coverage as being cosmetic.
Turning to professional sports, Professor Green noted that the transsexual as professional athlete is rare. One post-op tennis player produced a celebrated case in New York. Nine years after the advent of sex chromosome testing to determine the sex of athletes in Olympic competition, tennis star Renee Richards, formerly Richard Raskind, confronted the United States Tennis Association with a unique problem: was she a man or woman player? Did Renee Richards competing as a woman give her an unfair advantage due to the earlier androgenisation as a male? The Tennis Association decreed that Richards was a male, because her sex chromosomes were XY. This criterion is questionable. Would they have made the same determination for a person with the androgen insensitivity or testicular feminization syndrome? These women also have the XY configuration.
However, a New York court overruled the Tennis Association's decision as a violation of the state's human rights laws. For the court, the only justification for using sex determination tests is to prevent fraud and Richards was openly a transsexual. Richards, by the way, because she was last seeded in this competition, was put up against the previous year's Wimbledon champion, Virginia Wade, and was beaten by Wade in the first match.
Among Western nations, the US and UK, continue to discharge homosexuals from the military. The rationale is that it enhances the military's prowess. Professor Green pointed out, slyly, and to laughter from the audience, that, teaming together, both of our countries were able to defeat Iraq, while on an earlier occasion, fighting on its own, the United States beat Grenada. Apparently, they were successful in capturing a medical school.
Be that as it may, in 1987 the US Air Force Reserves discharged a post-operative transsexual as "psychologically unsuitable and physically unfit." The Court of Appeals supported the decision based on physical unfitness. The Air Force regulation requires discharge for medical defects that will significantly interfere with duty or performance. The regulation includes disqualification after bilateral orchidectomy, amputation of the penis and change of sex.
An urologist testified that the potential long-term effects of sex change surgery constituted medical risk, especially in remote areas, presumably meaning remote geographical areas. The transsexual didn't argue against the regulation generally, only that an individual soldier's status should be considered. However, the urologist testified that potential problems can arise in any post- operative transsexual. So at this moment transsexuals are barred from military service.
Just as transsexuals present an important research and clinical model in behavioural science, Professor Green pointed out that they also confront the law with a series of unique challenges. They push the legal doctrines, in terms of defining a man or woman, a male or female. What is the essence of marriage? Is transsexual treatment, medical care?
And what is the extent of protection we give to those whose sexual identity conflict is dramatically atypical, whether in situations of employment, in the military, or in prison. Determining the law on transsexuals poses great conundrums, to use Jan Morris's autobiographical term, which affect - to the law - a relatively small number of people.
There followed a short series of questions from the audience.
Q: I just wanted to congratulate you on your terrific review of American law. I am a transgender author and I just want to give you a few other post-notes to add to the points you raised in your lecture. Karen Ulane's case, interestingly - I don't know whether you know Laurie Killow - Laurie is a post-operative transsexual and she is now a big-wig with the Federal Aviation Administration. We've seen airlines firing Karen Ulane and also Jessica of Continental - she recently beat Continental in New Jersey. New Jersey had a perceived handicap law. That's about all. I would love to talk to you later, I hope you come to our next conference. Thank you.
Q: What do you see the way forward is?
A: Well, from several directions. One is public education and political awareness. Possibly to follow an example from the Gay Rights Movement in a more concerted action by law firms in pro bono work, with specialised legal groups, working at transsexual issues, and pushing as many cases in as many jurisdictions as possible, including the European court. We need to look at other jurisdictions which have taken a more liberal posture on some of these legal issues, to demonstrate that some of the concerns by the more status quo oriented bodies, are not justified.
One of the advantages of the US, with these 51 or so different sets of laws, might be that, when you move between states, the jurisdiction changes and, if the concerns that other states have, haven't been fulfilled, it becomes an argument for changing laws in the other states. For each particular issue I can point to jurisdictions that have liberalised their laws. We have to harness them.
What's been very important to the US is the gay rights movement. There really isn't a transsexual movement to speak of. The gay rights movement, has acted in two ways.
One is a number of organisations that are a part of the American civil liberties union, or those who may have a legal, education and defence fund. They have focused on gay rights cases. The other is that there are increasing numbers of gay law students graduating from law schools and going on to main stream law firms. There is a growing consciousness on the part of large firms to provide support as they did with the Ulane case. There, a law firm in Illinois spent $600,000 of their own assets on the Karen Ulane versus Eastern Airlines case. Hopefully both of those approaches will happen in this country as well.
Q: There have recently been some moves, such as the House of Commons Sub-committee meeting with a number of MP's and Lord Beaumont, and there have been medical leaps certainly following on from that. And there are various suggestions about how the rise of transsexuals may be improved in terms of changing the legal status and to improve their rights. One of the suggestions is a private members bill to go through the House of Commons, and another interesting possibility is an appeal on the Corbett/Corbett case, which was never really appealed. There were some quite awful discrepancies that occurred in that case that have never been challenged. So it's possible that things might actually improve, but as you say, they talk a lot of time, and a lot of lobbying and also a lot of money.
Q: You were talking about education and then you say that there is no civil rights movement . . . so perhaps the place we should start is in educating ourselves first, so that we can form a civil rights movement that's more effective. So things like this conference . . .
A: I've seen in the last few days a series of astute publications, including those on legal issues in the UK. So I think we are being educated . . .
Q: I mean educating transsexuals themselves first. So that we would be able to form a reasonably practical civil rights program. But I think that is a tall order because I think women transsexuals are very apathetic and they just hide away from the situation.
Q: You mentioned earlier on that you had appeared as an expert witness in this country. To what extent do laws that are passed in other countries, perhaps, help us to be more effective - as you were saying in states nearby. Are we getting any changes because of the European law for example?
A: The extent to which European, or American, decisions are impacting in the UK is unclear, but the European Court will be important.
Q: Last year in the state of Minnesota the non-discrimination act was amended to include sexual orientation and the trans who were politically active in that did get a definition that does include change of gender, under sexual orientation. In the United States right now, there is a Senate bill 238, which is the employment non-discrimination act of 1994. I was in Washington a couple of weeks ago lobbying on that as an individual. Senator Wellstone is working with Senator Kennedy to include a transgender with lesbians, gays and homosexuals. And two weeks ago, when we had our trans gender law conference, we spun off a political action group. So there now is in the United States, finally, a political lobbying organisation.
A: One of the things people outside of the US often don't appreciate is that of 50 states about 44 permit discrimination in housing and employment based on sexual orientation, as does federal law. The federal law which is promoted by Barnie Franks and Senator Kennedy isn't very powerful - it's a watered-down law for anti-sexual orientation discrimination but it's a step nonetheless. However, in the past, these laws have been soundly defeated.
Q: Did the Boeing company take on anything on technical capability? Because I used to work for British Aerospace, I changed at British Aerospace and I was told that my employment was still sound, because of my technical capability. I mean there was no discrimination about toilets, there was a unisex one and also meals were taken in a common restaurant.
A: I think in the US, to a large extent it's left to the individual employer. Under the rehabilitation and handicap laws it is asked that there be reasonable accommodation. The problem is that the transsexual isn't covered under those laws. Therefore it's up to the goodwill of your employer.
Professor Green's presentation was based on his paper in press in the Bulletin of the American Academy of Psychiatry and Law and is reprinted in part by kind permission of the publisher and the editor. It may be found as follows:
Editor: Don't forget Press for Change - that's our Action Group.
Citation: Green,R., (1994),American Law Does/Does Not Respond to the Transexual, GENDYS '94, The Third International Gender Dysphoria Conference, Manchester England.
Web page copyright GENDYS Network. Text copyright of the author. Last amended 09.03.02