Roads to Freedom

Prof. Zoe-Jane Playdon

BA (Hons), MA, M.Ed, FRSA.University of London, Education Adviser, Br. Postgrad Med Fed, GT, PFC.
Gendys Conference, 1996

 
It is something over four years since the national conference, entitled Counselling Gender Dysphoria, on 15 February 1992, at a hotel in Birmingham. The keynote speakers were Dr. Russell Reid, Dr. Stephen Whittle, and a representative of NALGO, now UNISON, and the delegates were drawn from the personnel, counselling and healthcare professions. Most important of all were the expert witnesses, people who had been treated for transsexualism and who shared their life experiences with the other participants. It was one of the comparatively rare occasions where the community of people treated for transsexualism spoke at least in a measure for itself, where issues were addressed on human terms, where the personal met the professional to try to create new meanings, new understandings. The findings of the conference were summed up by its chair:

The only safe advice, it seems from today's inputs, that one can give to a transsexual is, not to expect to have normal sexual relations, not to expect to keep employment or to have a career, and not to expect to have fair treatment from the law or from the police. So, the direction ahead is likely to be upwards, and one of the questions we have to ask is, who will come with us on that road? Not, it seems, the Equal Opportunities Commission which refused to send a speaker to today's event: nor, it seems, can we rely on the initiative of the public sector. Here we are, in Birmingham, the second city in the county, with a large transsexual community, but no gender identity clinic. And sadly, perhaps, we might not even expect to be accompanied by the education service, because it is a notoriously conservative profession and as a speaker suggested this morning, one of those areas that isn't particularly sympathetic towards transsexuals.

So it seems that we have to fight, as other politically and socially oppressed minority groups have fought, first of all to have a voice and secondly to make that voice heard. And that means, perhaps, that it's time for transsexuals to stop living provisionally, in the twilight zones that a begrudging society concedes to there and to start living proactively. And perhaps that means that we need to make heard what one of the delegates today called our joint anger: perhaps it is time to use that as a power to motivate us, and as a force to energise a larger debate. For it seems to me that the route ahead is about a demand for the basic requirements of the human condition: for equality, dignity and civil liberty. If today, in a very small way, we have managed to start a cry for those things, then let us make sure that the cry doesn't end, and let us make sure that it resounds until our voices are heard and until, for all of us, transsexual and non- transsexual alike, the freedoms that we know don't exist, are finally won.⁽¹⁾

It is perhaps important to look back over that short period of time to reflect on the roads to freedom that have been found since then and to consider how progress might be made in the future. Shortly after that conference, though not as a consequence of it, Press For Change was formed and a new process of discussion was initiated, on a national scale. With the money contributed by its founders, it mailshotted every MP in the UK with information about civil inequities and with photographs of individuals Mark Rees and Mjka Scott showing the real, unremarkably human side of people born with the transsexual syndrome.⁽²⁾ A little later in the year, a draft version of the Press For Change lobbying pack was circulated to interested individuals, for comment and addition and the modus operandi of the organisation was born a network of individuals, coming together for specific tasks, acting out of interest and commitment, each doing what they could when they could, coming and going at will. One voice of the community was beginning to be heard.

By the end of 1992, too, the complaint that the Equal Opportunities Commission (EOC) had not supported this cause was no longer true. The case of P vs S and Cornwall County Council was heard at an Industrial Tribunal in Truro in 1993, funded and supported by the EOC.⁽³⁾ The case, in which a woman treated for transsexualism had been dismissed, challenged the notion that such dismissals were reasonable and non-discriminatory. The Tribunal found that UK law did not cover the case and referred it to the European Court of Justice for a decision under the Equal Treatment Directive. On 31 April 1996 the Court found in favour of the applicant, P, and legal history was made. A few days after this conference, the final stages of that case will be heard and a decision on the compensation award may be expected by the end of this month. Now, thanks to the EOC, it is illegal to dismiss people on the grounds of their transsexualism and employment rights have been won.

The work in P vs S gained useful support from the Parliamentary Forum on transsexualism, chaired by Dr. Lynne Jones, MP. The Forum was initiated by a constituent of Dr. Jones, one of the expert witnesses at the Birmingham conference who wished to be able to marry. After lengthy correspondence with various government departments on this matter, and on other issues of civil liberty, such as imprisonment,⁽⁴⁾ Dr. Jones agreed to convene a forum of legal, medical and other experts to consider ways in which the legal status of people treated for transsexualism could be restored to equity with other UK citizens.⁽⁵⁾ The Forum met first on 30 June 1994 and has proved invaluable in providing a opportunity for information exchange between lawyers and doctors working in this area, producing important and influential documents such as Transsexualism: the Current Medical Viewpoint, co-authored by Dr. Russell Reid, Dr. Domenico de Cegli, Professor Richard Green, Professor Louis van Gooren, Professor John Money.⁽⁶⁾ It was also the base from which Alex Carlile MP produced his Private Member's Bill to attempt to restore civil status to transsexuals, earlier this year.⁽⁷⁾ Other work carried out by the Forum includes a survey of care by District Health Authorities. Meanwhile, both Lynne Jones and Alex Carlile have taken every opportunity to ask Parliamentary Questions in areas relating to transsexualism and thus to keep the issue before the eye of MP's and the public.

And legal cases have proliferated, many of them brought by the same solicitor, Madeleine Rees, who won P v S. That does not mean that they have always been won: earlier this year, a High Court case brought by two people known as P and G, to have their Birth Certificates corrected was lost.⁽⁸⁾ But even in the process of losing, more was learned about the legal arguments and general background, allowing the legal lobby to reformulate and act again, in the future. That will not be until the result of a similar case in the European Court of Human Rights, Sheffield v United Kingdom and Horsham v United Kingdom,⁽⁹⁾ is heard. Meanwhile, another case, X Y and Z v United Kingdom has been brought to give rights to a child born by donor insemination to have its mother's partner, a transsexual man, shown as its father on its birth certificate.⁽¹⁰⁾ Other cases are in hand to protect the rights of people who have been sent to the wrong prison for their sex, or who have been denied medical care in prison. Most successfully, every Health Authority that has refused treatment on the NHS typically for gender reassignment surgery and has been faced with court proceedings, has capitulated and reconsidered its position.

New voices have arisen, too, the most significant of which is that of Kate More and the Gender and Sexuality Alliance.⁽¹¹⁾ One of the most important contributions which the transsexual community has made to society at large has been its questioning of stereotypes about sex and gender, and it is this issue that Kate's journal addresses. Like Press for Change, Gender and Sexuality Alliance is also active in lobbying, in bringing legal cases, and in providing expert opinion: a notable contribution has been its response to a Home Office request to provide views on the provision which should be made for transsexuals in prison.⁽¹²⁾

New scientific evidence has come to light. Late last year, Nature magazine published seminal research on the physiological basis of transsexualism, identifying a region in the hypothalamus of the brain which is smaller in women than in men. Strikingly, the region was of female size or smaller in six male-to-female transsexuals, regardless of hormone treatment. This result supports the hypothesis that gender identity stems from an interaction between the developing brain and sex.⁽¹³⁾

This information, and the new information exchange system set up on the Internet by Christine Burns,⁽¹⁴⁾ represents important steps forward in gaining civil liberty. And there have been other progresses, too, the fringe meetings held at Conservative, Labour and Liberal Democrat party conferences, the television programmes produced, among others, by Press For Change and by Pamela Hunt, the Gender Identity Clinic set up m Leicester and the actions taken talks, interviews, publicity, lobbying reported in support magazines such as GEMS News, by many individuals, acting both on their own and on behalf of the larger community.

This, then, is what has been achieved in a little over four years. What are the routes ahead?

I should like to consider first the future role of medicine. The Nature article confirmed what has always been believed by medicine, that transsexualism has a physiological basis. This was the view of Harry Benjamin, when he introduced the syndrome to the general medical community in 1954 and it is a view that has been reiterated time and again by other practitioners in the field, as Transsexualism: the Current Medical Viewpoint tells us. On the basis of the new evidence, then, it is time to reassess transsexualism and redefine it fairly and squarely as an intersex condition, in the same category as Turner's Syndrome and other similar congenital conditions. After all, transsexualism is present at birth and it is capable of being identified at an early age if it is suspected in a patient. The phenomenon of mid-life identification of transsexualism, sometimes referred to as 'secondary transsexualism', seems to me to be purely a social construct, a response to a new availability of care which was not formerly available, to the growth of a new specialist expertise which was not formerly present, and an increasing social normalisation of a syndrome which was previously regarded as profoundly stigmatising. It may be argued that in the same way that true hermaphroditism is both present and immediately obvious at birth; and Turner's syndrome is present at birth but opportunities for identifying it often do not arise until puberty; so it should be noted that transsexualism is present at birth and opportunities for identifying it arise before puberty, at puberty or later in life, depending on the circumstances of the individual and the expertise available to them. Thus, transsexualism may be identified as an intersex condition along with other intersex conditions.

It also emphasises the importance of the role of psychiatry in differential diagnosis, in identifying that a person has been born with transsexualism rather than that they are experiencing paraphilias such as fetishism or its associated conditions. Further, it suggests the importance of a larger future role for psychiatry in the on-going healthcare of the patient. Recent advances in clinical care, heralded by Keith Nichols's Psychological Care in Physical Illness,⁽¹⁵⁾ have recognised a major role for psychiatry in enabling patients to deal with the emotional consequences of medical conditions. This new sub-specialty, often referred to as 'liaison psychiatry', is surely relevant to the treatment of transsexualism, where the consequences of diagnosis are potentially so far-reaching.

The role of medicine is crucial, of course, to the effectiveness of law in its search for remedies to the current status quo. Notoriously, this is because of the judgement given in the case of Corbett v Corbett, where the Judge set up a 'sex-test' to decide on the validity of marriage between April Ashley and the future Lord Rowallen.⁽¹⁶⁾ The basis of that test is no longer considered valid by current medical opinion but nevertheless the law it gave rise to is still in force. What, then, are the legal routes ahead?

Clearly, the most important legal agenda is to keep on bringing cases which will challenge the current status of transsexuals and change it at law until equal treatment is achieved. The impact of P v S has made it clear that even though a solution at law may take time - three years from the first hearing to the final one - it is highly effective. The main object of attack must be the Birth Certificate. It is a matter of fact that when Birth Certificates have been corrected, in cases of transsexualism and other intersex conditions, the individuals concerned have gained full civil status in their assigned sex without further legal procedures and no problems have arisen from that. Indeed, the point at which a problem arose, in the case of Corbett v Corbett, was one where the woman concerned, April Ashley, had not had her birth certificate corrected.

But if this conference's thinking is limited only to the transsexual community then it separates itself from the mainstream of civil life rather than integrating with it.

Rather, an important legal agenda of the future is to consider the way in which the civil circumstances of people treated for transsexualism illuminate the circumstances of other citizens. The decision in the case of P v S has had immediate knock-on effects in other areas of discrimination, notably the dismissal of gay men and lesbians from the armed forces. What else may be learned about the role of government in governing minorities, especially minorities of which it may not approve? What does this mean in the larger context of European government and European citizenship? As we move into a new millennium, how should we extend our understandings of ourselves and of each other into a larger sense of communality? These are issues, it is hoped, will be addressed at a conference in the new year, sponsored by the National Council for Civil Liberties whose new legal director, Jonathan Cooper, has made equal treatment for transsexuals one of Liberty's main concerns.

The need for these larger understandings means that the work carried out by Kate More and Gender and Sexuality Alliance is particularly important. She is contributing to and dealing with the political and philosophical issues of difference and sameness which invest the current debate about the relationships between sex, sexuality and gender, the way in which they are constructed and the power systems which they reveal. Perhaps everyone born with transsexualism has been harmed by the biological reductionism of arguments made notorious by Janice Raymond's The Transsexual Empire, the notion that the only acceptable definition of male or female is that of an orthodox physiology decided at birth. In her arguments, there is no room for variety or change and still less for individual choice: they appear to share the same starting point as the racial purity arguments of Nazi Germany and recalling that transsexuals were amongst the first of the untermensch to be harvested for extermination, it is good to see Kate and her colleagues taking up arms.

The aim is for all of these future developments to become law, for equal treatment to be a principle by which all UK citizens are governed. Ultimately, this requires the cooperation and acquiescence of Parliamentarians and thus it seems to me that the Parliamentary Forum has a vital role. It is a simple fact that a letter from an MP to a government agency demands a response which a letter from a constituent does not and Dr. Lynne Jones has been generous in her support in this area. Most recently, she has supported an approach to the Press Council to begin to establish guidelines for reporting when the subject of news coverage is someone who has been diagnosed as transsexual and this is an example of the way in which her Forum can bring together experts from diverse fields to begin to establish good practice and lobby for its implementation. As the unfortunate series of legal decisions which led to the disenfranchisement of people born with transsexualism are slowly but surely reversed, then this process of establishing consensus and best practice will become increasingly important.

What of the other agency that was highlighted in the Birmingham conference closure, education? That is an ongoing activity, not just for the general public or decision makers who are ill-informed, but for all who are working directly for change in their various professional environments. It is a multi-professional issue, one in which views and understandings are changing rapidly, as this conference demonstrates, and thus one which requires fast learning, often in new and unfamiliar areas.It is impossible to invoke this conference without thinking of Alice Purnell, its organiser an sponsor, and impossible not to associate Alice with GEMS. Perhaps it is through support groups such as GEMS that the best education will take place, not just through the various talks and information which it provides but more crucially through its individual members living their lives fully. For in the end, of all of the roads to freedom which have been discussed today, the greatest, the royal road, lies within the individual, within their own sense of self-worth and their autonomous recognition that, no matter how other may define them, they are not less worthy of respect than any other person

References

1. Counselling Gender Dysphoria, ed J Wheale (Exeter: ATC, 1992), p.41.
2. I am indebted to Dr. Stephen Whittle for information about the founding of Press For Change.
3. P v S and Cornwall County Council (C-13/94), Industrial Relations Law Reports, 1996, pp. 347-54.
4. I advised Dr. Jones on these matters during this period and I take my information from that experience. Some of the correspondence between Dr. Jones and the Home Office was used in the High Court Birth Certificate case, P & G.
5. Notes of the Meeting on the Parliamentary Forum on Transsexualism, 30 June 199?
6. de Cegli D, Dalrymple J, Gooren L, Green R, Money, J & Reid, R (1996) Transsexualism: The Current Medical Viewpoint, London: Press For Change
7. Carlile, A (1996) Gender Identity (Registration and Civil Status) Bill, London: HMSO
8. R v The Registrar of Birth Death and Marriages ex parte P, London: High Court of Justice, 1996
9. Reported in European Human Rights Law Review, 'Bulletin', I, 1996, p. 31
10. Reported in European Human Rights Law Review, 'Cases and Comment', 1, 1996, p. 91-100
11. Gender and Sexuality Alliance, Box *, St Mary's Centre, Corporation Road, Middlesborough, TS1 2RW
12. More, K. (1996) G & S A Submission to Her Majesty's Prison Service, Middlesborough: Gender and Sexuality Alliance
13. J N Zhou, M A Hofman, L Gooren & D F Swaab, A sex difference in the human brain and its relation to transsexuality', Nature, 2 November 1995, vol 378: 6552, pp. 68-70
14. The site is located at http://ourworld.compuserve.com//homepages/christine_Burns/pfc.htm
15. K A Nicholls (1984) Psychological Care in Physical Illness, London: Croom Helm.
16. All England Law Reports (1970) Vol 2 pp. 32-51 Corbett v Corbett otherwise Ashley.