Gender, the endocrinologist and the law – man or woman?

Court decisions reflect little or no understanding of complexities of gender assignment.

Issue: February 2007

ByL.J. Deftos, MD, JD, LLM

L.J. Deftos, MD, JD, LLM
L.J. Deftos

This is another in a series of articles about gender law. Here I will discuss the legal implications of gender assignment and its unforeseen consequences and outline the general reluctance of American law to consider gender as other than male or female, with birth certificates as determinative.

Complexity of sexual identity

Sex is complex, and sexual assignment can be more so, as outlined in the first article of this series (“Gender, the endocrinologist, and the law – boy or girl?” Endocrine Today, April 2006.) Apparent gender can influence the fundamental legal, social, and political processes that permeate our culture. This is especially the case for the newborn with ambiguous genitalia, and especially so since the sexual assignment of the birth certificate is dispositive, usually for life. But the complexity of sexual identity also applies to the adult with gender dysphoria.

The long-term legal consequences of these decisions at birth are illustrated by some of the specific issues discussed below. In general, when gender is an important element of an agreement, contract or law, unanticipated consequences of sexual assignment at birth can take their toll in adulthood. For example, in the majority of U.S. jurisdictions where marriage is defined as between a man and woman, the validity of a marriage and all of its legal benefits and obligations can be challenged if one of the partners is or becomes a transsexual.

Gender identity disorders

There are many endocrine and genetic disorders that can result in ambiguous sex and sexuality. In addition to hermaphroditism, they include the congenial adrenal hyperplasias, androgen insensitivity syndromes, 5-alpha reductase deficiency, 17-beta hydroxysteroid dehydrogenase deficiency, Turner’s syndrome, mixed gonadal dysgenesis, testicular regression syndromes, Leydig cell hypoplasia, Klinefelter’s syndrome, and several maternal virilizing disorders. While correct diagnosis in these reasonably well-characterized diseases can lead to optimal medical therapy, gender identity issues can complicate endocrine treatment.

More difficult management issues are presented by the Gender Identity Disorders, also called gender dysphorias. These are conditions where a person who has been assigned one gender, usually at birth, feels as belonging to the opposite gender and conforms to the behavior of that self-identified gender. Some of these individuals first received public attention decades ago, notably Christine Jorgenson and Renee Richards. The recent movie “Transamerica” caused a cultural anamnesis to the earlier transsexual movie based on Gore Vidal’s novel, “Myra Brekenridge.”

The book by John Calopinto with the telling title, “The Boy Who Was Raised As a Girl,” detailed the tragic story of Bruce Reimer, whose penis was essentially destroyed by electrocautery at circumcision. At the urging of the now-discredited blank-slate school of sexuality at Johns Hopkins, Bruce became Brenda through surgery and hormone treatment. Despite apparent early success, he reclaimed his male identity but eventually committed suicide. More enlightening was the autobiographical novel “Middlesex” by Jeffrey Eugenides. His account of life with 5-alpha reductase deficiency was widely praised, and he won the 2003 Pulitzer Prize for fiction.

But unlike these well-publicized cases, many transsexuals lead lives of quiet desperation. Some do confront the legal system by trying to change the sex designation of their birth certificate, qualify for health insurance, or gain minor victories regarding dress and deportment at their jobs. Proof of surgery is required for a gender change on a birth certificate; New York City recently backed away from a proposal favored by mental health experts to accept hormone therapy for this purpose.

In addition to hormone therapy, some individuals seek aggressive surgery to change their gender. For male to female transitions, surgery can include orchiectomy, penectomy, vaginoplasty, clitoroplasty, labiaplasty and thyroid chondroplasty. For female to male, hysterectomy, salpingo-ooperectomy, vaginectomy, scrotoplasty, urethroplasty, phalloplasty and metoidioplasty.

Most of these surgeries are done in foreign countries, but some are done in the U.S. One of the American pioneers in sex-change surgery, Stanley Biber, MD, died recently at the age of 82. He had converted the small town of Trinidad, Colorado, into a mecca for transsexual surgery. His legacy there remains uncertain.

Gender and the courts

U.S. courts have addressed both important and perhaps less weighty issues regarding gender. The validity of marriage involving a transsexual illustrates the former; bathroom use illustrates the latter.

In most cases, the language of the court decision reflects little or no understanding of the complexity of gender assignment but rather starkly relies on birth certificate gender. And it is the rare court that expressly finds for transsexuals, who thus have commonly been denied the validity of their marriage, child custody, and a right to inherit, just to mention a few of the issues adjudicated at trial. Invariably, gender is either male or female in case law, and no intermediate state is recognized, despite the gender spectrum acknowledged by endocrinology as well as psychiatry.

Gender confronts the law

In addition to marriage issues, gender can confront laws regulating health insurance, disability, discrimination, employment discrimination, participation in athletics, pension and insurance payments, liability for sex-based crimes, prisoner housing, clothing at work, child custody, adoption, disability, immigration, housing and heath care. The results are mixed, with few courts ruling for the transsexual challenge to the perceived inequity of the law and most ruling against the transgendered.

While it is difficult to conclusively identify a trend in the U.S., there seems to be some progress in the law regarding sexual identity, progress that may improve the lot of the transgender community: Massachusetts allows gay marriage, but through a judicial decision that is threatened by the legislature. Vermont, Connecticut, and California permit civil unions.

However, most U.S. jurisdictions deny same-sex marriage. Furthermore, in the 2006 elections, seven states voted to ban same-sex marriage through constitutional amendment; only Arizona rejected such a ban. In contrast, many European countries permit them, including conservative countries like Spain, Italy, Greece and Turkey, as do the Netherlands, South Africa, and Canada, but not the United Kingdom. These differences played out recently, when in July, 2006, the London High Court refused the request of two university professors to recognize their Canadian marriage. While there is of course a difference between homosexuality and transexuality, more permissive laws will help both communities.

A role for endocrinologists

Although there may be a more liberal trend for the definition of gender in the law, no case law recognizes gender self-identity. And no case law considers gender as other than the dichotomy of male and female, despite the aforementioned recognition of a gender spectrum.

Endocrinologists should be sympathetic to the subtleties of gender assignment and help inform our institutions about the untoward consequences of rigid policies in this medical and legal arena. As will be discussed in subsequent articles, rigid adherence to gender dichotomy has been painfully unjust.

For more information:
L.J. Deftos, MD, JD, LLM, is a professor of medicine at the University of California, San Diego, and a professor of law at California School of Law. He is also a member for Endocrine Today’s Editorial Board.
Greenberg J. Legal Aspects of Gender Assignment. Endocrinologist. 2004;13:277-286.
Pawelski JG, et al. The effects of marriage, civil union, and domestic partnership laws on the health & well-being of children. Pediatrics. 2006;18:349-364.
Cohen-Kettenis, Peggy. Psychological Long-Term Outcome in Intersex Conditions. Hormone Research 64:27-30, 2005.