The Room for those assigned at birth to the wrong gender - and the need for Legal Reform

By Janine Roberts - (revised June 2004)

What makes us male or female?

Some are convinced that doctors and midwives cannot make mistakes when they fill in our birth certificates.

Some find the very idea of such mistakes a threat to their own identity.

Germaine Greer mocked male to female "transexuals" as "men" masquerading as women by the use of chemicals and surgery. She rejected a person who did not look like an acceptable woman as a "gross parody of my sex". (The Independent. "On why sex change is a lie." 22nd July, 1989) Germaine's rejection of this person begs the question of how is a person's gender defined? It surely is not by having good looks?

Medical evidence in fact suggests that such people are not in fact masquerading but are like Germaine in having physically female brains. (Medical evidence to UK Parliament 1996) We now know that on the purely physical level, there are at least 3 criteria for gender, our chromosomes, brains and genitalia. They usually concur. But what happens when these do not concur? What is the gender of the hundreds of thousands of humans in which these factors are gloriously mixed?

Judges have pondered this in the UK courts - in the infamous case of Corbett v. Corbett, the judge ruled that although the defendent was clearly a woman, she was not a woman for the purposes of marriage despite them engaging in seemingly normal heterosexual love. That Judge in a decision of impenetrable wisdom declared their love-making to be homosexual. It was for him a matter of "what you see and experience is not what you get." He declared their heterosexual love to be fraudulent.

However he did not take note of a precedent involving a member of one of Scotland's most distinguished families. Sir Ewen Forbes of Craigievar, holder of a 15th century Barony and the 1630 Baronetcy of Novia Scotia, who was born Elizabeth Forbes-Sempill. In 1952 Sir Ewen was issued with a male birth certificate and shortly after this married his housekeeper, Isabela Mitchell. The new birth certificate was issued on the basis that his transsexuality meant his gender should have been seen as indeterminate at birth - which medically is the situation for all born with the condition of transsexualism.

In early June 1996 in South Korea, the highest court in the land decided that a woman raped was not raped as she did not have the appropriate chromosomes. It did not matter that her vagina was abused. The judges solomnly declared that the anti-rape law existed solely to protect women and she could not be such as she had XY chromosomes. The men who raped her - and had as much fun with her as with any other woman - thus escapted rape charges. These judges were deciding on medically primitive criteria. We now know the determing factor in gender identity is not the chromosomes, not the genitalia but the markedly gender differentiated brain.

I do not think we require scientists to determine our gender identity. Nearly all of us have instinctive knowledge of our gender. All science has done is to ratify our inner reality by finding that it is naturally reflected in our bodies. Ask any person with mixed gender indicators (that is; whose chromosomes, genitalia and brain are gender mixed) what gender they are. You will find that they mostly do not feel at all mixed. They know what gender is their own.

Such instincts are now backed up by autopsies. These have now shown that 'transsexuals" who claim their gender identity is other than what it seems on the surface, are following instincts that are rooted in the very pre-birth physical shape of their brain. It now seems certain that 'transsexualism" is in fact a form of "intersex" or "hermaphroditism" - for it is rooted in the physical nature of thier bodies.

If the transgendered woman has a female brain, then the people Germaine attacked are her sisters, no matter what she thought of their looks and manners, no matter if she finds them disturbing. Perhaps one day she will come to loosen her tight grip on the gate of her "gender club". Similar prejudice and rejection has driven many of the transgendered to suicide. It is precisely those who do not easily pass that need the greatest support.

It is true that many in our society find gender re-assignment hard to accept or understand. But generally this is because they imagine that the "male' to female "transexual" was once fully a male - and likewise the female to male was previously fully a female. This is simply not so.

As young children they feel like aliens in the wrong gender world. Their inner reality is often revealed in body language quickly read by other children who mercilessly tease them. Most then learn to hide "other-gender " behaviour. But such suppression often does not last. Those fortunate enough to be socially re-assigned in adulthood experience a very happy coming home to their true gender. They then get on with life in an entirely normal manner for this gender.

The concept that the transgendered were once full members of the opposite gender leads to many prejudices. Men cannot understand how any males would want to be castrated.They are completely right. It would be an unthinkable choice for any male. But the "transexual" undergoing this does so with the relaxed ease of a woman having a needed correction. She is simply not a male and has never mentally been one.

Likewise the feminist who sees the transgendered MtF as a male in disguise is understandably disturbed. She has spent so much of her time carving out a woman's space not dominated by men that she now fears the transgendered are spies intruding from the male world. But the transgendered woman is a woman who had to fight to be allowed to live as a woman. She now brings to womankind valuable insights from from the time when she was a spy under disguise in the male world. Similarly the FtM, female to male, transgendered person has much to offer the man's liberation movement.

I see no need for the definition of a transgendered person to have any reference to surgery. The transgendered are not artifical constructs. They are not the creations of surgeons. They have utterly no wish to be sterile. They have every wish to care for, adopt or give birth to children. They are not a lower species of human. Surgery is purely a corrective and cosmetic procedure that helps those that can afford it to socially meld and make love. One day perhaps it will help them bear children. Those that cannot afford surgical re=assignment are no less transgendered - and need legal protection even more than do the surgically re-assigned as they are the more vulnerable.

Among those that accept the existence of transgendered people, some believe they embody the breaking of "the bi-polarity of gender". It is argued that if we humans can re-assign ourselves between genders, then what does this do to the definition of gay and heterosexual, of gay and straight marriages.?

If by this it is meant that the transgendered were once truely of the other gender, it is not true. They do not re-assign themselves at will between genders. They find they must accept the male or female gender of their brains, minds and spirits, while at the same time challenging the limitations of gender-typing.

But the very existence of the transgendered does confuse the typing of humans as heterosexual and homsexual. Their presence is a major stumbling block for all who want an easy route to determine who is male or female. Their existence poses a problem to all religions, sporting bodies and states that have legislation or rules applying to specifically to one gender.

It even forces a practical re-examination of the acceptablility of "same sex" marriages. What chance do the religious conservatives have if a marriage can go from heterosexual to gay or lesbian - as happens to many of the transgendered who are in a truely loving relationship? At what point does it cease to be holy?

What chance does the Pope have to keep his ban on ordaining women priests? Will the church have to scan the brains of prospective candidates to insure no woman infiltrates their priestly ranks?

The transgendered argue ultimately that they have the right to change their social gender because they have been wrongly gender-labelled. Can this argument be taken further? Do we all ultimately have the right to chose our gender? A sane person is unlikely to make a flippant choice. Our gender reality is at the root of our being. In practice none of us would undertake such a dramatic and painful social re-assignment without grave reasons.

All transgendered people who want medical assistance currently must undergo a lengthly and expensive period of psychological assessment and must have their gender choice formally ratified by a committee of medical experts as appropriate for them. This is a fearful adjucation. Part of the criteria commenly used is that they will make a reasonably attractive member of the "other" gender. If they are not able to do this, they are advised to grin and bear their lives in the wrong gender.

But, despite this cautious screening, since 1970 the law in England has maintained the view that the transgendered are not transgendered. By its recent refusal to amend birth certificates for two women ("R versus Registrar General for England and Wales, Ex parte P and G, London High Court of Justice, 1996) these women have been denied legal protection as women. Thus the transgendered person goes through a nightmare to overcome social pressures and prejudices, only to find the state rudely insisting that he or she could not have been wrongly assigned at birth - no matter what is the medical evidence of error.

Yet other European countries (as well as New Zealand, some Australian and US states) will allow full legal transition. In these countries we can marry happily in our re-assigned gender.

What are the consequences of this?

Our marriages are not recognized - which within a united Europe leads to much confusion. The transgendered English woman may be raped, abused and discriminated against as a woman but will have no protection from the laws designed to protect women. Indeed she may be thrown into a male prison where she will be in grave danger of sexual abuse and humiliation. The state insists she uses a male birth certificate and refers to her as male in all government records. Thus she is exposed to constant embarrassment. Neither a male or female transgendered person has the right to heterosexual marriage or to adopt children. At work the transgendered often suffer discrimination. In the media they are treated as freaks. When a transgendered woman reach retirement age, she must be 65 not 60 like other women. Finally when they die they are accorded the final ignomy of being certified as being other than the gender in which they have lived, worked and loved.

Despite the tabloid press liking the easy headlines generated by their presumption that the doctors who assign gender at birth are never wrong, there are in fact thousands of cases where the baby's gender cannot be determined easily even from its genitalia. See the article on how the doctors can make errors with the "intersexed" babies.

An excellent ground-breaking book on the role of the brain in setting our gender is "Brainsex" by Anne Moir and David Jessel, published by Mandarin.

This is an excerpt

'Men are different from women. They are equal only in their common membership of the same species, humankind. To maintain they are the same in aptitude, skill or behaviour is to build a society based on a biological and scientific lie.

The sexes are different because their brains are different. The brain, the chief administrative and emotional organ of life, is differently constructed in men and in women; it processes information in a different way, which results in different perceptions, priorities and behaviour.

In the past 10 years there has been an explosion of scientific reseach into what makes the sexes different. Doctors, scientists, psychologists and sociologists, working apart, have produced a remarkably consistent picture. And the picture is one of startling sexual asymmetry.

At last there is an answer to the exasperated lament: 'why can't a woman be more like a man?'; it is time to explode the social myth that men and women are virtually interchangeable, all things being equal. All things are not equal.'


Our brains form into physically distinctive male and female types during the three years that follow conception. The genitalia are formed quite separately at an early stage in the womb. Sometimes they do not match our chromosomes let alone our brains. There are women with XY chromosomes. There are men with XX chromosomes. It seems mother nature has a number of rare melodies she plays with our genders. She can form the brain on one pattern and the genitalia on another. Sometimes the genitalia are ambiguous . But in every case the key gender organ is the brain. This Room is dedicated to the supremacy of the sexy brain! It is more important than conditioning, it is more important than the ability to father or mother a child. It is the organ that more than any other makes us male or female.

It may seem macabre to produce this evidence, but it may be relevant to some to know that recent post-mortum examination of 'transexual' brains (including cases where hormones have not been taken) have provided experimental evidence of the truth of their self-awareness - that they have the brain type appropriate to their reassigned gender.

The medical evidence suggests that it is appropriate to call such people hermaphrodite, as this means born with organs appropriate to both genders. However even this term is inadequate for it suggests that we may be neither male nor female. This is not so for the "transgendered". We all opt for the gender of our brains and spirits.

Some will argue that the brain reflects the spirit we are given at our creation. Some say it is pure chance as to which way the brain develops. Whatever the answer as to why it happens, in every society, in every age, children are born that appear one gender but later prove to be the other. These children should not be seen as suffering from a handicap or a defect. For me, gender dysphoria is simply part of the natural variety of life, part of the richness of my own life, .

There are of course disadvantages with being a woman. I find the frequent experiences of being patronised by men extremely hard to take. I have also suffered violence as a woman at the hands of men. But, if anyone developed a medicine to make me the gender of my birth certificate, I would run away from it in horror. I am proud of being a woman. I thank my Creator/rix for my journey to adult womanhood. It has given me a wonderful life and insights I would otherwise not have had. For the personal story of the author as a short story and as a description of her change from a Catholic priest to pagan priestess, for her adventures and achievements.

and to buy the entralling, intimate, radical and profound "Seven Days: Tales of Magic, Sex and Gender" book about her journey click here

Further Information.

Below please find some background reading on the current situation and what some are doing about it. In 2004 a succesful campaign led to the UK Parliament at last adopting a law that enabled changes to brith certificates to put right the unwitting mistakes made at birth in assigning children to a gender - for no doctor can see the shape of a brain at birth.

But first a word about a sister website, that of Press for Change (PFC). It is a wonderful database on medical and legal issues relating to the "transgendered" that was assembled to help us fight against legal discrimination. It covers the current legal situation and the campaigns to rectify this in the UK Parliament and Courts, in European Courts, in the US and elsewhere - and drove the campaign to change the law in the UK. I have drawn some of my information from their website and I strongly recommend that you voyage to it for further information.

The Press for Change Web-Databank.

I would also particularly like to recommend the writings of Christine Burns of Press for Change. Her story of her experience while lobbeying the Tory and Labour Party Conferences is a very moving and thoughtful document. It contains a rare insight into contemporary politics and demonstates quite some bravery. The link below takes you to her "Bridge" from her world as an international computer consultant into a very different world. (And you can take a side trip and read her poetry!) To the Story of Christine Burns and what happened when she lobbied the Labour and Tory party conferences

Her account of presenting the case for the inclusion of transgendered women to a woman's organisation is thought-provoking. She reflects on how some so called radicals and feminists are much too exclusive, much too sure about who is a man or a woman. This is based on the belief that doctors do not make mistakes in assigning babies to one or other gender.

I would also like to higly recommend the legal papers by Stephen Whittle, a Lecturer in the School of Law at the Manchester Metropolitan University. He himself is a FtM transgendered person. He helped found Press for Change and still is at its heart. He has many papers on this website - but if you would like a direct connection to one of his most recent, try this Gemeinschaftsfremden - or how to be shafted by your friends: Sterilisation requirements and legal status recognition for the Transexual. I am also including with Christine's permission direct links to selected parts of the Press for Change Database in the index below.

Kandinsky Yellow-Red-Blue  painting.

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