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
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
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
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
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
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
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
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
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
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
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
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!)
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
- 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
To the Front Page of
the Web Inquirer ->
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