Gender: quaesto quid juris?

Abstract

There is legal provision for correcting wrongful gender assignment. However, gender reassignment is not obligatory when and if it is discovered that an error has been made notwithstanding that certain legal and social privileges and responsibilities are attached to individuals of a specified sex. Marriage, for example, is a contract between parties of the opposite sex. There are several well-defined medical conditions of which ambiguous sexual development is a part and it is patients with these conditions untreated who are likely to come before the courts in disputes involving gender assignment. Genetic, chromosomal and endocrine factors singly or in combination are aetiological. The pathology of the various conditions is outlined, and rational therapy, where available, is indicated. It is recognized that psychosexual identity is not determined once and for all but on the basis of modern research, psychosexual identity may alter without corresponding somatic change. Such change may be endocrine based or it may be of unknown aetiology as in trans-sexualism. If the cause of a gender deviation (somatic and psychic) is known and treatment available, it is suggested that it would be proper for courts, in passing judgments on the gender of individuals, to recommend treatment as is the practice when dealing with a convicted person who may also require psychiatric treatment. If the aetiology of the deviation is unknown and no effective treatment available (as in trans-sexualism) it would seem reasonable that if a person has submitted his/her body to surgical transformation so as to conform to a psychosexual identity, then that individual should be accorded the gender status which he/she declares himself/herself to be. During the past twenty years or so the advancement in medical knowledge in the fields of fetal development, genetics and therapeutics has led to a greater appreciation of the factors leading to normal and abnormal sexual development. Formerly, terms such as male pseudohermaphroditism and female pseudohermaphroditism were used to denote ambiguity of sex in a chromosomal male and female respectively. These terms stopped short of basic aetiological considerations and did not point the way to the avoidance of wrongful gender assignment. In the past, a surgeon might spend time and expertise constructing a urethral passage along the undersurface of an underdeveloped penis so as to facilitate micturition in the erect posture. Considerable distress to patient and parent later arose when at puberty such a ‘male’ experienced lower abdominal pain followed by monthly episodes of haematuria. Today such errors are extremely rare, the true chromosomal sex normally being assigned at birth. However, special cases continue to arise, usually late in childhood or after the patient has attained legal majority and to clarify the medical, psychiatric and legal problems surrounding these patients, the following considerations are relevant.