A person may be considered to be a transgender person if their gender identity is inconsistent or not culturally associated with the sex they were assigned at birth, and consequently also with the gender role and social status that is typically associated with that sex. They may have, or may intend to establish, a new gender status that accords with their gender identity. Transsexual is generally considered a subset of transgender, but some transsexual people reject being labelled transgender.
Globally, most legal jurisdictions recognise the two traditional gender identities and social roles, man and woman, but tend to exclude any other gender identities, and expressions. However, there are some countries which recognize, by law, a third gender. There is now a greater understanding of the breadth of variation outside the typical categories of "man" and "woman", and many self-descriptions are now entering the literature, including pangender, polygender, genderqueer and agender. Medically and socially, the term "transsexualism" is being replaced with gender identity or gender dysphoria, and terms such as transgender people, trans men and trans women are replacing the category of transsexual people.
This raises many legal issues and aspects of transgenderism. Most of these issues are generally considered a part of family law, especially the issues of marriage and the question of a transsexual person benefiting from a partner's insurance or social security.
The degree of legal recognition provided to transgenderism varies widely throughout the world. Many countries now legally recognise sex reassignments by permitting a change of legal gender on an individual's birth certificate. Many transsexual people have permanent surgery to change their body, sexual reassignment surgery (SRS) or semi-permanently change their body by hormonal means, hormone replacement therapy (HRT). In many countries, some of these modifications are required for legal recognition. In a few, the legal aspects are directly tied to health care; i.e. the same bodies or doctors decide whether a person can move forward in their treatment, and the subsequent processes automatically incorporate both matters.
In some jurisdictions, transgender people (who are considered non-transsexual) can benefit from the legal recognition given to transsexual people. In some countries, an explicit medical diagnosis of "transsexualism" is (at least formally) necessary. In others, a diagnosis of "gender dysphoria", or simply the fact that one has established a non-conforming gender role, can be sufficient for some or all of the legal recognition available. The DSM-V recognizes gender dysphoria as an official diagnosis.
Legislative efforts to recognise gender identity
Further information: Legal recognition of non-binary gender
Main article: LGBT rights in South Africa § Gender transition laws
The Constitution of South Africa forbids discrimination on the basis of sex, gender and sexual orientation (amongst other grounds). The Constitutional Court has indicated that "sexual orientation" includes transsexuality.
In 2003 Parliament enacted the Alteration of Sex Description and Sex Status Act, which allows a transgender person who has undergone medical or surgical gender reassignment to apply to the Department of Home Affairs to have the sex description altered on their birth record. Once the birth record is altered they can be issued with a new birth certificate and identity document, and are considered "for all purposes" to be of the new sex.
Main article: Transgender in China
In 2009 the Chinese government made it illegal for minors to change their officially listed gender, stating that sexual reassignment surgery, available to only those over the age of twenty, was required in order to apply for a revision of their identification card and residence registration.
In early 2014 the Shanxi province started allowing minors to apply for the change with the additional information of their guardian’s identification card. This shift in policy allows post-surgery marriages to be recognized as heterosexual and therefore legal.
Transgender youth in China face many challenges. One study found that Chinese parents report 0.5% (1:200) of their 6 to 12-year boys and 0.6% (1:167) of girls often or always ‘state the wish to be the other gender’. 0.8% (1.125) of 18- to 24-year-old university students who are birth-assigned males (whose sex/gender as indicated on their ID card is male) report that the ‘sex/gender I feel in my heart’ is female, while another 0.4% indicating that their perceived gender was ‘other’. Among birth-assigned females, 2.9% (1:34) indicated they perceived their gender as male, while another 1.3% indicating ‘other’.
The Court of Final Appeal of Hong Kong ruled that a transsexual woman has the right to marry her boyfriend. The ruling was made on 13 May 2013.
On 16 September 2013, Eliana Rubashkyn a transgender woman claimed that she was discriminated and sexually abused by the customs officers, including being subjected to invasive body searches and denied usage of a female toilet, although Hong Kong officers denied the allegations. After being released, she applied for and was granted refugee status by the United Nations High Commissioner for Refugees (UNHCR), rendering her effectively stateless awaiting acceptance to a third country.
Main article: LGBT rights in India § Transgender rights
In April 2014, the Supreme Court of India declared transgender to be a 'third gender' in Indian law. The transgender community in India (made up of Hijras and others) has a long history in India and in Hindu mythology. Justice KS Radhakrishnan noted in his decision that, "Seldom, our society realizes or cares to realize the trauma, agony and pain which the members of Transgender community undergo, nor appreciates the innate feelings of the members of the Transgender community, especially of those whose mind and body disown their biological sex", adding:
Non-recognition of the identity of Hijras/transgender persons denies them equal protection of law, thereby leaving them extremely vulnerable to harassment, violence and sexual assault in public spaces, at home and in jail, also by the police. Sexual assault, including molestation, rape, forced anal and oral sex, gang rape and stripping is being committed with impunity and there are reliable statistics and materials to support such activities. Further, non-recognition of identity of Hijras /transgender persons results in them facing extreme discrimination in all spheres of society, especially in the field of employment, education, healthcare etc.
Hijras/transgender persons face huge discrimination in access to public spaces like restaurants, cinemas, shops, malls etc. Further, access to public toilets is also a serious problem they face quite often. Since, there are no separate toilet facilities for Hijras/transgender persons, they have to use male toilets where they are prone to sexual assault and harassment. Discrimination on the ground of sexual orientation or gender identity, therefore, impairs equality before law and equal protection of law and violates Article 14 of the Constitution of India.
Main article: Transsexuality in Iran
Beginning in the mid-1980s, transgender individuals were officially recognized by the government and allowed to undergo sex reassignment surgery. As of 2008, Iran carries out more sex change operations than any other nation in the world except for Thailand. The government provides up to half the cost for those needing financial assistance, and a sex change is recognised on the birth certificate.
Main article: LGBT rights in Japan § Transgender issues
On 10 July 2003, the National Diet of Japan unanimously approved a new law that enables transsexual people to amend their legal sex. It is called 性同一性障害者の性別の取扱いの特例に関する法律 (Act on Special Cases in Handling Gender for People with Gender Identity Disorder) The law, effective on 16 July 2004, however, has controversial conditions which demand the applicants be both unmarried and childless. On 28 July 2004, Naha Family Court in Okinawa Prefecture returned a verdict to a transsexual woman in her 20s, allowing her family registry record or koseki to be amended as she was born a female. It is generally believed to be the first court approval under the new law. Despite the fact that sex reassignment surgery and hormone replacement therapy are mandatory for a legal sex change, it is not paid for by national health insurance.
Main article: LGBT rights in Malaysia § Gender identity and expression
There is no legislation expressly allowing transsexuals to legally change their gender in Malaysia. The relevant legislations are the Births and Deaths Registration Act 1957 and National Registration Act 1959. Therefore, judges currently exercise their discretion in interpreting the law and defining the gender. There are conflicting decisions on this matter. There is a case in 2003 where the court allowed a transsexual to change her gender indicated in the identity card, and granted a declaration that she is a female. However, in 2005, in another case, the court refused to amend the gender of a transsexual in the identity card and birth certificate. Both cases applied the United Kingdom case of Corbett v Corbett in defining legal gender.
Main article: LGBT rights in Pakistan § Transsexualism
People have started accepting acts of sex reassignment surgery to change their sex as a norm either compelled by gender dysphoria or just for the sake of it. There are situations where such cases have come into the limelight. A 2008 ruling at Pakistan's Lahore High Court gave permission to Naureen, 28, to have a sex change operation, although the decision was applicable only towards people suffering from gender dysphoria.
In 2009, the Pakistan Supreme Court ruled in favour of a group of transvestites. The landmark ruling stated that as citizens they were entitled to the equal benefit and protection of the law and called upon the government to take steps to protect transvestites from discrimination and harassment. Pakistan's chief justice Iftikhar Chaudhry was the architect of major extension of rights to Pakistan's transgender community during his term.
There are anti-discrimination laws in employment for transgender or transsexual people (known as Khuwaja Sira, formerly hijra, or Third Gender).
And there are anti-discrimination laws in the provision of goods and services for transgender or transsexual individuals (known as Khuwaja Sira, formerly hijra, or Third Gender).
The Supreme Court of the Philippines Justice Leonardo Quisumbing on 12 September 2008, allowed Jeff Cagandahan, 27, to change both his birth certificate, gender and name from Jennifer to Jeff, to male: "We respect respondent’s congenital condition and his mature decision to be a male. Life is already difficult for the ordinary person. We cannot but respect how respondent deals with his unordinary state and thus help make his life easier, considering the unique circumstances in this case. In the absence of a law on the matter, the court will not dictate on respondent concerning a matter so innately private as one's sexuality and lifestyle preferences, much less on whether or not to undergo medical treatment to reverse the male tendency due to rare medical condition, congenital adrenal hyperplasia. In the absence of evidence that respondent is an 'incompetent,' and in the absence of evidence to show that classifying respondent as a male will harm other members of society [...] the court affirms as valid and justified the respondent's position and his personal judgment of being a male." Court records showed that – at 6, he had small ovaries; at 13, his ovarian structure was minimized and he had no breasts and did not menstruate. The psychiatrist testified that "he has both male and female sex organs, but was genetically female, and that since his body secreted male hormones, his female organs did not develop normally." The Philippines National Institutes of Health said "people with congenital adrenal hyperplasia lack an enzyme needed by the adrenal gland to make the hormonescortisol and aldosterone.
This, however, only applies to cases involving congenital adrenal hyperplasia and other intersex situations. The Philippine Supreme Court has also ruled that Filipino citizens do not have the right to legally change their sex on official documents (driver's license, passport, birth certificate, Social Security records, etc.) if they are transsexual and have undergone sexual reassignment surgery. The Court said that if the man, now anatomically a female, were to be allowed to legally change his sex it would have "serious and wide-ranging legal and public policy consequences," citing the institution of marriage in particular.
Main article: LGBT rights in South Korea § Transgender rights
In South Korea, it is possible for transgender individuals to change their legal gender, although it depends on the decision of the judge for each case. Since the 1990s, however, it has been approved in most of the cases. The legal system in Korea does not prevent marriage once a person has changed their legal gender.
In 2006, the Supreme Court of Korea ruled that transsexuals have the right to alter their legal papers to reflect their reassigned sex. A trans woman can be registered, not only as female, but also as being "born as a woman."
While same-sex marriage is not approved by South Korean law, a transsexual woman obtains the marital status of 'female' automatically when she marries to a man, even if she has previously been designated as "male."
In 2013 a court ruled that transsexuals can change their legal sex without undergoing genital surgery.
A majority of countries in Europe give transgender people the right to at least change their first name, most of which also provide a way of changing birth certificates. Several European countries recognize the right of transsexuals to marry in accordance with their post-operative sex. Croatia, Czech Republic, Denmark, Finland, France, Germany, Ireland, Italy, the Netherlands, Norway, Poland, Portugal, Romania, Sweden, Spain, and the United Kingdom all recognize this right. The Convention on the recognition of decisions regarding a sex change provides regulations for mutual recognition of sex change decisions and has been signed by five European countries and ratified by Spain and the Netherlands.
Main article: LGBT rights in Finland § Gender identity and expression
In Finland, people wishing to change their legal gender must be sterilized or "for some other reason infertile". A recommendation from the UN Human Rights Council to eliminate the sterilization requirement was rejected by the Finnish government in 2017.
Main article: LGBT rights in France § Gender identity and expression
In France, there is currently no law that defines sex-change procedures. However, it is possible to ask for a sex- or a name change before the Court. The judge decides to grant or refuse the change.
Main article: Transgender rights in Germany
Since 1980, Germany has a law that regulates the change of first names and legal gender. It is called "
Legal identity change
No legal identity change
Before August 30, 2016, getting stitches at age seven was the most time Emmie Smith had ever spent in a hospital.
That morning, she swapped her plaid shirt and jean shorts for a gown, tucked her hair into a cap, and prepared for surgery to conform her anatomy to the gender she already identified with: woman. In the operating room with her was National Geographic photographer Lynn Johnson. She and Emmie hoped they could demystify the procedure by documenting it, close-up and unflinching. “It was stressful and scary at times, but it almost created a mission other than just recovery,” Emmie says. “We were making something together.”
It had been a year and a half since Emmie had first come out as a transgender woman on Facebook. Telling her family and friends had been an enormous relief. “I’m not sure I could have taken another few years of being closeted,” she says.
Still, it was a challenging time for her family. Her mother, Reverend Kate Malin, is a prominent figure in their Massachusetts town, and her identical twin sons Caleb and Walker were familiar fixtures at her Episcopal church. A month after Walker came out as Emmie, Malin stepped out from behind her pulpit and walked into the aisle. Halfway through her sermon she decided it was time to address the change in her family.
“As most of you know, Bruce and I have three children,” she began. “Caleb and Walker, who are 17, and 13-year-old Owen. Walker’s new name is Emerson, and she prefers Emmie or Em. She’s wearing feminine clothing and makeup and will likely continue to move in the direction of a more feminized body.”
Kate nervously revealed her struggle to the attentive New England crowd. “I feel broken much of the time,” she confessed. “I’ve wanted to run away, and I’ve prayed for this child that I would gladly die for, guilty for how much I miss the person I thought was Walker and everything I thought might be.”
After the sermon, the congregation engulfed her in a hug. Then they moved to offer words of support to the sandy-haired 17-year-old sitting in the pews. In the first of many awkward mistakes the family would later laugh about, it was Caleb—Emmie’s identical twin.
After that sermon, a “new normal” set in. On a Saturday night soon after, they had their first “out” outing. Kate took Emmie—whose hair was still short and chest was flat—to buy a prom dress at David’s Bridal. She feared someone would point or laugh, but the crowds of brides and bridesmaids in the dressing room offered only compliments.
Though she hadn’t initially considered surgery, after a couple of months Emmie had grown frustrated by the tucking and taping required to fit into women’s clothes. That fall, her senior year of high school, she decided to do it.
But waking up after the operation, Emmie felt none of the immediate relief she’d expected. In the recovery room her earbuds played a soothing loop of Bon Iver and Simon and Garfunkel, but it didn’t drown out her disappointment and fear. In retrospect, she thought, hadn’t life before been OK?
It wasn’t until months later, when she was home and could walk and sit again, that Emmie knew she’d made the right choice. “If you’re not living freely that’s time wasted, and I felt my time was wasted pretending to be a boy,” she says. “It was the best decision in my life.”
Now, halfway through a gap year, she’s applying to college theater programs. It’s strange, she says, knowing that her future classmates may watch Johnson’s film and learn the most intimate details of her life. She’s hopeful that her participation will evolve the public’s understanding of gender reassignment surgery. “It’s not science fiction or mythology,” Emmie says. “It’s what happens to women just trying to be at peace with themselves and their bodies.”