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Transsexuals: Legal considerations

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Abstract

An examination of case law in the United States leads to the conclusion that a physician or surgeon may, without fear of criminal liability, perform a sex reassignment operation upon a consenting adult or upon a consenting minor where permitted by statute. A transsexual, free from psychotic symptoms, can probably give an “informed consent” to a sex reassignment procedure but the consent, which should be in writing and witnessed by a third person, should be much more precise than the usual consent to surgical procedure. It should contain, for example, (1) name and age of patient (no operation should be undertaken without both parental approval and court authorization for a minor, unless otherwise authorized by law); (2) his or her educational background—especially if the patient has more than a high school education; (3) description of the procedure which the patient requests and consents to, i.e., removal of male genital organs and fashioning of an artificial vagina; (4) recognition by patient of general surgical complications; (5) recognition by patient of special complications of this procedure relating to urological or gynecological matters; (6) recognition by patient that he or she will no longer be able to function, sexually or procreatively, as a member of his or her anatomical sex (this could be covered in point 5 above); (7) recognition by the patient that this procedure will not change or alter his or her anatomical sex and that it is being requested and consented to solely to prevent deterioration of the patient's mental health. If contested by the State or by the spouse, it is questionable if a transsexual can contract a valid marriage. However, disclosure of prior sex or, at the very least, inability to procreate, in the case of the male transsexual, would remove any allegation or charge of fraud or misrepresentation.

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Footnotes

  1. Comment,Transsexualism, Sex Reassignment Surgery, and the Law, by Douglas K. Smith, CORNELL LAW REVIEW (to be published this fall); Comment,Some Legal Implications of the Transsexual Surgery, by R. Joel Tierney and Timothy M. O'Brien, HENNEPIN LAWYER (Minn.), November 1968.

  2. West California Penal Code § 203.

  3. 40-2-24, C.R.S. '63.

  4. See, e.g., 40-2-33, 40-2-34, 40-2-35, C.R.S. '63.

  5. 4 BLACKSTONES COMMENTARIES 205-206.

  6. Id.

  7. Green and Money (1969),Transsexualism and Sex Reassignment Johns Hopkins Press, Baltimore, Maryland, 258.

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  8. 22 and 23 Car. 2, c. 1 (1670).

  9. PERKINS, CRIMINAL LAW, 186-87 (2d. ed. 1969). See also 53 AM.JUR.2dMayhem and Related Offenses, 487, et seq. (1970); 57 C.J.S.Mayhem 461, et seq. (1948).

  10. See, e.g.,Foster v. People, 1 Colo. 293 (1871);Carpenter v. People, 31 Colo. 284, 72 P. 1071 (1903).

  11. See cases collected 16 A.L.R. 955, supplemented 58 A.L.R. 1320.

  12. Daggs v. State, 175 P. 266 (Okla. 1918);Choate v. Commonwealth, 195 S.W. 1080 (Ky. 1917);State v. Sheldon, 169 P. 37 (Mont. 1917);Cole v. State, 138 S.W. 109 (Tex. 1911);People v. Schoedde, 58 P. 859 (Cal. 1899);Kitchens v. State, 7 S.E. 209 (Ga. 1888);State v. Fry, 25 N.W. 738 (Iowa 1885);People v. Saylor, 149 N.E. 767 (Ill. 1925);People v. Kopke, 33 N.E.2d 216 (Ill. 1941);Mabry v. State, 110 So.2d 250 (Ala. 1959);Moore v. State, 3 Pin. Rep. 373 (Wisc. 1851);People v. Ney, 48 Cal.Rptr. 265 (1965).

  13. State v. Sheldon, 169 P. 37 (Mont. 1917). The court did not closely examine Blackstone, cited in its opinion, because if it had, it would have noted that castration had always been included within the common definition of mayhem. The case is thus an excellent example of judicial misunderstanding.

  14. Supra, note 16.

  15. People v. Kopke, 33 N.E.2d 216 (Ill. 1941). Mayhem may likewise occur where there is no actual physical contact, as with disabling by throwing acid or lye on one's person. See, e.g.,Hiller v. State, 218 N.W. 386 (Nebr. 1928);State v. Wingard, 177 S.E. 765 (N.C. 1970);U.S.A. v. Bando, 244 F.2d 833 (2nd Cir. 1957);State v. Benjamin, 132 N.E.2d 761 (Ohio 1956); ann. 58 A.L.R. 1328.

  16. Moore v. State, 3 Pin.Rep. 373 (Wisc. 1851);Kitchens v. State, 7 S.E. 209 (Ga. 1888).

  17. 3 Pin.Rep. 373 (Wisc. 1851).

  18. 7 S.E. 209 (1888).

  19. Article 1168, V.A.P.C. SeeBarton v. State, 282 S.W.2d 237, involving a prosecution under this statute where the defense was allowed to introduce testimony, apparently in mitigation of punishment, “that the loss of onlyone testicle would not affect a man's social standing with the opposite gender.”

  20. 79 Cal.Rptr. 359 (1969).

  21. 15Ops. Attny. Gen. 100 (Cal. 1950).

  22. Griswold v. Connecticut (1965), 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510.

  23. Supra, n. 24 at 365.

  24. Shaheen v. Knight, 11 Pa.Dist. & Co.2d 41 (Pa. 1957).

  25. Supra, n. 24 at 366.

  26. Supra, n. 28 at 42.

  27. Christensen v. Thronby, 255 N.W. 620 (Minn. 1934).

  28. Supra, n. 28 at 45 and 46. See also 16 A.B.A.J. 158 (1930); 93 A.L.R. 573; 35 A.L.R.3d 1444, concerning the legal aspects of nontherapeutic sterilization.

  29. 120 S.E.2d 580.

  30. See 86 A.A.R.2d 268 for annotation on consent as defense to charge of mayhem.

  31. Supra, n. 33.

  32. Supra, n. 34.

  33. Note,The Sex-Change Operation: Two Interesting Decisions, by S. A. Strauss, 84 SO.AFR.L.J. 214 (1967). Note,Sex-Change Operations and the Law, by B. v. D. Van Niekerk, 87 SO.AFR.L.J. 239 (1970);Transsexualism and the Law, by S. A. Strauss, COMPARATIVE AND INTERNATIONAL LAW JOURNAL OF SO. AFRICA, Nov. 1970.

  34. Supra, n. 2, Comment,Transsexualism, Sex Reassignment Surgery, and the Law, by Douglas K. Smith, CORNELL LAW REVIEW (to be published this fall).

  35. Supra, n. 37.

  36. Id.

  37. Journal de Tribunaux 635 (1969).

  38. In Re: Leber (Neuchatel Cantonal Ct., July 2, 1945).

  39. 2 ALL.E.R. at 43.

  40. See, e.g.,Cady v. Fraser, 122 Colo. 252, 222 P.2d 422 (Colo. 1950).

  41. 40 Misc.2d 380, 270 N.Y.S.2d 319 (Sup.Ct. 1966).

  42. Report by the Commission on Public Health, The New York Academy of Medicine,Change of Sex on Birth Certificates for Transsexuals, 42 BULL.N.Y.ACAD.MED. 721, 723–25 (1966).

  43. SeeBrowne v. Smith, 119 Colo. 469, 205 P.2d 239 (Colo. 1949) and cases collected 9 A.L.R.2d 964.

  44. 41 AM.JUR.Physicians and Surgeons § 108 (1942); see cases collected in 76 A.L.R. 562, supplemented 139 A.L.R. 1370, on consent as a condition of right to perform surgical operations.

  45. See cases collected 56 A.L.R.2d 695; HOSPITAL LAW MANUAL, Health Law Center (1959), Univ. of Pittsburgh,Consents ¶ 1–5, et seq.

  46. See, e.g.,Maercklein v. Smith, 129 Colo. 72, 266 P.2d 1095 (Colo. 1954).

  47. See, e.g.,Russell v. Harwick, 166 So.2d 904 (Fla. 1964).

  48. Pratt v. Davis, 224 Ill. 300, 79 N.E. 562 (Ill. 1906).

  49. See, e.g.,Anonymous v. State of New York, 236 N.Y.S.2d 88, (N.Y. 1963);Farber v. Olkon, 254 P.2d 520 (Cal. 1953);McCandless v. State of New York, 162 N.Y.S.2d 570 (N.Y. 1957).

  50. 71-1-1(1)(b), C.R.S. '63.

  51. See text and cases collected 41 AM.JUR.2dIncompetent Persons § 71 (1968).

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  52. See text and cases collected 41 AM.JUR.2dIncompetent Persons § 129 (1968). See also ann. 25 A.L.R.3d 1439 entitledMental Competency of Patient to Consent to Surgical Operation or Medical Treatment.

  53. SeeCorbett v. Corbett, 2 ALL.E.R. 33 (1970) at 42, wherein a provision such as No. 7 was expressly approved. However, in the opinion of the writer, the consent quoted therein is not adequately detailed.

  54. For discussion and cases, seeLaw of Domestic Relations, Homer H. Clark, Jr., Chapter 10.

  55. Burnell v. Dr. Roy J. Catazone, Superior Court, County of Orange, Civil Action No. 184985. Filed July 21, 1971.

  56. 40 U. OF C. L. R. 282, ff. 36, p. 287.

  57. Supra, n. 2, footnote 265. I would like to express my gratitude to Mr. Smith for making available to me a copy of his manuscript prior to publication so that duplication of research could be avoided.

  58. For discussion and collection of cases, see Clark,supra, n. 60, Chapter 2, p. 106, et seq.

  59. Supra, note. 64.

  60. For other material pertinent, see 4 AM.JUR.2d,Annulment of Marriage, § 12–18, § 31–34 (1962); 65 A.L.R.2d 776, for collection of cases discussing what constitutes impotency as grounds for divorce; 28 A.L.R.2d 499, for collection of cases discussing refusal of sexual intercourse as ground for annulment; 4 A.L.R.2d 227, for a collection of cases discussing avoidance of procreation of children as grounds for divorce or annulment of marriage; Robert Kingsley,Fraud as a Ground for Annulment of a Marriage, 18 SO.CAL.L.R. 213 (1945); see alsoFreitag v. Freitag, 242 N.Y.S.2d 643 (N.Y. 1963); andSantos v. Santos, 90 A.2d 771 (R.I. 1952), discussion as to homosexuality as ground for divorce or annulment.

  61. 2 ALL.E.R. 33 (1970).

  62. Id.

  63. Colorado, as with many other states, has abandoned the old technical distinction between a void and a voidable marriage and allows the court to award custody, support money for children, suit money, court costs, and attorney fee. 46-3-6, C.R.S. '63. Presumably, this would not include alimony. For cases discussing right to an allowance of permanent alimony in connection with a decree of annulment, see 54 A.L.R.2d 1410 (1956). See alsoPerlstein v. Perlstein, 204 A.2d 909 (Conn. 1964), and Clark,Law of Domestic Relations, pp. 120 and 135, for a discussion of the implications of annulment decrees.

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  1. University of Colorado, Boulder, Colorado, USA

    John P. Holloway J.D. (Resident Legal Counsel, Assistant Attorney General)

  2. State of Colorado, USA

    John P. Holloway J.D. (Resident Legal Counsel, Assistant Attorney General)

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Holloway, J.P. Transsexuals: Legal considerations. Arch Sex Behav 3, 33–50 (1974). https://doi.org/10.1007/BF01541041

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