Congress Paper Abstract

The Good, the Bad and the Law - Austria’s legal response to Transsexuality

ELIZABETH GRIEF, JOHANNES KEPLER UNIVERSITY, LINZ, AUSTRIA

Although law does not define the term “gender”, most legal systems are based on the “fundamental knowledge” that human beings only exist either as men or women. This conviction is basically shaken by people who change their sex/gender during the course of life.

An analysis of the legal response to so called pre- and postoperative transsexuals exposes how sexual and gender normality is enforced by the terms of law. Down to the present day Austrian legislature has not implemented legal regulations concerning the situation of people with gender identity disorder. The access to gender re-assignement surgery as well as the possibility to change names and the civil and family status of postoperative transsexuals are merely regulated by the “transsexuality-decree” (german: “Transsexuellen-Erlass”) which is not obligatory to the courts. The refusal of state recognition if the requirements of this decree are not met by transsexuals causes a conflict between social reality and law which places the transsexual in an anomalous position.

This way of dealing with fundamental rights of personality in even less than terms of soft law is not only unconstitutional since it deprives concerned people from legal protection, it also unmasks heteronormativity as a powerful and exclusionary basis of the (Austrian) legal system. The present nexus of medicine and law in combination with the conviction that the “perfect sex change” is the invisible one excludes all those who do not match the strict conceptions of men and women.

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