Congress Paper Abstract

Legal implications of the new ferment concerning transsexualism

Louis H Swartz, Ph.D, LL.M, R.N. Associate Professor of Law, School of Law, State University of New York at Buffalo. 

Email: lswartz@acsu.buffalo.edu

Can (and should) some version of transgender liberation triumph over more familiar policy alternatives (namely, deference to medical authority, piecemeal legal accommodation, non-recognition, and central regulation of sex reassignment) as the dominant legal response to transsexualism in Common Law countries, such as the U.K., U.S., Australia and New Zealand? This paper provides some of the wherewithal for answering that question. Reference is also made to the development of a somewhat diverse transgender cultural movement, and to activism within that movement possibly affecting future social and legal policy concerning transsexualism.

To liberate means to free from restraint. Transgender liberationism refers to a number of action programs aimed at reducing, eliminating, or reshaping social and legal restraints on individuals with respect to their defining or expressing their own gender or sex identities. Included in our discussion are proposals that sex reassignment surgery should be available upon request, that transsexualism should no longer be classified as a psychological disorder, that individuals should be free to define and express their own gender (or sex) identities without regard to criteria imposed by others, that a wide array of gender (or sex) identities should be ignored and if possible completely done away with, and that transsexuals should be encouraged to "come out" and should renounce the goal of "passing".

The paper discusses the elements of the classical medical model of transsexualism, now under considerable attack, and the rationale for piecemeal legal accommodation, which has been the dominant mode among favorable responses to transsexualism in the countries mentioned. Other familiar legal policy alternatives are also documented. The paper concludes with a tentative assessment of each of the alternatives discussed.

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