Submission from the Gender Identity Research and Education Society (GIRES)

28 June 1999

Miss Linda Henshaw
Home Office, Constitutional Unit
Constitutional and Community Policy Directorate
Queen Anne’s Gate,
London SW1H 9AT

Dear Miss Henshaw,

The Gender Identity Research and Education Society, GIRES, is grateful to you for inviting the charity to comment on the the issues being addressed by the Inter-Departmental Working Group on Transsexuals.  Accompanying this response to your invitation are two documents:

1. This charity’s annual report and accounts.  The Working Group should find it helpful to have this description of our objects and the work we are undertaking.
2. A scientific article by Professor Milton Diamond and Professor Kenneth Kipnis.  This was awarded the GIRES Research prize for 1999.  It was published in the Winter 1998 issue of the Journal of Clinical Ethics, under the title “Pediatric Ethics and the Surgical Assignment of Sex”.  The article contains information which is highly pertinent to the Working Group’s deliberations.  We will refer to it in the course of our response and believe that the Working Group may well wish to have the entire piece.  GIRES has also consulted a range of other scientific publications.  A list is attached of those to which reference is made in this response.

GIRES has discussed the conclusions and recommendations contained in the article by Professor Diamond and Professor Kipnis with a number of members of the UK medical profession who have expert knowledge of this field.  The information and advice they have provided on UK practice and experience have been highly valuable in testing whether, and confirming that, the professors’ article and the other scientific publications we have cited are highly relevant to the issues on which GIRES herewith submits its comments to the Working Group.

In this submission, GIRES:

1. Describes the wider scientific context within which the issues being considered by the Working Group should be placed;
2. Identifies the specific scientific factors which bear on those issues;
3. Examines the societal difficulties caused by the present regime under which birth certificates are issued without regard to the relevant scientific factors;
4. Recommends modifications to the present regime which will eliminate the problems which it creates.

The scientific context

The scientific community and the medical profession recognise that the two terms, “gender” and “sex”, have distinctively different meanings.  “Gender” differs from “sex” in that, whereas “sex” is usually thought of as representing the composite of bodily characteristics, “gender” represents the psychological and emotional identification within the individual’s brain as either male or female (reference number 1).

The article by Professor Diamond and Professor Kipnis describes on pages 403 and 404 the most important characteristics that enable scientists and medical doctors to classify each person as being within the male or female “gender”.  The way in which “gender” is almost always ascertained in infants is through examination of their “sexual organs”, i.e. genitalia and gonads.  In almost all cases, these are typical of one “gender” or the other.  As individuals develop from infancy through childhood and adolescence into adulthood, their “sexual organs” usually enable them to undertake “sexual functions”, i.e. erotic arousal, sexual intercourse and reproduction.  The “sexual functions” too are usually consistent with the originally ascertained “gender”.  Other behaviours such as selection of clothing and hairstyle are also usually consistent.  Importantly, too, each individual’s sense of his or her own innate male or female “gender identity” is most likely to conform to the original classification.  An individual’s chromosomal pattern is also usually found to be consistent with the ascertained “gender identity”.

The general public is much less aware of the distinctive differences between “gender” and “sex”.  Most people never have the need even to consider the matter.  Almost all infants can be reliably categorised as male, “it’s a boy”, or female, “it’s a girl”, based on the most obvious grounds for classification which are manifest at birth, the “sexual organs”.  Fortunately, in the vast majority of cases, that classification remains appropriate throughout the remainder of the infant’s life.

The foetal environment accounts for some of the most significant programming of health and behaviour (reference number 2).  The professors’ article describes on page 404 the scientific evidence that in human beings, as in other animals, the “gender identity” along with “sexual organs” and prospective “sexual functions” develop during gestation.  Usually, the pattern that eventually emerges is that all “sexual organs”, “sexual functions” and “gender identity” are congruent and unambiguously either male or female.  The article describes how the hormonal exposures during gestation affect the central nervous system, notably the brain, and cause subsequent behaviours to be either typically male-gendered or female-gendered.  They also describe the instances in which, infrequently, the hormones to which the foetus is exposed and its unusual genetic receptivity to those hormones cause variations in “sexual organs” and/or “sexual functions” which consequently diverge from the innate male or female “gender identity” These variations and the resultant incongruities are described by scientists and medical doctors as “intersex” conditions.  While conveniently short, this term inadequately conveys the complexity and wide range of the incongruities between “sexual organs” and “sexual functions”, on the one hand, and innate “gender identity”, on the other.

The medical treatments provided for “intersex” conditions aim to eliminate or at least reduce the unusual developments of “sexual organs” and consequent “sexual functions” and the incongruities between these bodily characteristics and what is ascertained or assumed or, worse, intended to be the infant’s “gender identity”.  The treatments often commence immediately after birth but may be undertaken at any age after such a condition has been diagnosed.  In some instances, that diagnosis may not be made until adulthood, especially when the unusual nature of a person’s “sexual organs” and/or “sexual functions” is not marked or the incongruity between these characteristics and “gender identity” has not been perceived during infancy and adolescence.  Diagnosis may also be delayed by the strong pressures upon the individual with an “intersex” condition to ignore, deny and/or conceal it within his or her family, social or working circles.

As might be expected from the information provided in the article he has co-authored with Professor Kipnis, Professor Diamond states in a subsequent article his opinion that transsexualism is an intersex condition of the brain (reference number 3).  This view has been endorsed for many years by at least some of the members of the UK medical profession (reference number 4).

We must warn the Working Party that the use of the term “transsexual” in its terms of reference is no longer appropriate.  It was adopted by the medical profession in the early 1950s as an adjective to describe a group of patients being assisted through surgical, hormonal and psychiatric means to modify to whatever degree was possible and appropriate their “sexual organs” and “sexual functions”, as well as their physical appearance, to make them congruent with their innate “gender identities” (reference number 5).  The two terms, “sex” and “gender”, were not at that time defined and distinguished with adequate clarity.  As with “homosexual”, the term “transsexual” became a convenient noun.  The use of any term among lay people that contains the word “sex” raises prurient images and inhibits their understanding of the true process that the patient undergoes.

The adjective “transsexual” no longer seems, even within scientific and medical circles, to be an accurate term to describe the ongoing procedures by which doctors refashion their patients’ “sexual organs” and as a result modify their “sexual functions” to achieve congruence with their “gender identities”.  It is totally inappropriate to use the adjective to describe the medical condition being treated, and especially so to describe the people who undergo these procedures.  The terms now more usually used within scientific and medical circles to describe the condition are either “gender identity disorder” or “gender dysphoria”.  The procedures are now frequently described within medical and scientific circles as “gender reassignment”.  However, that is misleading because it is the “sexual organs” and “sexual functions” which are actually being changed rather than the “gender identity” A more meaningful term which could be used as an adjectival phrase or noun is “gender confirmation”.

Regrettably, unlike “transsexual”, the term “gender confirmation” does not roll readily off the tongue.  The use of the term “transsexual” continues.  It is easy to use and there is widespread ignorance of its inaccuracy.  Regrettably, we must expect the term “transsexual” to be very difficult to dislodge from the vocabulary of most members of society.

Notwithstanding this probability, we strongly urge the members of the Working Group to avoid very deliberately any further use of the term “transsexual”, either as an adjective or as a noun, to describe the people whose needs they have been mandated to consider.  Furthermore, we propose that the Working Group’s report should clearly inform the policymakers whom it is advising how very inappropriate it is to use this term.

For the sake of accuracy and clarity the Working Group should adopt the following terms:

• “intersex conditions”, to describe the range of conditions that affect the people whose needs it is considering
• “gender confirmation”, to describe the medical procedures which are prescribed to deal with their conditions
• “persons who undergo gender confirmation”, to describe those people.

The Working Group needs to be aware that, in some cases, the “gender confirmation” procedures now prescribed for dealing with “intersex conditions” in infants, are highly inappropriate and harmful.  In pages 399 and 400 of their article, Professor Diamond and Professor Kipnis cite a number of instances where “gender confirmation” surgery conducted on infants was later proved to be incorrectly prescribed.  Indeed, there are many cases in the USA in which the ultimately discovered “gender identity” differs from that which was ascertained or assumed when the decision was made to undertake surgery on infant (reference number 6).  Based on our own interviews, we can state that such mistakes also occur in the UK.  The professors, on page 406, and UK medical practitioners insist that early surgery can only be prescribed with certainty for a limited group of intersex conditions: bladder exstrophy and certain types of congenital adrenal hyperplasia.  However, for other conditions, there is now a strong weight of scientific and medical opinion in favour of deferring irreversible procedures, including surgery and certain hormone treatments.  To permit time for the child’s “gender identity” to be established with confidence, puberty is sometimes delayed through the administration of medication to suppress the hormonal changes that would otherwise provoke its onset.

Every early attempt to ascertain “gender identity” can only result in a provisional conclusion (reference number 7).  As Professor Diamond and Professor Kipnis advise, on page 405, it is not possible to predict with confidence the gender that an intersexed newborn or indeed any infant will settle into during adulthood.

Nonetheless, on page 406, Professor Diamond and Professor Kipnis advise that a gender should be selected in which to rear a child with an “intersex condition”.  This advice is echoed by the members of the UK medical profession with whom we have discussed this issue.  The professors also recommend that this gender should, however, be provisional, subject to revision by the child as he or she matures.  We have also found expert support for that recommendation in the UK.

Specific factors that relate to the scientific and medical data

The present regime for the issue of birth certificates in the the UK requires a virtually immediate decision on the “sex”, and by inference “gender identity”, of every infant That causes four specific problems.

1. In the light of the discussion above, the use of the term “sex” is inappropriate The maleness or femaleness of an infant’s sexual organs is not an accurate basis for predicting eventual “gender identity” which can only be ascertained provisionally at birth Even a chromosome test, which is currently a very rare occurrence, would not be a wholly reliable predictor.  In any case, information about an individual’s “sexual organs” and predicted “sexual functions” deserves privacy and should certainly not appear on any document which the individual might have to show to a non medical person.  How individuals see themselves and how they are seen by others, is in terms of “gender identity”.
2. That requirement for an almost immediate decision in cases of infants born with ambiguous “sexual organs”, does not allow adequate time for a thorough evaluation of their conditions.  Moreover, that decision may have to be made by a medical practitioner whose acquaintance with the conditions and understanding of the related problems may be severely limited.
3. “Gender identity” is inferred from the “sex” entry on the birth certificate This classification cannot, at present, be readily altered so that a revised certificate can be issued This reinforces the notion that the individual’s “gender identity” has thereby been determined once and for all and will remain unchanged throughout his or her lifetime, rather than having being provisionally assigned, as recommended by scientists and medical doctors.
4. If the ultimate “gender identity” is different from that ascertained by examining an infant’s “sexual organs” at birth, only in highly exceptional circumstances can the “sex” entered on the birth certificate be reversed.  This requires the presentation of convincing medical evidence that the decision was incorrect based on the information available at the time that it was made In fact, the scientific and medical evidence is that every such decision taken at birth is prone to error whether or not an “intersex” condition has by then been diagnosed because it is, at that time, impossible to predict with certainty any infant’s ultimate “gender identity” Hence, it is always incorrect to make any such decision at birth.

Societal difficulties

The requirement to complete, almost immediately after birth, a certificate recording an infant’s “sex” and thereby fixing its “gender identity” compounds the immense stress which society imposes on parents concerning this issue.  The norm in Western societies is that every person should be unambiguously male or female.  Ambiguity can cause social stigma for the affected individual and the consequent connotation of immorality and inhumanity (reference number 8).  This is an outcome which all parents wish to avoid for their children and, by association, for themselves.  In the UK, only a few marriages survive the stress caused by the birth of a child with a diagnosed “intersex” condition.

Based on the incidence of I in 2,000, given on page 401 of the article by Professor Diamond and Professor Kipnis, the current number of individuals in the UK population, who were born with “intersex” conditions amounts to about 30,000.  The Working Group needs also to take account of the impact these conditions have on the immediate family, especially the parents, of an individual who has an “intersex” condition.  The Group’s work will potentially affect the lives of around 100,000 people.

Given the scientific and medical evidence in favour of deferring the final decision on “gender identity”, parents should be encouraged to be more relaxed about this issue rather than forced by the birth certificate regime to make a rushed but binding and possibly inappropriate choice.

There is every reason to question why “sex” should be recorded, at all, on the birth certificate.  There are strong scientific, medical and societal reasons to discontinue this requirement.  There is no requirement for instance to record race, colour, physical or mental disabilities or any other distinguishing physical features.

Nor is there any reason whatever to require instead that “gender identity” be recorded, even provisionally.

If society is to provide equal opportunities for all its members, there is no point at all in categorising anyone in any fashion that might be the basis for unfair discrimination.  Indeed, it is potentially harmful to do so.  The stress caused to an individual when required to show a birth certificate which indicates a “sex” which is different from that individual’s “gender identity” is unwarranted and completely avoidable.

Recommendations

GIRES strongly favours allowing each individual to manifest the “gender-identity” in which he or she wishes to be recognised and accepted by society.  An individual’s awareness of his or her “gender identity” may not emerge and be permanently accepted until post puberty.  The “gender identity” thereby established may differ from that ascertained by others in that person’s infancy.  If there is a need to reassess the initially ascertained “gender identity” and discard it as mistaken, society should readily accept and support that change

A much more flexible arrangement is urgently required for those individuals who wish to discard the incorrect “gender identity” that has been assigned to them.  The legal difficulties of changing a record of historical fact should be overcome.  The following ways of changing the birth certificate regime should be adopted:

1. There should be no requirement to show “sex” or “gender identity” on birth certificates.  This should apply to all births registered after the date that this measure is enacted;
2. In all cases where a person wishes to discard a “gender identity” that was based on the “sex” entered on a birth certificate issued before the new measures come into force, the new design of birth certificate should be issued that no longer includes this information.  This simple arrangement would avoid the need to change what might still be regarded in law as a record of historical fact;
3. In the absence of further changes in the law, it may be necessary, for certain purposes such as marriage, to produce evidence of the general maleness or femaleness of “sexual organs” and “sexual functions”.  For all persons born after the date when the requirement to record “sex” on birth certificates ends, the evidence would be provided by means of a medical certificate;
4. If the “sex” recorded on a person’s old style original birth certificate, i.e. one that was issued before the new arrangements are implemented, is clearly incongruent with the current innate “gender identity” and that person has received medical treatment so that the “sexual organs” and “sexual functions” are, as far as is appropriate in this individulal’s case, congruent with that “gender identity”, a medical certificate to that effect will be accepted as adequate evidence of maleness or femaleness.  It should not be necessary to demonstrate that the decision recorded on the original birth certificate was incorrect based on the information available at the time that it was made.  This facility would be available to anyone diagnosed as having an “intersex” condition, regardless of age.  It should be accepted that “intersex” conditions include those previously categorised only as “transsexualism”, “gender dysphoria” or “gender identity disorder”.

The medical profession recognises “intersex” conditions and the “gender identity” problems that often accompany them.  It provides support, albeit imperfectly, for those affected Further support is provided by specialist voluntary groups.  However, society at large is still not adequately informed about these subjects nor is it sufficiently sympathetic to those whom they affect.

By recommending positive action on birth certificates, the Working Group will do more than help people to live in the “gender identity” that is right for each of them; such action will also raise public awareness of the need to respect the equal rights of those affected by the whole range of “intersex” conditions to live freely and enjoy the respect of others in their appropriate “gender identities”

Yours sincerely,
 
Bernard Reed
Chairperson

References