LAW ON SEX CHANGE

Need of the Hour

Anubhav Agarwal1

INTRODUCTION

Sex change is something, which has not received a public eye and has been far from any active debate in our country. Sex change or Sex Reassignment Surgery as medicos term it, is a kind of medical treatment that is possible due to advancement in medical science and technology. The people who undergo this kind of treatment are called transsexual people. According to the Wikipedia, popular encyclopedia, Transsexual people are persons who establish a permanent identity with the opposite gender to their birth sex and Sex Reassignment Surgery (SRS) includes the surgical procedures by which a person’s physical appearance and function of their existing sexual characteristics are changed to that of the other sex.

In our country wherein more than half of the population is of rural background, it would not be wrong to say that people are still unaware of the fact that Sex Reassignment Surgery is possible. Atleast 6 out of every 10 people will get a shock if they are told that a man can be turned into a woman and vice versa. The awareness about this medical advancement is very less and consequently there is no competent legislation concerning the rights and liabilities of the transsexual people in our country. Gender Reassignment is such type of technical advancement which has posed challenges to the present law and created legal difficulties in our country. Does systems have the ability to redefine such basic statuses as male and female, and how do these changes affect pre-existing relationships like marriage etc.

Recently there was a huge controversy about the dispute relating to property in Mafatlal family. Ajay Mafatlal, a member of Mafatlal family is supposed to have undergone a sex change operation to become a man. There were reports that it was done to gain access to the family property. The point to be emphasized here is, that as different legal rights and obligations flow with respect to person’s status as a man or woman, it becomes utmost necessary to ascertain the sex or gender of the person.

LEGAL IMPLICATIONS

There is much ambiguity with regard to the legal status of the person who has undergone the sex change operation as to after the operation whether the sex of the person should be taken as pre-operation one or should we assume the status of the sex to which he/she is now surgically assigned. Let us objectively analyse these options. The legal obligations or duties do arrive due to one’s sex, and the surgery establishes a new person with a new sexual status and thus, it is not possible to disregard the latter option. It would be foolish to say that the legal status of a person as a man or a woman is different from his actual status. Thus, in cases of successful reassignment surgery the legal status should be taken to be the assigned one. But now, this seems to be only one side of the coin. The other side is that if this was supposed law then people could change sex and undergo SRS to avail some undue advantage out of it or misuse it in any other sort of way, which it could possibly be done. Thus, the circumstances in which, and the purposes for which, Gender Reassignment is recognized are matters of importance. These are not easy questions. The circumstances of transsexuals vary widely. The distinction between male and female is material in widely differing contexts. Nevertheless several issues arise which create a conflicting situation and these are dealt with as following.

ISSUES ON MARRIAGE

The most important sphere where SRS has created an ambiguity is the law on marriages. This mostly happens in countries where same sex marriages or homosexual marriages are not legally valid. When one of the spouse in a married couple successfully undergoes the surgery, it is pretty much evident that the marriage then would be considered to be a homosexual marriage. In case of M.T. v. J.T., where similar situation existed the New Jersey Superior Court ruled that “where a transsexual was born with physical characteristics of a male, but successful sex reassignment surgery harmonized her gender and genitalia so that she became a woman, such transsexual thereby became a member of the female sex for marital purposes and subsequent marriage to a male was not void” whereas a Ohio Probate judge has disagreed with this and ruled that Ohio law does not permit a transsexual, after surgery, to obtain a marriage license reflecting his new sex.

There have been some landmark judgments, which have acted as a catalyst in the growth of the issue concerning transsexuals. In 2002 the European Court of Human Rights gave decisions in cases of Goodwin v. United Kingdom and I. v. United Kingdom wherein it was stated that the fact that it was impossible for British transsexuals to marry in their assigned gender was contrary to the European Convention on Human Rights. Subsequently UK was found to have breached Article 8 and Article 12 of the Convention (the right for private life and the right to marry).

The House of Lords in Bellinger v. Bellinger, dismissed an application for recognition of a marriage celebrated by a transsexual in her acquired gender. It nonetheless made a declaration that section 11(c) of the Matrimonial Causes Act was incompatible with the European Convention, and the government should enact, as a matter of urgency, the necessary measures to put an end to the incompatibility.

The basic question is whether undergoing transsexual surgery is merely grounds for divorce or annulment, or is it actually the termination of the legal marriage as it stands, without the need for state intervention. The laws in our country are presently uncertain on this point and sex change is no explicit ground of divorce, but at the same time same sex marriages are not legally valid. It is not known that whether or not transsexuals have right to marry and what happens in situation when one of the spouse in successful married couple undergoes the operation. These are questions, which are substantial and need to be answered.

PERSONAL LAWS AND RESERVATION

Another uncertainty lies in the laws of succession and the personal laws of respective religion. Muslim law does not have any explanation as to the status of a person who has changed the sex. Nor does Hindu law state any provision or clause, which would clarify the situation. The laws of succession do have different rights and liabilities for male and female in each of personal laws. Now again the question comes that after the surgery the person would be subject to the rights and liabilities of the male or the female. Here it is pertinent to note that if the sex after operation is recognized, then people may change sex to derive undue advantage as in the case of succession where males generally hold an upper hand.

Similarly the dispute arises in case of reservation where, in our country, seats are reserved for female candidates in almost every field. Now, in this case males may undergo operation to get advantage and avail the opportunity of reservation, which would be in that case unfair. Apart from this issues also arise in areas such as the right to change one’s name, eligibility to compete in single sex sports, and insurance and social security where the benefits available depend on one’s sex.

ALTERATION IN DOCUMENTS

Unlike in our country, several others have realized that social security situations and the passport situations are not same in cases of successful surgeries. Moreover, there are innumerable
number of documents, which have importance and are based upon the legally valid gender. Documents such as birth certificate, and passport need to be changed. According to a news report recently,
when Mr. Mafatlal applied for a fresh passport due to his operation, the passport authorities were uncertain in choosing the course of their action but they did the change readily. This was because of absence of any competent legislation on the same issue.

INTERNATIONAL SCENARIO

The scenario prevailing internationally is much different from the one prevailing in our country. Several countries have already enacted laws to regulate the issues concerning transsexuals. South Africa has passed “Alteration of Sex Description and Sex Status Act” which would make provisions for people who had undergone sex change. In Australia “Sexual Reassignment Act, 1998” is present which has varied provisions regarding reassignment procedures, issue of recognition certificates etc. All European Union Member States except UK and Ireland already give legal recognition to gender change, as do many other countries in Europe and the Commonwealth and many American States. It would be most pertinent to note the developments in UK on this issue.

The Interdepartmental Working Group on Transsexual People was set up by government of UK in April 1999 to consider, with particular reference to birth certificates, the need for appropriate legal measures to address the problems experienced by transsexual people. Also Sex Discrimination (Gender Reassignment) Regulations, 1999, were introduced which amended the Sex Discrimination Act, 1975 to protect transsexual people against discrimination in employment and vocational training. Recently, “Gender Recognition Act, 2004” was passed after much debate in United Kingdom. This Act would give transsexual people the legal right to live in their acquired gender and is supposed to be an exhaustive legislation on this issue.

MORALITY OF OPERATION AND SOCIAL HURDLES

Apart from the legal implications arising out of Sex Reassignment Surgery, the morality of sex change operations is one another major issue. There has been a hue and cry regarding the questions whether sex change operation stands true on the touchstone of morality. In other countries The Church have always condemned this kind of medical alteration being done in the people. It has been felt that to destroy organs purposefully that are healthy and functioning, and to try to create imitation organs which will never have the genuineness and functioning of authentic organs is improper and lacks charity. Also, it is said that the cause of transsexualism appears to stem from psychological development, and thus it should be treated with psychotherapy, not with the surgical methods. Another practical difficulty, which arises from the operation, is that the person will lose his fertility. It means that a male transsexual will never be able to ovulate or conceive and a female transsexual will never be able to germinate
sperm. Now in this case, it is to be seen that whether or not SRS is socially viable in our country. In India, which is a country where the moral standards are kept upto the highest level; it would be interesting to see the reaction of the people on the same.

CONCLUSION

Sex change operations of transsexual persons can nowadays be considered to be a normal and regular medical treatment in many countries. In India, however, the lack of special legislation creates a difficult situation for transsexuals. It creates a situation of uncertainty for doctors and transsexual persons. The transsexuals in India, seeking sex-change operation, either travel to other countries in which such operations are legal, or have the operations done secretly in private clinics somewhere in the country itself.

First and foremost, it should be seen that whether or not the sex reassignment surgery is justified.
The decision should be made taking social issues
into consideration because the social scenario prevailing in India may not be similar to other countries where the surgery is legally valid and socially accepted.

This legal uncertainty then should be resolved, not by a judicial interpretation or by analogy, but by
new legislation dealing particularly with this matter. This legislation should be as clear and as wide as possible so as to regulate all legal conditions and effects of sex change. Also, the legislation should be strict enough so as to prevent people from misusing it and if there is any sort of misuse then proper and effective punishment should be incorporated in the Act itself. Through this new concept, Indian legislation would no longer hinder sex changes, provided that it is medically prescribed and performed with all due medical care.

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1. Anubhav Agarwal is a III year BBA LL.B. student of Symbiosis Society’s Law College, Pune.