Bellinger and Transsexuals
Bellinger V Bellinger case might lawfully be epitomized as clear and unbiased reference to putative gender-sex differentiating and even opposition. Social role of an individual is what apparently regarded as a reflection of his/her inner, biological role. Male and female interact and represent themselves in their respective gender roles as they are accostomed to and as it is their only way to fully reveal their personality, gender role being an essential part to it.
So far, within the academic notion of ‘sex’ or, if related to psychology, ‘sex identity’ two distinct and rather discrete categories, first denoting biological [inborn] components, second denoting acquired through socialization pattern of behaviour, were embraced to secure separate and considerate approaches. That gender role is a concept relating to second or ‘acquired’ group of elements is a fact which thus far scarcely entail any poisonous implication.
If there be a game participants to which are free to chose their gender role and are warranted, by the rules of the game, to be fully accepted at their new status, this status will for the purpose of the game mean a ‘carte blanche’ for any constructive self formation and assuming myriad of new social roles which spurrs the creativity of the participants. That game is very much alike a masquerade, where costumes and dresses are commonly known and recognizable and the owners of those costumes, impersonal as they are wearing their dominos, are treated as if being a true heroes.
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The rules of the game which sanctionize impersonation, in fact, inaugurate the spirit of mockery and futher creativity of individuals which, perdued by the cloak of assumed gender, depart further from the province prescribed by their sex role assigned as birth. In fact, this abstract situation or game is hardly ruled by any societal regulation or government statutues; it is inherently present in human communities which tend to dissociate into a number of nuclear communiteis which develope their internal regulations and are characterized by certain margin of deviation.
What really empowers the participants of that kind of abstract situation and actualize their further expansion is technical devices or ‘masks’ needed to successfully impersonate gender roles and special warrant that their will be accepted in their new acquired role. First creates the discourse of community, the accesability of technical devices draws the idea of the situation nearer to the partcipants; second creates continuum for their activity empowering scheme to expand and difining the extremities and limits of that expansion.
Far from stating the internal driving forces which rule the participants when they ‘jump in the game’ I would like to underscore the dialectics between transsexuals and doctors which is accountable for re-asserting transexuals’ subjectivity, providing them with technical means which greatly contribute to that subjectivity’s formation, and dialectics between transexuals and law. In Re Bellinger, several facts point out to the current state of limitations law and society encounter as regards patterns of cross-sexual behaviour and their possible legal implications.
It is clear enough that Mrs. Bellinger since her unsuccessful marrige to a woman which resulted in devorce as early as 1975 led a sexually deviant subjective life which found its expression in wearing womans dress and acting as a woman. That pattern of behaviour is characterictic of transvestites or cross-gender individuals which find sexual and/or cerebral gratification in assuming a gender role of woman by partial of complete cross-dressing and often (which is conditioned by a degree of boldness of a cross-dresser) venturing out into public .
As we also might know Mrs. Bellinger was rather radical in her endeavour and has completely assumed new gender role and, in fact, had disguised her male side until eventually gone through gender re-assingment procedure. Although, for the purpose of present consideration the fact of her going through sex re-assignment treatment is immaterial as far as it may only indicate her being extremely persistent in assuming characteristics of wanted gender.
The fact that she underwent operational treatment has no practical implications on the province of law concerned: it only designated that she been through treatment results of which are partially recognized by state and law in general and to that extent that she is entitled to correction of documents (passport, etc. ) That government corrects documents for the person which changed so profoundly that otherwise doing may impede his/her interaction with government and state services is absolutely reasonable practice.
When individual wishes to change a name he/she is also entiltled to the correction of personal data in the passport lest there be any confusions of the personality of passport holder. Now the question is are there any material differences in the eyes of the law between situation when individual chose to ungergo operational treatment and having done so needs to have the personal data typed in passport (together with photograph) corrected and that when individual chose to change, say, her marriage status and needs to have her personal data (last name) corrected?
I think, despite apparent difference of two cases, both of them involve substantial changes in person’s status which (changes) has to find their adequate reflection in official personal information. Initially, law is not concerned with changes or transformation person undergoes – it is only concerned with legal implications of those transformations or how they will affect legal status of individual should he participate in his new status within legal sphere.
To participate within legal sphere, to put it accurately, mostly means to partake in complex of relations subject to regulation of specific law or specific legal norms. Thus, though two cases are entirely different with respect to the nature of changes individual undergoes, legal implications of sex re-assignment procedure are somewhat limited by the current state of law which is reluctant to acknowledge validity of marriage between persons at least one of which participated to it not in his/her original sex, but has chosen to change that original sex and actually did so prior to the marriage .
It follows that as regards [spicific] law of family, individual that enjoyed legal recognition in general (recognition through correcting personal data, including name which indicate gender), is incapable of fulfilment his/her rights springing from that recognition in particular case and with respect particular province of law.
Thus, as far as nature of changes concerned apparently matters in the eyes of law, since it delegates rights upon person who changed the name as a result of personal wish and withholds the legal capabilities of those rights fulfilment in the case with men who changed the name as a result of personal wish to change sex and thus appropriate more coming feminine name, it proceeds that the fact of general aprobation of the sex-reassignment procedure and its results, which finds its expression in registering individual as a woman and entails legal rights and prefenrences capable of fulfilment in specific provinces of law (pension age and, what is more important, the right to marriage), does not mean that general aprobation’s universal validity – it instead means some kind of contingent validity of general recognition of status.
It practically means that general recognition is void as long as it does not entail recognition of persons rights in specific provinces of law (like labor law and family law). Particulary, the fact of gender re-assignment is immaterial to the case because neither it benefited the person any more than would do when testifying his/her expressed and extremal desire to posses the characteristics of opposite gender, nor it entailed some practical outcomes of government’s general recognition of the sex re-assignment fact when person was allowed to change a name in the passport. Thus far, I insist that Mrs. Bellinger was a transvestite which gone through gender re-assignment but the latter procedure did not qualitatively affect her legal status. As it is known from the case, the registrator did not ask Mrs.
Bellinger about her gender status and Mr. Bellinger himself was not willing to inform him. So, it will be reasonable to presume that if at the moment marriage took place Mrs. Bellinger did not actually do gender re-assignment but instead prefered cross-dressing as transvestites do the registrator would hardly have more doubts about the gender of fiancee than he actually had. The difference between pre-operational and post-operational positions of Mrs. Bellinger was rather internal of character and laid deep in her self perception which apparently was tending towards further unification with all that constitutued ‘feminine’. Even at the time when Mrs.
Bellinger still possesed secondary sexual atributes of male (penis) she also possesed a great deal of feminine traits and was very skilled at dressing woman clothes and make up. This allows for induction that it was not only after the operational treatment that Mrs. Bellinger did actually transformed in terms of gender as seen through public eyes. If transvestite looks skillful enough to pass the street and impart the idea of her ‘girlishness’ to every one looking at her, she, to certain degree, is a girl to herself at this moment and is, to absolute degree, a girl to society aroound her. When much of the things to visually transform boy into a girl was done and done with a good taste then nobody will distrust his/her feelings and venture to check her anatomical sex by pulling her skirts up.
Thus, it is apparent that transvestite radiates feminine gender when in public eye which certainly does not go without further affirmation of [her]self in that believe. It follows that category of gender which comprise number of biological and non-biological or acquired elements is construed through and within societal perception of what that gender (male/female) should look like . If the society is misled and perplexed that only means that ‘gender identity’ of some of its members went awray. The latter conceive the idea of gender in the context of ‘self construction’, ‘self transformation’ and doctor actually aid them in perpetuating that belief in contigency of gender .
That transvestite resort to special devices to assume the gender role and misled the society means that even without surgical treatment they may successfully socialize into society in the desired role and that actual sex reassignment does not have any implications other than on transvestite’s subjectivity and self perception, that is, no practical bearing on societal perception. At this point, if law is only concerned with empowering adequate socialization (securing the equality of rights and principle of genral equity and equlity) of individual in his/her gender role, then it precribes equality of scope of right which pertain to inborn woman and that which pertain to person gone through sex re-assignment.
On societal level, that equality is already established since everyone perceive trasvestite as a woman and naturally does treat her as a woman . Methodological problem here is that marginal transvestites which cross dress completely, live like women and express a strong desire to transform their bodies so that to alter their secondary sexual attributes into that which pertain to woman and, in whole, strive to unify with another gender totally abandoming their own original one, present a distinct group which needs both taxonomization and separate legal approach . As we said earlier, there will be no virtual difference for the registrator whether Mrs. Bellinger would have been through surgical treatment at the moment of marriage or not.
In the same manner, she will look equally feminine to people on the street before and after operation. The problem lays in her self perception. Acute desire to get rid of the abhorrant organs which (desire) borders with risc of self-mutilation or suicide was invoked by Harry Benjamine as reasons for surgical treatment of a patient. ‘Benjamine patient’ thus requires separate taxonomical niche and might also require medical and in extremal cases surgical treatment which , thus, looks akin to emergency surgical measures applicable to unstable patient. Surgical vocabulary has penetrated the terrain once inhabited by psychopathological terminology.
Treatment of such hard cases involving Marginal drive towards unification with other sex by arsenal of intense psychoterapy was rendered futile and changed for more radical, surgical and hormonal technologies. Although, it is within approach of psychoterapy that demand of sex change, which was crucial in disclosure of syndrome itself, was recognized to “cover over another form of subjectivity that are fundamentally destabilizing. ” It follows that emergency approach within which syndrome of expressed gender dysphoria taken at its extremity is only capable of rectification through surgical treatment intended at partial or full removal of secondary sexual attributes posseses not its past persuasiveness.
Rather, its thesis about demand for sex change which serves as signifier of the syndrome invites critics on the ground of its Although, “Benjaminian patient” as a product of doctors and patients dialectical development of “cohesiveness for a subjectivity [which] constantly [is] under threat of destruction” is very appealing to the law. The law may find its subject in the “Benjamine patient”. Thus created taxonomical niche entail various legal situations. Earlier, we considered the possibility of Mrs. Bellinger’s actual marriage (in terms of social recognition of their civil union) in case if she would not undergo sex re-assignment procedure and concluded that marriage will be not less socially valid under that conditions.
What if in her place was another person who only occasionally cross dress and does not wish to play that social role of woman forever? It is very possible that she would pass the social test and misled the public with its look but the degree to which she really needs that social and legal recognition is, presumably, incommensurable to that of Mrs. Bellinger. In this case, the fact that individual has undergone surgical procedure may testify her commitment to the purpose of ultimate unification with opposite gender (along the lines of ‘Benjamine patient’ approach) as well as underscore the intricasy of her psychosomatic neurosis ( psychopathology approach).
In any case, surgical treatment dialigns the group of Marginal transvestites from other, Nuclear ones . And similary to medicine which aids that marginal patients by delivering them from their detestable organs , law is called to facilitate their further socialization into society by resolving the internal pressure they feel as regards inability to lawfully participate in civil unions. That law is called upon to faciliate in internal self development and self apprehension is no new: it has incorporated norms securing the right of disabled and retarded which contribute to their self esteem and facilitate their internal development or prevents them from [the threat] of destruction of personality.
But is not it that law pre-maturely intervene into the relations which are to be at first clearified and agreed upon by the medical specialists and only then passed into the sight of law? Whether it us true or not that if there are presently two groups each of which has its explanation on what marginal transvestism is and how it should be treated then law is bound to side with one of those schools since no mutual agreement was developed? ‘Benjamine patient’ is very appealing taxonomical category which directly and logically connect Marginal transvestism (springing from expressedly antipathic reaction to individual original sex) and gender re-assignment treatment (which is deemed to be the only plausible resolution to thus posed problem).
But in the eyes of law transvestite which undergone sex re-assignment posseses no single distinct advantage as compared to that (transvestite) which did not been through that treatment. It is gender identity of individual that matters when considering the issue of legislative changes to Matrimonial Causes Act. In this respect, gender re-assignment procedure is not a conclusive step which defines those who are eligible for the right to marriage; it is only one of those steps which are directed by human identity and, through acquiring further visual and material semblance, incrementally lead to unification with desired sex. This road may prove to be infinite.
The position of gender re-assignment surgical procedure within the continuum of surgical procedures transexuals resort to allows for observation that transexuals, in fact, are continuously disturbed by abyss between them and ideal feminity (in case of men transexuals) and may never acquire bodily semblance enough to put their mind or gender identity at ease, that is to say that they are insecure in their feminity and their self apprehension is constantly impaired. Thus, it is impossible to render a transsexual somehow belonging to feminine gender solely on the ground of him/her being surgicaly treated. Rather, it is the expressed self apprehension as belonging to feminine gender that could make them what they want to be. This conclusion entails further ones.
The most prominent of them is that pronounced desire to be a femine is what transsexual has and ever would have and the aim of the law is to state whether it is sufficient for granting them all rights pertaining to female sex. In context of right to marriage this pronounced desire has to somehow fit into the definition of marriage (marriage is void unless the parties are ‘respectively male and female’ (Bellinger para 1) or that definition has to be changed because of certain cases which hardly fall within that definition but nevertheless seem to have direct bearing on the marriage. Clearly, transsexual which articulate her gender to be feminine in the marriage tends to have a wife role which will organically consort with other characteristic of feminity she tends to.
In Re Kevin (validity of marriage of transsexual)  Fam CA 1074 it was stated that there is no ‘formulaic solution’ to determining the sex of an individual for the purpose of the law of marriage and “difference is essentially that we can readily observe or identify the genitals, chromosomes and gonads, but at present we are unable to detect or precisely identify the equally “biological” characteristics of the brain that are present in transsexuals” But to put right to marriage in direct dependance upon [determining] sex of person seems to be a dead end. The array of cases strating from Corbett v Corbett  P 83 and ending with present case testifies that this approach is hardly efficient.
The desicion in Goodwin v UK (2002) 35 EHRR 18 laid ground for re-apprisal of that approach. It reads that the Court found found ‘no justification for barring the transsexual from enjoying the right to marry under any circumstances’. Obviously, there are no such impedements springing from the law itself which would prospectively prevent Marginal transvestites from acquiring right to marriage provided that there be a legislative will of Parlament. That the perplexities of that problem partially and briefly stated earlier do prevent House of Commons from passing the bill also seems clear. At the same time, incentives coming out of European court are expressedly painted in colors of progressive and liberative legislative approach.
Presently, I belive that formula which will satisfy ‘Europeans’ will involve legislation tending to antecede the resolution of academic debates as regards specific domains of meidine and, in fact, contribute to the progressive and enlighted resolution of those debates. In our case, present state of the law includes some deceptive provisions. It clearly states that parties to marriage are ‘respectively male and female’ which seems to be consonant with the desire of Marginal transvestites as they tend to artificially acquire ‘maleness’ or ‘femaleness’. At the same time, law and the court do not seem to bother about priciseness of their rendering of that provision.
So far, as it occures from the great majority of the cases, the court only have approached notions of ‘maleness’ and ‘femaleness’, construed them to signify biological sex and made efforts to elaborate measures of ascertaining that [original] sex. It is now clear that societal perception of gender does not co-incide with legal one. The court insures the degree of preciseness of that legal perception but apparently, the split between society which eyes Marginal trasvestite and sees a girl, Marginal transvestite which lives and strives to be a girl actually ever-approaching to it, and the Court which eyes Marginal transvestite through microscope and employes all kind of hromosomal tests and technical appliances to disclose that individual’s original and abhorrent side is enormous.
Doctors almost at once sided with their patient and developed certain categories (at the beggining ‘Benjamine patient’ and then ‘gender identity disorder’) actually saling transvestites to state as transexuals – taxon compulsory and contigent in itself – which would underscore their unstability at the original gender and destabilizing subjectivity. Another school of medicine tries to buy that category back from the state pointing at the internal incommensurability and incohesiveness of it. It (school) actually speak out that state and society bought the thing which is not what it seems. And it is the time when gender and sex opposition is to reveal fully. As it might be construed from Bellinger case despite her successful effort to approach ‘feminity’ Mrs.
Bellinger did not managed to approach ‘femaleness’ which under the present provisions of the law warrant her a right to marriage. Doctors appealed to progressiveness and humanity of legislator so that the latter might confer ‘femaleness’ upon transexuals even if only to save their subjectivity. Unattainable status of, say, ‘femaleness’ is mainly in charge of legal deadend with marriage rights of marginal transvestites. If sex-related approach was changed for gender-related one (first signifies biological sex, second – gender role) within the provisions of the law it will greatly reduce that paintfull dialectics between transsexuals and doctors and transsexuals and law.
Though, that changes ought to go with recognition of homosexual marriage. Transsexuals will never agree to register as homosexual family but this will reduce the degree to which marriage right depend on gender re-assignment procedure, which is immaterial to marginal trabnssexuals right to marriage. Number of words: 3558. References: Books: Changing Sex: Transsexualism, Technology, and the Idea of Gender by Bernice L. Hausman; Duke University Press, 1995 The Psychology of Sexual Orientation, Behavior, and Identity: A Handbook by Louis Diamant, Richard D. McAnulty; Greenwood Press, 1995 DNA and Destiny: Nature and Nurture in Human Behavior by R. Grant Steen; Plenum Press, 1996 Journal articles:
Transvestism: A Survey of 1032 Cross-Dressers. by Richard F. Docter, Virginia Prince. Journal Title: Archives of Sexual Behavior. Volume: 26. Issue: 6. Publication Year: 1997. Page Number: 589+. Moving gaily forward? Lesbian, gay and transgender human rights in Europe. by Kristen Walker. Melbourne Journal of International Law, June 2001 v2 i1 p122 Paper articles: Law reports. (News) Daily Telegraph (London, England); April 17, 2003 Cases cited: Corbett v Corbett  P 83 Re Kevin (validity of marriage of transsexual)  Fam CA 1074 Goodwin v United Kingdom (2002) 35 EHRR 18 Bellinger v Bellinger 2 FLR 1 Bellinger v Bellinger  UKHL 21