After an adjournment for lunch

PROFESSOR MARTIN ROTH (49)

EXAMINED:-

I am a Doctor of Medicine and a Fellow of the Royal College of Physicians. I hold the Diploma in Psychological Medicine. I am Head of the Department of Psychological Medicine at Newcastle University. I hold a Consultant's appointment with the Royal Infirmary as Consultant Psychiatrist. I was author of Chapter 9 of the book by Dr. Armstrong and Mr. Marshall called "Intersexuality". That is psychiatric aspects of intersexuality.

Q.- That is No. 17 of process.Do you have a book in preparation at the moment?

A.- Yes.

Q.- Is that about intersexuality?

A.- Yes, it deals with intersexuality, it is a joint book with Dr. Ball.

Q.- Are you also the author of a standard text book on clinical psychiatry?

A.- Yes.

Q.- Have you any particular experience in determining and treating intersexual conditions?

A.- I have had experience of the treatment and investigation, scientific enquiries into intersexuality.

Q.- Were you instructed to carry out an examination of Dr. Ewan Forbes-Sempill?

A.- I was.

Q.- Did you carry out this examination on the 6th April, 1967?

A.- That is correct.

Q.- Did you obtain a history from Dr. Forbes-Sempill?

A.- Yes.

Q.- Did you also prior to carrying out that examination have made available to you Reports by Mr. Dewhurst and Dr. Klopper?

A.- Yes.

Q.- And I think since you carried out the examination you have seen a Report by Dr. Armstrong?

A.- Yes, I have.

Q.- That was not available when you carried out your examination?

A.- No, it was not.

Q.- Apart from obtaining a history from Dr. Forbes-Sempill did you carry out any psychological or psychiatric tests?

A.- I conducted a standard psychiatric examination of the mental state, an examination aimed at defining the main personality features of the doctor and also conducted Terman-Miles psychological test, but I requested that this should be repeated at the University of Aberdeen, because we were very short of time when this examination was conducted, and I wished to have this test carried out at a more leisurely pace, and this was in fact later done.

Q.- have you seen the test which was carried out by Cordiner at Aberdeen, seen the results?

A.- I have, yes.

original, p. 295, 296

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Q.- Have you seen a reference also to the two other tests which she carried out, one of which is called the Minnesota Multi-Phasic Personality Inventory, and the other was an object reaction technique test?

A.- Yes, I have.

Q.- And apart from these tests do I gather you adopted some sort of technique in order to elicit generally the mental state of Dr. Forbes-Sempill?

A.- Yes.

Q.- Is that an established technique?

A.- Yes, the standard technique for examination of patients.

Q.- Can we first deal with the history which you elicited from Dr. Forbes-Sempill upon which you partly based your conclusion, and would you tell us what history you got from the patient in regard to the patient's earlier years?

A.- The story I obtained was that from an early age he felt convinced his real sexual identity was different from the sexual identity assigned to him, and that he had throughout his life from childhood on sought to assume the identity of the opposite sex by all means that were available to him, had assumed the dress, habits, activities of someone of the male sex, and this he continued subsequently in his adolescence and in his later life.

Q.- Did you ask him about what clothes he wore at that stage of his life?

A.- Yes, the account was that he chose to wear either clothes which were masculine or clothes which were at any rate ambiguous in their sexual significance.

Q.- Such as the kilt?

A.- Yes.

Q.- Did you ask him about recreational activities which were undertaken in his youth?

A.- He chose the more active, rough pastimes of young boys, an account of him was given of sports, athletics, riding astride and so on.

Q.- Did you observe in the history any change as time went on?

A.- Change in attitude towards his identity?

Q.- Yes?

A.- I think that on the whole there was a tendency to shift to an increasing extent to masculine attitudes, masculine activities and occupations in the course of life. These, were, of course, only accounts I obtained from Dr. Forbes-Sempill.

Q.- Did you obtain an account of any difficulties which he had experienced sexually during his adolescence?

A.- I am not aware of difficulties other than he experienced through his parents disapproval of these tendencies in him, the tendency to discourage any identification with the opposite sex.

Q.- Were you also informed that he re-registered as a male in 1952?

A.- Yes.

Q.- And that since that time he has been living as a male and working on a farm?

A.- Yes, prior to that I understand he ran estates for his brother for a period of some years.

original, p. 297, 298, 299

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BY THE COURT:-

Q.- Did you say for his brother?

A.- For his late brother.

EXAMINATION CONTINUED:-

Q.- In so far as the tests were concerned what validity would you attribute for instance to the Terman and Miles test and other tests which were carried out by Mrs Cordiner?

A.- Validity has a very specific meaning in psychological work and I don't think one could say that any psychological tests aimed at classifying an individual into one or another sex by psychological means alone has a very high degree of validity, as distinct from that it could be regarded as reliable and objective, but its validity is far from perfect.

Q.- Is the result of any test regarded by you as to any extent corroborating the pattern which you have observed from other features such as the history?

A.- The tests do yield results which taken into account with other evidence can be available and I consider the tests in this case provide some corroboration of other lines of evidence and are very important.

Q.- For the purposes of classification would you recognise any distinction between classification for the purposes of sex identity and classification purely for treatment?

A.- Yes, certainly.

Q.- How would that distinction arise to your mind?

A.- Classification is an extremely important activity for the pursuit of studies in any given field, it is the first aim in studying a phenomenon in a precise and scientific way such as the question of sex in the sense of the different types of sexuality, masculine and feminine, and various types of inter-sex, is to achieve a valid and reliable classification or when one is studying the problem of classing individuals into one or the other category unequivocally or into one of the intersexual groups irrespective of any needs to assign the diagnosis for purely therapeutic purposes.

Q.- So you are concerned with both kinds of classification as it were in the course of your experience?

A.- Yes, certainly.

Q.- Can you tell us what if any importance is to be attributed to psychological sex for the purposes of classification of identity?

A.- Many authorities have agreed that psychological criteria alone ought to serve as a criterion, ought to serve as a basis on which subdivision of individuals can be undertaken, and many authorities do for example admit as one class of intersexual personalities who have no identifiable physical anomalies but do deviate very markedly in their behaviour or in their psychological characteristics to a sex which conflicts with the physical sex, so they do exhibit the phenomenon of psychological intersex. If I might just add the underlying assumption is that the psychological forms of intersex probably have some underlying constitutional basis which remains yet to be defined, so many authorities accept psychological intersex, and it is clear therefore that they accept psychological criteria for classifying individuals.

original, p. 299, 300, 301

159 Q.- Is it your view that where you get psychological intersex purely that, that must be caused by some possibly undefinable physical deformity or abnormality?

A.- Yes, I should not be prepared to answer in general for all types of intersexuality, the commonest forms of intersex in which the characteristics of an individual in a psychological sense differ from the observed physical characteristics almost certainly have some constitutional basis, but the probability is that environmental factors contribute. For example, both in transsexualism and homosexuality there is a good deal of evidence that hereditary factors and underlying constitutional factors contribute to causation, but they are not the whole story. This is I think widely accepted.

Q.- May I take it you regard psychological sex as important for the purposes of classification and not purely for purposes of therapeutic treatment?

A.- Yes, I think so, it is one criterion that is of value.

Q.- And is it your view that the orientation of an individual is determined to some extent at least by that individual's physical characteristics?

A.- Yes.

Q.- Taking into account the Reports which you received on the physical characteristics of Dr. Forbes-Sempill, taking into account the history which you received from him and the pattern of behaviour which you elicited by means of this technique which you adopted, what was your conclusion as to the psychological sex of Dr. Forbes-Sempill?

A.- I concluded that the psychological characteristics were predominantly male, and I concluded that the results of psychological and clinical examination were consistent with physical findings which, of course, were also made known to me.

Q.- Is that to say that the orientation which you found was a kind of orientation which you might find in the case of a person who was abnormal to the extent indicated by the Reports which you have received?

A.- Reports of physical examination, no, I think that the results were inconsistent, I would not say one could have got any other result from psychological tests, but I won't elaborate on this. I would be prepared to elaborate if I am asked further questions about this.

Q.- Assuming that psychological orientation was masculine, which I think you have told us, would you be prepared to express a view as to whether that would be the consequences or not of the physical abnormality which was described in the Report?

A.- The kind of life history that I took from Dr. Forbes-Sempill, and I lay particular emphasis on the clinical as opposed to the psychological test findings, because I do think it is if anything rather more important, I would always have some constitutional basis. In the majority of instances of individuals with this kind of inner conviction from early life their outward appearance or the sex assigned to them does an injustice to their inner identity, this kind of condition although generally it has a subtle constitutional basis is not associated on clinical examination with clear findings, but

original, p. 301, 302, 303

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there is a minority of cases where this kind of conviction from early life, and where physical anomalies of the kind we discovered in this case are to be found - I don't know if have made myself clear there - I consider this sort of early conviction which in later life leads to a change in sexual role from one sex to that of the other, this usually is a constitutional basis. It is very difficult to explain it in any other way, because this is life long and whilst physical findings are not usually present, in a minority of cases some physical findings are, either of gonad or chromosome, those can be established, and I consider Dr. Forbes-Sempill probably belongs to this minority of individuals.

Q.- And would you attribute the orientation accordingly to the abnormality which was found?

A.- I would attribute it in part, certainly, to the abnormality which was found.

Q.- Going a little further into the kind of abnormality you are speaking about, are you aware that male gonadal tissue has been discovered?

A.- Yes.

Q.- Would that be more likely to lead in your view to the production of androgens?

A.- Yes, most probably.

Q.- And would the production of androgens be themselves likely to have any effect on the orientation of the individual?

A.- Certainly it would make some contribution to the psychological orientation.

Q.- I think you referred to the fact he had changed from one sex to the other. Do you regard a change of that nature, the breaking of the barrier, as it were, as of any importance?

A.- It is important in this sense, that the individuals who do make this change, who carry out a life long campaign to establish such a change, and in a proportion of cases succeed in achieving it, have certain features in common, these are recognisable, they have been studied by psychologists and psychiatrists, and I think the general view is that some constitutional basis must exist for the behaviour that these people manifest in the course of their life history.

Q.- To what extent can your finding be said to be objective?

A.- If you are referring to the psychological test it is simply objective in that the interpretation is wholly free from any influence by the person who administers the test.

Q.- Going a bit further, the pattern of behaviour which you elicited and the history which you obtained from Dr. Forbes-Sempill, taking these matters into consideration would you describe your findings as being an objective finding?

A.- In the case of clinical history the findings cannot be wholly objective, you are dependant upon your source of evidence, and naturally I am obtaining my history from a person who is interested, and so I don't think you can regard any clinical examination as wholly objective procedure by any means. On the other hand, the training of a clinical psychiatrist is one which ought in any event to compensate to some extent for these limitations in the source of the evidence, in other words, there are built in techniques for evaluating the reliability of the statement, but the brief answer to your

original, p. 303, 304, 305

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question is that no clinical examination can be regarded as wholly objective procedure.

Q.- But objective to some extent?

A.- It has some measure of objectivity, and perhaps the best way to explain this is the results of a clinical examination by two trained observers would be closely similar - I am not general about this, but I think that two trained clinical observers would arrive at the same or very similar findings.

Q.- Some comparison has been sought in the present case of what one might describe as the active partner in a Lesbian relationship?

A.- Yes.

Q.- Can you give us your findings as to whether the psychological orientation of Dr. Forbes-Sempill is to be compared with that of the active partner in a Lesbian relationship?

A.- The majority of those who are active don't seek to change their sexual identity, they live in the sexual identity that has been assigned to them, and there is no question of seeking to achieve a changed sexual identity. Whether you are speaking of female or male homosexuals the great majority do not wish to achieve a change of identity, so I don't think our findings here are at all consistent with the findings one would anticipate in the active partner of a Lesbian relationship.

BY THE COURT:-

Q.- What about clothing?

A.- The active, dominant partner in a Lesbian relationship may adopt a more or less masculine mode of dress, this varies a great deal, but this is very different from living the life of a male in a much wider sense.

EXAMINATION CONTINUED:-

Q.- Apart from that aspect can you say whether the masculine responses in the present case were such as you would be likely to find with the active partner in a Lesbian relationship?

A.- I don't think the psychological test could be said to differentiate between these two, I think you possibly could get this kind of psychological performance from some Lesbian individuals who adopted very strongly a masculine attitude, I can't exclude the possibility, but I don't think we would get the same life history.

Q.- Would you get the same pattern of behaviour such as was elicited in the course of your examination?

A.- No, I don't think if it was merely a question of a person being known to be an active Lesbian, I don't think so.

BY THE COURT:-

Q.- And you are assuming, of course, that the person in question is physiologically a normal female?

A.- Yes, it was an active Lesbian, the majority of such individuals would I think physiologically by present techniques indistinguishable from ordinary females, as to whether some much more subtle differences underlies their difference in behaviour, this is again a matter of controversy, very little scientific information is available about this original, p. 305, 306, 307

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EXAMINATION CONTINUED:-

Q.- I would like you to look at some photographs, look please at 8, 9 and 10 of Process. I think you may take it that those are photographs of Dr. Forbes-Sempill at ages ranging between the age of 7 and the age of 17?

A.- Yes.

Q.- Would you tell us whether these photographs are in accordance with the history which you elicited from Dr. Forbes-Sempill?

A.- Yes, they are.

Q.- And are they the kind of photographs you would anticipate when considering a person whose behaviour pattern was such as had been elicited by your examination?

A.- Yes, I would regard these as consistent with the views I had reached from clinical examination.

CROSS-EXAMINATION:-

Q.- These photographs simply confirm to some extent some of the things which Dr. Forbes- Sempill told you, - there are three photographs in which she is wearing male attire?

A.- Yes.

Q.- One male attire is a form of German or Austrian male attire, is it not?

A.- Yes, I suppose they cannot be expected to tell one any more, they are three photographs taken on three occasions, there may be other photographs with which I am unfamiliar, But if I am asked to comment on these three photographs they are in accord with what I have learned as a result of my examination.

Q.- They coincide with one of the things you were told that on some occasions Dr. Forbes-Sempill as he now is dressed like a boy?

A.- Yes.

Q.- That and no more?

A.- Yes.

Q.- They are not bits of evidence which you would pay very much regard to, are they?

A.- By themselves, no.

Q.- You got a history from Dr. Forbes-Sempill of somebody who had been registered as a girl - is that right?

A.- Yes.

Q.- And lived as a girl or at any rate so far as outward appearances were concerned and the world was concerned until the age of 40?

A.- Yes.

Q.- And in the course of that time had qualified as a doctor?

A.- Yes.

Q.- And had then applied to have the registration of birth altered and the name altered. You got that information?

A.- Yes.

Q.- So far as that goes have you ever come across a case which is the same as that with the same history?

A.- Yes.

Q.- Exactly the same?

A.- Closely similar, I have come across this, and of course there have been cases recorded in Scandinavian literature original, p. 307, 308, 309

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particularly.

Q.- Where somebody has been brought up as a girl, lived as a girl for 40 years and has qualified as a doctor?

A.- The qualification as a doctor, no, I have not encountered anyone who has qualified as a doctor thereafter, but Dr. Armstrong has encountered such a case. I know of this person from him, I have not personally in my experience.

Q.- We are going to have the pleasure of hearing Dr. Armstrong?

A.- Yes.

Q.- So far as the history goes with that particular feature in it, it is unique in your experience?

A.- Because of the medical training?

Q.- Yes, in the course of time, of the 40 years, when the person concerned was female so far as the world was concerned?

A.- Yes, I would not attach a great deal of importance to the fact that medical training had been received.

Q.- What I am wondering you see is whether it is important at all as to what if anything after a period of 40 years makes a person take such a dramatic step as to, to put the matter simply, change their sex as they face the world?

A.- The history is a common one in both sexes of life long conviction that the assigned sex is a false one, and it is common in the clinical experience of all those who have worked in the field to encounter subjects who although they suffer a great deal do not come to the point of taking action of this nature until adult life, late adult life.

Q.- Is it normal with people of this sort to have a conviction that the wrong sex has been assigned to them, is it common for them to take action in adult life to break the barrier, I think you used the term?

A.- I don't think I used that term.

BY THE COURT:-

Q.- I think you used the expression changed their sexual role?

A.- Yes, I did not use break the barrier. I have to explain that all forms of anomaly of this nature are far more rare in women than in men, all forms of sexual deviation and all forms of intersexuality are far commoner in the male, because one does not encounter in many cases women, and I think to be asked whether this is common in your experience - any one person would not see any more than a very small number.

CROSS-EXAMINATION CONTINUED:-

Q.- You mean this is more common in people who are unquestionably of the male sex from the word go?

A.- Yes, if we take trans-sexuality and homosexuality and the field of intersexuality, all these individuals present with their outward characteristics those of males, so the opposite is very much more uncommon in my experience.

Q.- And this would be one who does not present the outward characteristics of a male?

A.- No, I am merely saying the situation in which some ambiguity exists is commoner where the person's main sexual characteristics are outwardly male.

Q.- Were you able to form any view as to whether Dr. Forbes- original, p. 309, 310, 311

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Sempill's main characteristics are outwardly male or not?

A.- Well, other people....

Q.- You yourself?

A.- The main outward sexual characteristics?

Q.- Yes?

A.- No, I would not have said that the outward sexual characteristics on inspection are predominantly male, but I would not be guided in my judgement about that wholly by outward inspection.

Q.- No, but the class into which you put Dr. Forbes-Sempill is the people whom you are now talking about, that is to say in the course of adult life seek to live in a different sex, Dr. Forbes-Sempill is in the minority class as opposed to the majority class?

A.- Yes.

Q.- Is it important at all in connection with people who do seek to change their sex for purposes of living to discover as a psychiatrist what urges them to make the change and particularly if you can what urged them to make the change when they did make the change?

A.- You mean to discover the psychological origin of the disability?

Q.- Yes, the psychological reasons for doing it if any?

A.- One always seeks to define the psychological factors that may be related to the early conviction and the later change, yes.

Q.- Did you seek to find out from Dr. Forbes-Sempill why the change had been made when it was?

A.- No, I did not discover why he made it at that particular time.

Q.- May it not have been important?

A.- I would not attach a great deal of importance to this, because over and over again in this kind of situation their appeal either to a medical person or to some other authority is decided by unimportant contingencies.

Q.- May they not be decided by certain forces which are important to them which may not occur in another person's life?

A.- Once one is satisfied that the urge and the inner conviction dating from early life has been a genuine one I would attach very little importance thereafter to any environmental factors in deciding the change of role. I don't think this would play more than an unimportant and subsidiary role in making the change. Once I have been satisfied that the inner conviction was a genuine one and with all the qualifications one could make in relation to the clinical examination, with all that I had satisfied myself this was a case in which the injustice to inner identity was truly genuine, and to some extent constitutional.

Q.- It had however in this case been suffered for 40 years?

A.- Yes, and sometimes it is suffered during the whole life.

Q.- Is it the rule or the exception that after having suffered one sex albeit rather grudgingly for a period of 40 years a change is made?

A.- Well, of course, we are including in this discussion all the physical findings. We are speaking as if the only findings we had at our disposal were the psychological ones, but I original, p. 311, 312, 313, 314

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cannot separate those from the physical, I should have thought in the sense of an identity which adds and adjusts to the personality it is in a different situation in the presence of some clear gonadal or other physical abnormality than it is in a person in whom one has only the inner conviction to guide one. I don't think one can generalise from this large class of people in whom the inner conviction exists without physical findings to the other more general group of cases in which the inner conviction is associated with quite clear cut physical problems.

Q.- Into which class are you putting Dr. Forbes-Sempill, the second or the first?

A.- I would put him in the first.

Q.- That is to say a person who has had an inner conviction that he had been allocated the wrong sex?

A.- Yes, and in whom this inner conviction is associated with some unequivocal physical characteristics.

Q.- Such as here?

A.- In the presence of a male gonad.

Q.- Anything else?

A.- I think the presence of very marked virilisation which in my judgement would be exceedingly difficult to explain in terms of endocrine treatment, the presence of parts of this virilisation, of the appearance of the external genitalia.

Q.- Did you carry out any physical examination?

A.- I did, this would be part of the examination conducted by the psychiatrist.

Q.- If the present circumstances confirm assigning Dr. Forbes-Sempill to this class of person who has this inner conviction plus the features to which you have referred in your experience is it in the majority or the minority of cases that such a person suffers the sex to which they have been assigned for as long as 40 years before making a change?

A.- I must confess this case is unique in my experience, these cases are rare, and the cases in which this kind of belief was associated with a physical abnormality, this is unique in my experience, but what is certainly not unique in my experience is that someone has a life long inner conviction and does not begin the active campaign which may begin in a re-registration under the age of 50 or 60 and I have experience of approaches by members of the male or present assigned male or female sex who seek my help in achieving a change of identity at an advanced age, so that is not rare.

Q.- I think you told me you had to take into account both the feeling the wrong sex had been assigned and the physical features?

A.- Take it into account in what?

Q.- In assessing the reason for a change being made, the likelihood of a change being made?

A.- No, I don't think I said that, I am sorry.

Q.- Let us leave that aside, because the Notes will show precisely what you did say about that, but do I understand you to say now that having regard to the physical features which you found to exist in Dr. Forbes-Sempill you are.....?

A.- I had no reason to believe from outward physical examination there was a male gonad, but I was subsequently given original, p. 314, 315, 316

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authoritative information about this.

Q.- Pausing there for a moment, did you carry out an investigation to see whether you could palpate that gonad?

A.- It was not possible because a biopsy had recently been undertaken and the part was covered in bandages.

Q.- Having regard to the physical features which you found and about which you were informed by reason of other Reports, and the determination that you were told that Dr. Forbes-Sempill had always had that the wrong sex had been assigned?

A.- Yes.

Q.- Having regard to that, and that the change was effected at 40, do I understand you to say that this case is unique in your experience?

A.- This case is unique in the face of an early conviction with some gonadal abnormality.

Q.- An early and continuing conviction?

A.- An early and continuing conviction plus the physical anomalies, this is unique in someone who has been assigned as a female, it is not unique in the opposite sex.

Q.- Let us confine ourselves to this case, somebody who has been assigned as a female, the case us unique in your experience?

A.- With the physical abnormalities.

Q.- Was it not rather important or interesting at least to discover why in this unique case a change was made when it was?

A.- I am afraid I did not make inquiries about this, and I did not consider this to be very important at the time when I examined Dr. Forbes-Sempill.

Q.- Has your experience been that people of similar physical attributes of Dr. Forbes-Sempill and a similar inner conviction that the wrong sex has been assigned have in fact changed sex if they have changed at all at an earlier age than 40?

A.- I think I have said this before, but I shall have to repeat it, when I examined Dr Forbes-Sempill I did not of course have knowledge of the gonad, the only anomalous feature was the abnormal degree of virilisation, which surprised me, but other than this I had no knowledge of clear evidence of masculinity in the sense of either a gonad or a chromosomal change, in this case it would be a gonad, so I classified at that time Dr. Forbes-Sempill into this wider group of individuals in whom there is an early conviction with physical anomalies that are either absent or of a very subtle nature such as occur, I think, in virilisation, and indeed I wished merely to satisfy myself by seeking the advice of an expert colleague about the extent of this virilisation and what explanation could be provided. It seemed to me to be excessive, at that time I did not appreciate this was unique in the sense that I have described now, it conformed to the pattern which had been shown by many of my psychological intersex patients which as I say frequently will not for a variety of reasons seek a change in identity until late middle life or even old age. Had I known at that time that in fact there were not only gonadal changes and certain other abnormalities which I have learned recently from Mr. Dewhurst I might well have wished to address questions to Dr. Forbes-Sempill as to why having been so

original, p. 316, 317, 318

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convinced with the physical evidence that I think he must have had, he was aware himself he had a gonad....

Q.- Was he?

A.- He was, well presumably, because I understand he himself conducted a biopsy at one time.

Q.- Did you ask him when he became aware he had a gonad?

A.- He told me he had been aware of a lump in the groin for a considerable time.

Q.- Did he say for how long he had been aware of such a lump in his groin?

A.- I can't remember. I did consider I am afraid at that time it was likely we would be finding something as clear and specific as has been discovered.

Q.- Did Dr. Forbes-Sempill tell you he had a lump in his groin?

A.- He told me he had a lump in the region of the groin, yes.

Q.- Did you ask him what it was or what he understood it was?

A.- I don't think it was thought to be of much importance.

Q.- He was a doctor, he could have expressed some views?

A.- He, although he has a firm conviction that he belongs to some sex other than the assigned one, would not be in a position to give a useful guess as to what this might be, it could be the result of many, many things.

Q.- You examined Dr. Forbes-Sempill on one occasion on the 6th April?

A.- Yes.

Q.- Had Dr. Sempill been examined at that time by Mr. Armstrong?

A.- Yes, he had been on one occasion. I don't think at that time a detailed gynaecological examination had been carried out. I am speaking from memory but I think I am correct in saying that.

Q.- Did you not inquire what the purpose of the operation was which had been carried out?

A.- I had no reliable knowledge as to whether or not this was a male gonad at this time.

Q.- If it had been a male gonad it would have made you put this person into the smaller class rather than the larger class to which you assigned the doctor. Is that not right?

A.- Yes.

Q.- What I am wondering is in the absence of some compelling reason for changing sex and appearing to the world as a man as opposed to being a woman could persons such as Dr. Forbes-Sempill have continued to live as a woman?

A.- I think it is possible, one has to concede, possible to conceive of his continuing to live as a woman with a good deal of mental distress which such subjects always have, and this is difficult to estimate, and certainly in retrospect very difficult to estimate. One can always say it is conceivable, one does not know the precise circumstances, the mental state of the person at the time.

Q.- The mental distress which had apparently been suffered for 40 years?

A.- The effects are I think one could say cumulative to some extent.

Q.- Did you understand from the history that was given to you original, p. 318, 319, 320

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by Dr. Forbes-Sempill that in addition to a small operation which had been carried out at an early age in childhood that doctors in Europe had been consulted?

A.- Yes.

Q.- Did you ask whether any advice had been given to the doctor over the period of 40 years that a change of sex would be desirable from her point of view?

A.- The opinions given by various Continental doctors were not accessible, and Dr. Forbes-Sempill was unable to tell me what opinions had been expressed. I understood that Dr Cawadius had expressed a view he ought to take a small quantity of testosterone regularly.

BY THE COURT:-

Q.- We may as well know what it is?

A.- It is a male hormone, extract of male hormone which you can take in small doses. I have that noted down, but it is of no material importance I think just now.

CROSS-EXAMINATION CONTINUED:-

Q.- Did you ask whether at any time Dr. Forbes-Sempill had been advised in view of the inner conviction you understood which he had to change her sex and start living as a male?

A.- I did not ask these things, our knowledge of these conditions does not go back very far, and I don't think that four decades ago let us say any useful opinion on these matters would have been very likely by a Continental expert.

Q.- Did you ascertain when these consultations had taken place?

A.- I understood that they had taken place before the age of 10.

Q.- All of them?

A.- I speak from recollection. Certainly my impression speaking from memory is that all the consultations were before the age of 15.

Q.- Do you remember asking specifically when they had taken place?

A.- Yes, most certainly, and I have it in my Records, and they are in the Depositions.

BY THE COURT:-

Q.- When did you understand this advice had been given about taking testosterone?

A.- I understand this had been - could I just consult and make certain about this - this had been in adult life, but the precise age I cannot recollect - 1951.

Q.- That was information from the Second Petitioner?

A.- Yes.

CROSS-EXAMINATION CONTINUED:-

Q.- In 1951?

A.- And I understood also that at the time Dr. Cawadius, the question of change of sex, change of registration had been discussed in 1951. This is wholly based on the Second Petitioner's information, that Dr. Cawadius had expressed the view he would have to seek some information about Scottish procedure,

original, p. 320, 321, 322

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but my information was that the question of re-registration had been raised by the Second Petitioner. I could not be quite certain about that.

Q.- This was in 1951?

A.- Yes.

Q.- Before registration in fact took place?

A.- Yes, but in fact Dr. Cawadius was in fact consulted then.

Q.- At that time the Second Petitioner would be about 39?

A.- Yes.

Q.- In the decade before that assuming doctors had been consulted by the Second Petitioner would you have expected them then to have advised the Second Petitioner to change sex or to continue to bear up and live as woman?

A.- To change registration.

Q.- Never mind that so much, but to start life as a man?

A.- Well, I think there were very, very few people who had knowledge of this kind of phenomenon, and I just could not say what the opinion would have been, you see systematic enquiry and literature about the whole subject of intersex including trans-sexualism is relatively recent, and a great deal of what is written now has been written in the last 15 or 20 years.

Q.- So prior to the last 15 or 20 years people were accepted medically in the sex to which they had been assigned at birth?

A.- Of course, a great many just took the law into their own hands and changed their identity, lived as men or women as the case may be without getting medical encouragement to do this or legal re-registration, but I think in recent years medical people have been more concerned with these cases, and in very selected individuals they have been prepared to help the person to achieve re-registration, but this practice is a fairly recent innovation.

Q.- But arising out of that I think you indicated in your examination-in-chief that nowadays, and it may have been for some 15 years or so, there was not a clear classification into one or the other of the two sexes but there was also really a third classification which you described as intersex. Is that your view?

A.- Yes, I think the vast majority of individuals can be classified unequivocally to one or the other.

Q.- Yes, the vast majority?

A.- Yes, but there is a small but not insignificant minority of individuals in whom the answer one can give to the question is he male or female depends on what criteria you are going to adopt, and there are a number of those criteria.

Q.- And you might take some for some purposes and some for another, I suppose?

A.- Yes, I think this would be so.

Q.- For some purposes it might be more desirable and better from a medical point of view to assign the female sex to one person, and for another purpose the male sex?

A.- I don't think one would assign two identities to the same person, but you are quite right in saying to two people classified broadly into the same group of intersex one might in some instances according to circumstances consider a male role was the correct one, and in the other consider a female role was the most desirable both from the individual’s original, p. 322, 323, 324

170

point of view and society's point of view.

Q.- This is with people who have the characteristics of both sexes such as the hermaphrodite?

A.- Not only those.

Q.- Would you include such people?

A.- yes.

Q.- And you were saying not only those?

A.- There are other individuals in which one would make that decision and vary it to some extent according to circumstances.

Q.- I think the result of your test so far as you carried out psychological tests was that you came to the conclusion that the Second Petitioner is now orientated as a male?

A.- You are referring specifically to the psychological test?

Q.- Referring specifically to the psychological tests?

A.- Yes, I should point out in all psychological tests administered to ascertain whether the person is psychologically male or female there is a substantial overlap in performance between the two sexes, and I don't think one would rely on the result of a psychological test alone to guide one.

Q.- I can quite accept that, what I was going to say was that you carried out those psychological tests and reached your conclusion some 15 years after Dr. Forbes-Sempill has assumed life as a man?

A.- Yes.

Q.- You see what I mean?

A.- Yes.

Q.- And lived as far as we know perfectly happily as a man and in fact has got married?

A.- Yes.

Q.- Would this experience have some bearing upon the mental orientation now displayed in the tests which you subjected the Second Petitioner to?

A.- I think only to a very small extent, I think only to a small extent, because the knowledge and the attitudes which are invested by these tests are to a large extent acquired earlier in life, and they are not easy to acquire or simulate.

Q.- I am not suggesting they could be simulated, I am suggesting if one had, had the experience of living in the male sex for an appreciable period of time would it not be quite a considerable factor in determining whether the male orientated answers were given as opposed to female orientated answers to the questions asked?

A.- Yes, if you are asking specifically whether the experience of life since the age of 40 would do this I would say it is unlikely, but I cannot exclude it, unlikely but of course a life long attitude that is orientated towards the masculine, going right back into childhood, even if influence by environmental and family factors to some extent, may well lead to a performance which pleases the individual in the masculine distribution. I would be rather more doubtful as to whether this could happen wholly as a result of experience since the age of 40, but I cannot assign a figure, you see to the contribution which would be made by past experience, I would judge this to be a small one.

original, p. 324, 325, 326

171

BY THE COURT:-

Q.- What do you mean by environmental factors in the answers which you have just given, what does it include?

A.- I mean the attitude of the parents to a child, the attitude to its sexual identity and the moulding of the person in the early years by the parental attitude.

CROSS-EXAMINATION CONTINUED:-

Q.- can the psychological orientation change during the course of a person's life, particularly the life of a person who is a hermaphrodite?

A.- No, I don't think so, not in adult life, I don't think this can change. It could change in the formative years, before the age of 10 let us say, yes, before the age of 10, a child which has been brought up as of one sex then has various operative procedures.....

BY THE COURT:-

Q.- Did you say operative procedures?

A.- Yes, which would bring him physically more in accord with the sex which is not the assigned one, this could lead to a change of orientation, but I am referring there to the sense of inner conviction, the individual has one or other kind of personality and I don't think this can change in adult life.

CROSS-EXAMINATION CONTINUED:-

Q.- What relevance can be placed do you think upon the history as given by a person of the age of 55 as to what their inner conviction in a matter of this sort has been since the age of childhood?

A.- In the usual situation, of course, one secures evidence from independent sources, and in this instance, of course, I myself have not access to independent evidence, I should have greatly preferred to have this, but in the course of studying patients in large numbers with difficulties in their sexual orientation one defines clinical features of this kind of phenomenon, and one seeks for a certain consistency in the evidence that one obtains, and I satisfied myself that in this case the evidence did possess this kind of internal consistency which made me feel that very likely I was receiving in most of the essential features a reliable account. I must confess that I should strongly prefer in such cases to have my findings confirmed by the testimony of individuals who have known the individual from childhood. In the ordinary clinical situation this is what I would do.

Q.- You had no such evidence?

A.- Personally I did not interview anybody who had known the Second Petitioner.

Q.- So far as you are concerned you went on the Second Petitioner's own word?

A.- And on the checks that one would apply of the kind I described, checks for the internal consistency of the account, and one of course in such a situation puts the description given against the description which has been given by many other individuals, and there are a number of checks.

Q.- Even for seeing into the state of mind of a person say original, p. 326, 327, 328

172

aged 15?

A,- One is taking statements about the states of mind and comparing them with other statements about states of mind, one is always relying upon statements and retrospective evidence, of course, as not as reliable as perspective evidence in a clinical or any other setting, but it is the only evidence we can take.

Q.- I am aware of your difficulties, but you were presented with retrospective evidence as to a state of mind from the Second Petitioner only?

A.- Yes, there are other, of course, depositions which I was shown by the Second Petitioner's legal advisers.

Q.- They were not people you have seen or questioned?

A.- No, they are not people I have seen.

Q.- As a general proposition would you agree with me that for somebody who is in the position of the Second Petitioner it is easy to imagine that you had the same inner convictions at the age of 15 as you have now if you hold them now very strongly?

A.- Yes, this is so.

Q.- This is a factor which has got to be taken into account?

A.- It must be taken into account, I quite agree, this is so, one tries to take it into account.

Q.- And the extent to which you succeed or not....?

A.- One cannot be very precise about this.

Q.- No, exactly so. Did you have before you when you were considering the question we have just been discussing any information as to the Second Petitioner being delicate as a small child?

A.- No, I had no information about that.

Q.- Did you have any information as to her going to parties and dancing as a girl and so on and being presented at Court as a girl in 1929 and 1930?

A.- No.

Q.- Had you any information to the effect that she had menstruated regularly?

A.- I understand that menstruation had not occurred.

Q.- You had no contrary information?

A.- I had no contrary information, no.

BY THE COURT:-

Q.- When you say you understood menstruation had not occurred what was the source of your information?

A.- I had only the Second Petitioner's comments.

Q.- This was part of the history?

A.- Part of the history, but I have not relied on this, of course, the menstrual history, I don't regard this as a reliable piece of information, not necessarily reliable, I did not assume one could rely on it.

CROSS-EXAMINATION CONTINUED:-

Q.- Did you have any information to the effect that the Second Petitioner had been a member of a dancing group called the Dancers of Don?

A.- No.

Q.- On the question of this belief that she was female in this instance from what you have been told would you have expected original, p. 328, 329 330

173

Dr. Forbes-Sempill to have danced the male or female role in this group of Highland Dancers?

A.- I think in the early years of such an individual some sort of compromise as between the inner conviction and the assigned sex is usual, otherwise, of course, life becomes quite intolerable, and it would be characteristic of such people to have had some activities, which would be appropriate to the sex assigned.

RE-EXAMINED:-

Q.- Had you known these things would your opinion as to the orientation of the Second Petitioner have been affected to any great extent?

A.- No.

Q.- Would your belief that the Second Petitioner's conviction about his sex had existed since an early age have been altered to any degree?

A.- Not substantially.

Q.- Am I right in thinking that if the Second Petitioner has this conviction now your evidence is to the effect that it is unlikely that he did not have that conviction at the age of 15?

A.- It is unlikely, I think.

Q.- Did I understand you to say that the Second Petitioner is you think a trans-sexualist in the minority class?

A.- Yes.

Q.- Is that in respect he is one of a class which was assigned female but wished to change to a male registration?

A.- A minority class in the sense that he had not only this desire to change from the assigned sex from an early age but he had physical abnormalities.

Q.- I understood you to say that he is unique in respect that he had this conviction that he was male and in addition an intersexual condition?

A.- No. I did not say he was unique in that respect, he was unique in respect of the other features which were added to that group of characteristics by your colleague.

Q.- Such as his graduation in medicine?

A.- Yes, I don't think he is unique in having trans-sexual tendencies with a physical abnormality.

Q.- But it is more usual for trans-sexualists to be assigned to the male category and wish to change to female than vice versa?

A.- Yes, that is much more common, I think.

Q.- Granted the intersexual physical condition and granted the continuing conviction that he had been assigned the wrong sex from an early age would you attribute any significance to the time at which re-registration actually took place?

A.- I don't think it affects my judgement about this case very much.

Q.- If re-registration had not taken place what advice would you give the Second Petitioner as to seeking re-registration now?

A.- If I knew all the facts that are available to us now including the facts about his gonadal sex I would advise him to seek re-registration now, and I would help him to achieve original, p. 330, 331, 332

174

it.

Q.- What is the purpose of taking testosterone?

A.- The purpose is to produce some of the physical secondary sexual characteristics that are associated with the male sex.

Q.- Such as descent of the male gonads?

A.- Such small doses as Dr. Forbes-Sempill was taking would not achieve that, but they might produce some change in the pitch of the voice, some change in the growth of hair, and so on, but in the doses he describes the effect in that direction would not be insignificant. Much larger doses would produce considerable virilisation, but if the dosage described to me is accurate one would not expect the degree of virilisation that you observe here.

Q.- I am wondering why this advice by Professor Cawadius was given at the time it was given?

A.- I know why the advise would be given, if a physician decides that an individual ought to be encouraged to live in some other role, other sexual role than that to which he has been assigned he will frequently help in a variety of ways to alter the physical appearance so as to enable the individual to pass for a sex opposite to the assigned one either as part of the process of re-registration and change or part of a programme of treatment because such people frequently feel better if minor physical changes of this nature occur.

BY THE COURT:-

Q.- I am afraid I am going to have to ask you to define one or two terms you have used in the course of your evidence so that I may understand them. The first of those is intersex. What did you mean by that word when you used it in the course of your evidence?

A.- I mean some sexual identity, a sex which is not unequivocally assignable to the male or the female category.

Q.- I take it intersexuality bears the same significance?

A.- Yes.

Q.- Why do you use the different phrases, two different words, I should say?

A.- They do bear the same significance.

Q.- When you speak of intersexuality what is the meaning you attach to it?

A.- I think intersexuality has perhaps been more often used in a sense wide enough to include such phenomena as trans-sexualism and homosexuality whereas intersex has been more commonly confined to those forms of anomaly in which unequivocable physical characteristics have been present which makes sexuality ambiguous.

Q.- Where unequivocal?

A.- Unequivocal physical changes, by that I mean such a thing as a male gonad in a physical settings which is in many respects feminine in other characteristics, and so on.

Q.- So intersexuality may have a wider connotation than intersex.

A.- Yes, it has not been very consistently used, I think I ought really to translate my remarks and confine myself to the use of the term intersexuality which is what I prefer to use throughout my evidence.

original, p. 332, 333, 334, 335

175 Q.- Am I to take it that you were using the word in a wider sense?

A.- Yes.

Q.- What did you mean when you used the word trans-sexuality?

A.- By trans-sexuality I referred to the phenomenon which has the following characteristics, the individual of either sex, more commonly physically male in most characteristics, but in a minority of instances physically female, has a very strong inner conviction at a very early stage in life that the sexual role to which he is assigned is false and seeks from an early age to achieve a change in sexual identity, this is the phenomenon of trans-sexualism, and more commonly it is an individual assigned to a male sexual role who are seeking to change to a feminine one, but the opposite is by no means a very rare phenomenon.

Q.- Does trans-sexuality as used by you include cases in which the gonadal sex is clear, that is that both organs are of the one sex either male or female as the case may be.

A.- Yes, the majority of cases of trans-sexuality are in fact in all recognisable ways clearly assignable to the masculine or the feminine sex in the majority of instances.

Q.- Do you include a true hermaphrodite in that class or category? I want to know what I am to understand by your use of the phrase?

A.- The difficulty here is that classifications ideally should be based on a specific principle and in this difficult field it is not possible to do that, trans-sexuality describes psychological features alone because we do not know what physical characteristics if any underlie the phenomenon, so if we proceed on this basis and include everyone who has been assigned to one sex but tries throughout his life to change it to another we leave a large number of individuals who will in the majority of cases have no clear discrepancy between the assigned sex and their physical sex, but if one investigates in detail there is a small minority of such people who would prove to have some physical anomaly which corresponds to their inner conviction. Some people would regard this, the physical characteristics, as the basis of classification, and I don't think there is any conflict between my saying there is a trans-sexual phenomenon here and hermaphroditism in a physical sense. I am sorry if this is not terribly clear. In other words, a very small minority of trans-sexualists prove on detailed examination to have physical anomalies and if somebody says thereby they have to be removed from the main class of trans-sexual cases I would not quarrel with that.

Q.- Do I understand from what you have said in answer to the questions by me that according to your understanding intersex has a limited annotation?

A.- Yes.

Q.- Where used as a medical term?

A.- Yes, I would regard it as having a more limited annotation.

Q.- And that is what?

A.- It would refer only to the cases in which some unequivocable physical discrepancy exists between some of the characteristics and other of the characteristics in a physical original, p. 335

176

sense, that is that the physical appearance might be feminine and the chromosomal one might be not unequivocally feminine, or the same for gonadal discrepancies from physical appearance.

Q.- And the true hermaphrodite would of course fall into that category?

A.- Yes.

Q.- Together with other conditions?

A.- Yes.

Q.- Finally, could you just for completeness define what you meant in your evidence when you used the word homosexuality?

A.- By homosexuality I mean an individual of either sex who seeks a partner in sexual relationships of the same sex.

Q.- That is where there is no doubt physiologically of the sex to which that person belongs?

A.- Yes, I mean in physical intercourse seeks a partner of the same sex.

original, p. 335, 336, 337,

177

DR. CHARLES NATHANIEL ARMSTRONG (70)

EXAMINED:-

My qualifications are M.D., F.R.C.P., D.Ph. I am on the staff of Newcastle University. I am Director of Post Graduate Medical Education. I am Consultant Physician to the Royal Victoria Infirmary, Newcastle.

Q.- Have you made a special study of intersexuality in man?

A.- Yes.

Q.- And as a result of your studies have you edited a book which is No. 17 of Process, and did you contribute the article Chapter 8 on intersexuality in man?

A.- Yes.

Q.- Were you asked to examine Dr. Forbes-Sempill the Second Petitioner on the 6th April, 1967?

A.- Yes.

Q.- Did you carry out a physical examination?

A.- Yes.

Q.- And did you obtain from the Second Petitioner a history?

A.- Yes.

Q.- I think you have received information as to the results of certain biopsies carried out on Dr. Forbes-Sempill?

A.- Yes.

Q.- You received those results after your examination on the 6th April?

A.- Yes, I received those about two weeks later.

Q.- I want you to assume for the moment please that the results of the biopsies demonstrate that testicular tissue has been found in the Second Petitioner. I would like you to make that assumption for the moment?

A.- Yes.

Q.- Did you first of all apply your mind to the physical attributes of the Second Petitioner?

A.- Yes.

Q.- I don't want to go through theses in detail because we have heard a lot of evidence about it already, but I wonder if you can answer this question, were you in a position to form any assessment as to the normality or otherwise of the genitalia of the Second Petitioner so far as a female was concerned?

A.- He was not a normal female.

Q.- I want you to take into account what you found yourself on your clinical examination, take into account the fact that gonadal tissue has been found, testicular tissue, I am sorry, has been found, in the left groin, in that situation if you were asked to consider whether these characteristics were predominantly male or predominantly female what would be your answer?

A.- I would regard him as predominantly male because of the particularly enlarged clitoris which would not be normal for a female, the hair distribution and sort of general build which is difficult to define.

Q.- Am I right in thinking that the testis produces androgens?

A.- Yes.

Q.- Does it normally produce them in largish quantities?

original, p.337, 338, 339

178

A.- Both in foetal life and after birth.

Q.- Assuming that a testis in some form is present in the Second Petitioner is it your opinion that the testis is having any effect on the body of the Second Petitioner through the production of androgens?

A.- Yes, it would account for his general make-up, enlarged clitoris, hair distribution and general masculine make-up.

Q.- In your view would you expect that this testis still producing androgens to some extent at the present time?

A.- Oh yes.

Q.- In expressing that view are you influenced solely by the clinical examination of the Second Petitioner or do you take into account as well the pathological Report of Dr. Stalker which I think you have seen?

A.- Yes, by pathological do you mean that congenital adrenal hyperplasia was raised at some time?

Q.- Look at No. 12 of Process, I think you have seen this?

A.- yes.

Q.- What I wonder is in expressing the opinion that the testis is still generating, producing androgens, do I understand that you base that opinion solely on what you saw on your clinical examination, or do the contents of No. 12 of Process play a part in your opinion?

A.- The clinical examination would make one suspect this, and this (No. 12 of Process) of course confirms it.

Q.- So far as you were concerned in your examination were you able to form any view as to whether or not ovarian tissue was likely to be present?

A.- This is difficult, if one was seeking to try and place this case amongst known syndromes, it would apply if you had a case of true hermaphroditism, and true hermaphroditism is diagnosed on the finding of both testicular and ovarian tissue. The other alternative, as I said in my original Report, would be a Klinefelter like syndrome with a chromosomal constitution of 46 XX.

Q.- A diagnosis of a Klinefelter-like syndrome would depend upon the absence of ovarian tissue?

A.- Yes.

Q.- Assuming that were the correct diagnosis would there be any doubt as to the proper classification of the Second Petitioner as male or female?

A.- This case is not a typical Klinefelter syndrome, I say a Klinefelter-like syndrome. Klinefelter syndromes are always regarded as male.

BY THE COURT:-

Q.- Who by, I mean in what context are they always regarded as male?

A.- This is because in practically all cases they are what we call the male phenotype, they have a very typical male type of phallus and they all have testicular tissue.

EXAMINATION CONTINUED:-

Q.- And no ovarian tissue?

A.- No ovarian Tissue.

Q.- You told us in your opinion androgens were being produced original, p. 339, 340, 341

179

by this testis and having an effect on the Second Petitioner's body?

A.- Yes.

Q.- Are you in a position to say whether or not the effect on his body of oestrogen's is as significant or not as that produced by the androgens?

A.- Of course, all normal males produce oestrogen's too, the only evidence of activity of oestrogen's might be the development of breasts, but breast development occurs in normal males, perhaps rarely but not infrequently, it occurs in adolescents, it occurs i certain liver diseases, it occurs in quite a variety of conditions in normal males without there being any necessary proof of increased oestrogen activity, but that would be the only evidence as one might say of some oestrogen activity, but breast development can occur in otherwise perfectly normal males.

Q.- Does that mean if the breast development is due to the production of oestrogen those oestrogen's are not necessarily produced by ovarian tissue?

A.- No, they can be produced other than by ovarian tissue.

Q.- So the existence of breasts does not equilibrate the existence of ovarian tissue?

A.- No, it would make it suspect. For instance, in males who develop liver disease and cancer of the lung they develop breasts, and they have no ovarian tissue.

Q.- I wonder if you would just look for one moment at your book No. 17 of Process and at Page 364. I think you there deal with true hermaphroditism?

A.- Yes.

Q.- And I think you show a photograph of a patient aged 70?

A.- Yes.

Q.- And this shows some extent of virilisation, does it not?

A.- Yes.

Q.- How does the virilisation there compare with the virilisation in the present case?

A.- Hair receding at the temples.

Q.- In Figure 12?

A.- In Figure 12, hair receding at the temples, and there is, which is not really evident here, an enlarged phallus.

Q.- There is no hair on the anterior chest wall in this case?

A.- No, which of course this case has fairly considerably.

Q.- The Second Petitioner has?

A.- Yes.

Q.- I think in this particular case an ovotestis was found?

A.- Yes.

Q.- From your information in the present case are you in a position to form any opinion as to whether the gonads from which the testicular tissue was taken is likely to have been a testis or an ovotestis?

A.- It is very difficult to say, one cannot give any answer.

Q.- Can I take it that you have in your considerable experience examined many other cases of true hermaphroditism than the one which is depicted?

A.- No, they are very rare, cases of true hermaphroditism.

BY THE COURT:-

original. p. 341, 342, 343

180

Q.- Can you give a sort of indication of the numbers you have seen in the course of your career?

A.- I should not think I have seen more than two or three. I think the total number of recorded cases is only about 46.

EXAMINATION CONTINUED:-

Q.- As few as that?

A.- There may be more now, but it is a comparatively rare condition.

Q.- By true hermaphroditism you mean an individual possessing a gonad appropriate to either sex?

A.- No, it is an individual who has testicular tissue and ovarian tissue, both. The term, of course, is not the same as what the zoologists use.

Q.- I think we are not concerned with that. I wonder if you would look at No. 19 of Process, this bears to relate to another hermaphrodite, I think it is a publication of Mr. Dewhurst's?

A.- Yes.

Q.- You are no doubt aware of this publication?

A.- No, I don't know this one.

Q.- Just look at the case record, it relates to a 40 year old married man, and it says on Page 2 "there was slight breast development, though hardly sufficient to cause embarrassment. Pubic hair was of female type. The `penis' was moderately enlarged but was below the size of that of a normal man. The glans showed a terminal dimple but no orifice while on the perineum some distance away from the base of the phallus there appeared to be a small opening, on closer examination this proved to be two separate openings". Just pause a moment, so far how does the description here of the glans with a terminal dimple but no orifice correspond with the position in the present case?

A.- I would say very closely.

Q.- And in the present case is there also present an orifice a small distance away from the base of the phallus?

A.- Yes, I think so.

Q.- I think if one reads on one finds that in this case an ovotestis was found just under the photograph on Page 4?

A.- Yes, I see that.

Q.- And finally, looking over the page it appears that, that particular person had an XX arrangement of chromosomes which on the facts as set out would suggest a similarity with the present case?

A.- Yes, this sounds very much like a case of true hermaphroditism.

Q.- Can you just express an opinion as to the comparable state of formation of the testis which was found in the Report I have just referred you to and that which I want you to assume has been found in the present case?

A.- I take it this case shows ovarian tissue, the Dewhurst case?

Q.- May I take it if an ovotestis is described that must consist of both ovarian and testicular tissue?

A.- Yes, that is right.

Q.- Is there any distinction in your view to be drawn between

original, p. 343, 344, 345

181

a gonad in which a vas deferens and an epididymis were not found and one in which the ductus deferens has been found?

A.- A ductus deferens is evidence of a true testis.

BY THE COURT:-

Q.- As opposed to an ovotestis?

A.- Yes.

EXAMINATION CONTINUED:-

Q.- You have expressed the view that taking into account the gonadal situation and the factors you found on clinical examination that so far as those characteristics were concerned there was a preponderance towards masculinity. Considering those factors and also considering the fact that the chromosomal type is 46 XX would that factor cause you to alter the opinion you have already expressed as to the predominance?

A.- Oh no, not at all. I think I have already mentioned that there are cases of 46 XX that are very masculine.

Q.- Those are I think males who are comparable to a person suffering from Klinefelter's syndrome. Is that right?

A.- Yes.

Q.- Do you consider that in considering to which sex an individual should be assigned it is appropriate to take into account psychological sex?

A.- I do, yes.

Q.- Do you consider that in the present case there is any connection between the function of the testicular tissue and the psychological orientation of the Second Petitioner?

A.- I am of the opinion that testicular tissue and testicular hormones predispose towards masculine psychological orientation and vice versa with female.

BY THE COURT:-

Q.- I understand that androgens are the male hormones?

A.- Yes.

Q.- What exactly are hormones, what is known about them?

A.- They are really chemicals and they act on tissues and make the tissues respond in a certain way. They are produced by the various glands in the body.

Q.- And they have been isolated, is that correct?

A.- Yes.

Q.- You can put them in a bottle?

A.- Yes.

CROSS-EXAMINED:-

Q.- Did I understand you to say that the external genitals of Dr. Forbes-Sempill, the Second Petitioner, were predominantly male?

A.- I was taking the general body form including build, and hair distribution and genitalia.

Q.- If you exclude build and hair distribution the genitalia are predominantly female, are they not?

A.- They would be, yes.

Q.- So far as the genitalia are concerned we are faced with a person who is predominantly female?

A.- Well, not exactly, because if we can use the term the original, p. 345, 346, 347

182

phallus is much larger than you find in a female.

Q.- I think in your examination-in-chief you used the word clitoris, were you referring the same organ?

A.- Yes, the term clitoris is used if there is not a urethra going to the end, and it is what you generally use in the female.

Q.- But I was interested in you, having the particular problems we are faced with in mind, referring to it as an enlarged clitoris?

A.- Yes.

Q.- That is to say an enlarged female organ as opposed to a male organ?

A.- Yes, but they all arise from the same embryological tissue, it is just a case of size and micturition, the urethra from the bladder in a normal male goes to the end of the phallus, in some males you have hypospadias in which it opens at the base of the penis and they have female micturition.

Q.- That is an unusual abnormality, is it?

A.- There are quite a number of those cases, they very often are regarded as female and brought up as female because they have female micturition, but otherwise they are totally male.

Q.- And they are brought up as females and live satisfactorily as females?

A.- No, they don't, because they are really normal males who have had a mistake made at birth, because their micturition is female type rather than male type, but whether you call it a clitoris or a penis really depends upon size.

Q.- This is a small organ, is it not, about a centimetre by a centimetre?

A.- Yes, it is very large for a female but small for a male.

Q.- Very small for a male?

A.- Very small for a male.

Q.- In addition there is no scrotum?

A.- No, scrotum.

Q.- There is a vaginal passage I think, is there not?

A.- I would not like to give an opinion on that, because this is the sort of case, if I had been confronted with a case like this clinically I would have obtained the opinion of a gynaecologist, and I have not a gynaecologist's opinion in this case. I have two Reports from Mr. Dewhurst, but they don't give any clue about clinical examination.

Q.- Mr. Dewhurst appeared to suggest it was a vaginal passage? A.- I saw something that looked like an opening, but I am not prepared to say whether it was or not.

Q.- Were you able to form an opinion as to whether there was a likelihood of a uterus here or not?

A.- I could not form any opinion.

Q.- If you look at No.19 of Process and Page 5, which is the article of which Mr. Dewhurst was a co-author do you see there is a summary there "The case is described of a 40 year old hermaphrodite whose social sex was male. The external genitalia showed a moderate-sized penis" - not present in this case, would you agree?

A.- Yes.

Q.- "A perineal urethra" - which is present in this case?

A.- Yes.

original, p. 347, 348, 349

183

Q.- "And a rudimentary vagina" - also present in this case?

A.- Yes.

Q.- "Within the sac of a right inguinal hernia were a single ovotestis, a uterus and a Fallopian tube. Chromosome analyses showed him to have 46 chromosomes with an XX arrangement of sex chromosomes". It would appear from the paragraph above that in "Discussion" if you look at Page 4 "The patient was 40 years old and a married man who wanted treatment for his hernia. It is clear that he had nothing to gain, and perhaps much to lose, by our paying more than passing attention to this aspect of his case. So far as is known, he was fairly well adjusted to the male sex, but that is not to say that he may not have suffered acutely throughout his life by possessing such a deformity". Do you understand that to mean that he had adjusted himself to the male sex when he would have been better adjusted to the female?

A.- No, I don't think that is what this means at all, I have not seen this Paper before, but it is quite obvious that he regarded himself as male, he was male, but he had this anatomical abnormality.

Q.- Having regard to the genital abnormality which is described, it goes on to say, "A genital abnormality of this nature should nowadays call for full investigation within the first year of life, once such an investigation is complete a decision may be made concerning the sex in which it is better to bring the patient up and appropriate plastic surgical procedures can be planned". Having regard to the facts of that case if it had happened nowadays which sex would you expect would be selected?

A.- Male in this case.

Q.- Why do you say that?

A.- He had a normal sized penis.

Q.- A moderate sized penis?

A.- He had been regarded as a male and brought up as a male, so he must have had considerable male characteristics.

Q.- I am sorry there is a misunderstanding between us, having regard to the physical abnormality if this case could have been investigated in the first year of life which sex are you able to say would have been selected?

A.- Male, I don't see how you could have made this case female, it is not a case presumably of congenital adrenal hyperplasia which is a treatable condition, he has got a moderately sized penis which is not due to congenital adrenal hyperplasia, and I presume the plastic surgery referred to would be to give this individual male orientation.

Q.- Would that not be much more difficult than to effect plastic surgery to make him use the perineal urethra and have micturition having regard to the fact there was a rudimentary vagina?

A.- It might have been quite difficult, but it was possible.

Q.- Would surgery to make a person into a female not be much easier?

A.- But it obviously would have been wrong in this case.

Q.- Perhaps it is a bit hypothetical....?

BY THE COURT:-

original, p. 349, 350, 351

184

Q.- Could you just define what the contra indications were in this case according to your opinion in the case in the article?

A.- Well, if there was a moderate sized penis you have got to amputate it if this individual was going to continue as a female, which is rather mutilating.

Q.- It is really the presence of the moderate sized penis which you regard as the central feature?

A.- Yes, they could have done either in this case, and there is no doubt both is done in certain instances, they could have done a plastic operation here to give male micturition.

CROSS-EXAMINATION CONTINUED:-

Q.- And they could have done one to allow female micturition?

A.- They would have had to amputate the phallus which is mutilating in so far as it is an erotic zone, and nowadays they can in the last two or three years do a plastic operation in a female to retain the erotic tissue which would not have been possible formerly.

Q.- Would it not be a fairly mutilating operation to arrange for the urethral tube to go inside the moderate sized penis and produce male micturition?

A.- No, in fact they are so good, plastic surgeons, at this now, that they can give a female one.

Q.- Such an operation would require interference with the moderate sized penis?

A.- You mean to give?

Q.- To insert the urethra tube in some shape or form and produce male micturition?

A.- I have not quite got the question.

Q.- If you were going to provide for the person described male micturition you would have to get the urethric tube inside the penis?

A.- Yes.

Q.- Which would mean, I should have thought, but I may be quite wrong, some mutilating surgery?

A.- No, it is quite a common operation in hyperspadias, there are a certain number of males who are in every way male but their urethra opens at the base of the penis, underneath the base, and operations for hyperspadias have gone on for many, many years, it is quite a common operation amongst surgeons.

Q.- Is it an operation that results in the urethral tube being inserted in some shape or form into the penis?

A.- Yes.

Q.- So that male micturition appears to be normal?

A.- Yes, that is an operation that has been carried out for years and years, it is not an unusual procedure.

Q.- The other case.....?

A.- In my book you have been quoting I showed a case of hyperspadias there when an operation was carried out at the age of 13 or 14 and that individual was brought up as a girl, and changed to the true sex of male and is now married.

Q.- The other thing I would like you to look at is No. 23 of Process which I think is the same case as is photographed in No. 17?

A.- This is the same case as in my book.

original, p. 351, 352, 353

185 Q.- That is the picture on Page 356?

A.- Yes, and also there are two other publications showing the histology of the gonad.

Q.- This is a case of a true hermaphrodite who had lived for 70 years as a female, but the appearance is rather masculine, the hair distribution is male, there is the receding hair line, but unlike the Second Petitioner no breast development?

A.- No.

Q.- And you say that the external genitalia are particularly masculinized?

A.- Yes.

Q.- What resemblance did the external genitalia bear if any to the external genitalia of the Second Petitioner in this case?

A.- The phallus was larger in this case.

Q.- In the case in your Report?

A.- Yes.

Q.- There was a right gonad which was found to be a testis, I think?

A.- Yes.

Q.- Was there any vaginal entry at all, opening?

A.- I am not quite sure about that.

Q.- In any event would you say that this person had been more masculinized than the Second Petitioner?

A.- No, I don't think there is very much difference except the Second Petitioner has more male hair than this patient, as he has hair on the chest and abdomen and legs, he shows more masculine body hair distribution than this case. The phallus in the case in my book is larger than the Second Petitioner's, the Second Petitioner has a more masculine and stocky sort of build than this case.

Q.- Was this case a 46 XX chromosome?

A.- Yes, and we could not find any evidence anywhere of a Y.

Q.- If you look at Page 104 which is the second page of the article in reference to the case I see you say, "In this particular case the possession of the female pattern of sex chromosomes has not proved sufficient to determine the phenotype and has not prevented other factors, which may or may not have been genetically determined, causing masculinization of what would apparently have been a female individual"?

A.- That is on the assumption that now would have to be modified that it was thought that if the chromosomes were 46 XX that individual must have been going to be a female, if it was 46 XY they must have been going to be a male. Now quite a number of cases have been found of males with 46XX.

Q.- Normal males?

A.- Well, they might look like normal males, if you like I will show you the photographs.

Q.- If you could just tell me were they males with normal penis, normal scrotum, normal appearance?

A.- Yes, but with modified testes.

Q.- This particular branch of medical research has been progressing in the last ten years or so?

A.- Oh yes, particularly here in Edinburgh.

Q.- And I think one of the people who is very much concerned with is Professor Strong?

original, p. 353, 354, 355 186 A.- Yes, I have also been associated with it?

Q.- I know you have, so a different view might have been taken in 1959 to what would be taken today?

A.- Yes.

Q.- And a different view might be taken in five or ten years time?

A.- I think all the tendency has been change of a progressive nature, it has been pretty well established you can have a normal male type individual with a 46 XX and with no evidence whatever of a Y.

Q.- Do I understand your evidence to be that the probabilities are in this case that there is some ovarian tissue or has been some ovarian tissue, the case with which we are concerned?

A.- One would suspect it otherwise - he has got to be put into a Klinefelter-like syndrome or true hermaphroditism, I would suspect that it might be a true hermaphroditism with ovarian tissue, but you cannot make that firm diagnosis unless ovarian tissue is found, and so that so far as one could get in this case the individual is one with 46 XX with masculine characteristics.

BY THE COURT:-

Q.- Am I right in thinking that you would have as an alternative to say this is a case of Klinefelter type syndrome?

A.- Klinefelter described clinically certain types of things before it was known what the chromosome constitution was, and he described individuals that had very small testes, very often some breast development and were infertile, that is really males he described. Since then it has been found that the majority of those cases have more than one X, they are XXY, XXXY, or four X's and a Y, the majority of normal male micturition but some of them have hypospadias and some of them have undescended testes.

Q.- But I did understand from what the previous witnesses said there has been no previous Klinefelter case precisely the same as the present one if the present one was such a case. Would you agree with that view?

A.- I remember one case which was a 46 XX quite definitely, and my diagnosis was Klinefelter's syndrome before the chromosome test was carried out.

CROSS-EXAMINATION CONTINUED:-

Q.- There appear to be varying types of Klinefelter's syndrome, people have different features, some with descended small testes, some with undescended testes, is that right?

A.- In order to call any case Klinefelter's syndrome there have to be certain characteristics, and they are small testes.

Q.- There have got to be two testes, are there?

A.- No, not necessarily, there need only be one, sometimes they are undescended, usually descended, or retractable, sometimes they are descended, sometimes they retract very easily.

Q.- I am wondering just on the balance of probabilities, if you see what I mean, whether it is more likely this is a case, the Second Petitioner, where there is ovarian tissue or more likely it is Klinefelter's syndrome without ovarian tissue?

original, p. 355, 356 187 A.- I said in my original Report if I were being pressed for a diagnosis I would be rather in favour of true hermaphroditism rather then Klinefelter's syndrome. Of course, I did not know at that stage what the gonad histology was going to be, it might have shown an ovotestis, and now it shows testicular tissue definitely, so that I cannot make a firm diagnosis of true hermaphroditism.

RE-EXAMINED:-

Q.- You do agree, I think, that the genitalia of the Second Petitioner are abnormal?

A.- Yes.

Q.- Either for male or female?

A.- Yes.

Q.- It was put to you in relation to No. 19 of Process, Mr. Dewhurst's publication, that the description of a moderate penis did not fit the present case. Do you remember that?

A.- Yes.

Q.- It is correct, is it not, that there was a glans with a terminal dimple?

A.- Yes.

Q.- In this case?

A.- Yes.

Q.- In the Second Petitioner's case?

A.- Yes.

Q.- So does that mean that the distinction which you understand to exist between the Second Petitioner's case and the one described here merely relates to the size of the phallus?

A.- Yes, the whole difference between a penis and a clitoris is just a question of size and the fact that in the male the urethra should go to the end.

Q.- I understand that you would not have subscribed to the theory that this man in Mr. Dewhurst's Report if seen very young should have had his penis amputated because you would be destroying the erotic tissue. Is that correct?

A.- Yes.

Adjourned till tomorrow morning at 10 a.m.