The UK government prior to the hearing at the Commission presented the following documents, in camera.




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Transsexualism, medicine and law




XXlllrd Colloquy on European Law

Vrije Universiteit Amsterdam (Netherlands), 14-16 April 1993


 Council of Europe Publishing, 1995



Report presented by

Dr Russell REID

Consultant Psychiatrist

Hillingdon Hospital, Uxbridge, Middlesex

(United Kingdom)

In view of the multidisciplinary nature of the subject under review this report

has been co-authored with Professor Dr P.T. COHEN-KETTENIS, Professor of

Gender Development and Psychopathology at the Department of Child Psychiatry,

University Hospital, Rijksuniversiteit Utrecht, The Netherlands, and Professor Dr

LJ.G. GOOREN, Professor of Transsexology at the Department of

Endocrinology/Andrology, Free University Hospital of Amsterdam, The Netherlands. TRANSSEXUALISM


When a postpubertal individual suffers from a deep and persistent dissatisfaction with his or her anatomical sex and for more than two years wishes to undergo a sex change, this person, according to the widely used psychiatric classification system Diagnostic and Statistic Manual Ill- Revised (DSM III-R, 1987), is called a transsexual. The term is an unfortunate one because transsexualism often is mistaken for a sexual problem, as a dysfunction of the sexual response system (eg impotence) or as paraphiiac sexual arousal patterns (eg leather fetishism). Instead transsexualism is better conceptualised as a gender identity disorder or an extreme form of gender dysphoria.

Gender is defined as one’s personal, social and legal status as male or female or mixed, on the basis of somatic and behavioural criteria more inclusive than the genital criterion and/or erotic criterion alone (Money, 1988).

Gender identity refers to one’s basic sense of self as a male or a female. It has cognitive as well as affective components. Gender identity and biological sex usually are congruent. In some cases, however, mild to severe discrepancies exist, causing feelings of gender dysphoria. These feelings may or may not be communicated to others by means of cross-dressing or other forms of cross-gender role behaviour.


Female-to-male transsexuals rated both parents as more rejecting and less emotionally warm, but only their mothers as more (over)protective than their female control equivalents rated theirs (Parker and Barr, 1982; Cohen-Kettenis and Arrindell, 1990).

Theories supporting parental influences as a cause of gender identity seem to be supported by the above findings. It is conceivable, however, that environmental characteristics such as child-rearing practices, associated with parental pathology and family constellation lead to some, but not all, kinds of gender identity disorders. For the development of some gender disorders these environmental characteristics may constitute a sufficient condition. For the development of transsexualism environmental factors may be necessary, but not sufficient. Reseaith is now being conducted to investigate the possible etiological role of biological factors.

In a study on cognitive functioning and lateralisation among adult transsexuals, male-to-female transsexuals were found to show gender atypical cognitive patterns (they are better in verbal memory, and worse in mental rotation tasks than a control group). Both the biological male and female transsexual group did not show cerebral lateralisation (that is, they did not have a clear right or left hemisphere advantage in processing verbal information). For males cognitive and lateralisation patterns are thought to be associated with prenatal hormonal exposure to sex steroids (Witelson, 1991), though the latter has been criticised (the reader is referred to the contribution on biological aspects of transsexualism of Gooren in this issue).

At present neither psychology/psychiatry nor the biosciences can provide a conclusive or even a satisfactory explanation of the etiology of gender identity disorders. There are no known biological factors in the history of transsexuals which distinguish them from non-transsexuals. So far some psychological elements in the postnatal formation of gender identity and its disorders have been identified, but it remains obscure to what degree they have contributed to the development of transsexualism. It would seem that unfavourable psychological factors in the gender identity development process must coincide with a certain biological predisposition to end in transsexualism, but much has still to be learnt.

Money (1988) has drawn a parallel with language acquisition in children. A biological substrate of hearing-intermediate brain functions-speaking is a requirement for acquisition of a language. Which language that is depends largely on environmental factors early on in life. The parallel goes further in that it is difficult to "set oneself free" from the originally acquired mother tongue. It becomes an intimate part of the self.

The relationship between childhood identity disorders and adult transsexualism

Not all children with gender identity disorders are future transsexuals. Prospective studies of gender disordered boys (Green, 1987: Money and Russo, 1979; Zuger, 1984) show that this phenomenon is more strongly related to later homosexuality than to later transsexualism. These findings correspond with



presented by

Professor Jaap E. DOEK

Free University, Amsterdam


At the beginning of this century William Sharp lived as a woman under the name of Fiona Macleod for the last ten years of her life. Shortly before his death, he told his friends about what he called his "unexplainable mystery". William Sharp is one of the many cases Bullough (1975) described in his study about transsexualism in history. At the time these cases were not labelled as transsexualism; this term was first used just over 40 years ago by Cauldwell (1949).

It was in particular the American physician Harry Benjamin (1966) who made his colleagues and the public at large aware of the specific problems that transsexuals were facing in our society. He is considered to be the pioneer in the field of transsexualism, medicine and the law. He started and developed treatment programmes for transsexuals and his work has been recognised by the fact that the organisation of professionals working in the field of transsexualism is called "The Harry Benjamin International Gender Dysphoria Association.

Since Harry Benjamin started his work, a lot of research has been done and treatment programmes, in particular sex reassignment surgery, have been further developed and improved.

Transsexualism is therefore less of a mystery than it was in the days of William Sharp, but there are still aspects of the phenomenon which are difficult to explain. Transsexualism remains an enigmatic problem, not only for biologists (see Gooren’s memorandum) but also for legal professionals (judges, legislators, lawyers). It is therefore appropriate that the Council of Europe should have organised a Colloquy on "Transsexualism, Medicine and Law’.

In this General Report I shall try to present to you, as systematically as possible, the information presented at this XXIIIrd Colloquy on European Law by means of reports, co-reports, memoranda and discussions. Where it seemed useful, the information was complemented by information from additional sources (see list of references).
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Research carried out by Gooren (1986 a+b) has shown that this theory is not correct. Nevertheless, recent well-documented Morphometric analysis of the human sexually dimorphic nucleus (SDN) revealed that the volume is more than twice as great in adult men compared to women and contains twice as many cells. It was found that this sex difference was not constant over the life span. During the first postnatal years there is rapid increase in cell numbers in both boys and girls. After the age of 2-4 years, the human SDN becomes sex differentiated: the SDN becomes smaller (in cell numbers and volume) in girls than in boys in whom it stays unaltered up to the age of 50.

Furthermore, it has been found that brain lateralisation. verbal ability and spatial ability vary with sex. Women perform better than men on verbal tasks, while men out-perform women on visio-spatial tasks.

Studies conducted in transsexuals (see Professor Gooren ‘s memorandum) point to brain functions different from their control groups. But the relation with abnormal prenatal endocrine milieu has been difficult to establish as an explanation for this phenomenon. It is questionable whether hormonal events play an important role in the establishment of gender identity.

In conclusion: it seems that biological factors do not (yet) provide us with a satisfactory explanation for cross-gender identity development. Further research is necessary to identify the factors causing the sex differences in brain functions and the abnormal pattern in transsexuals.

4.2. Psychological factors

Psychological explanations of the cross-gender identity development are based mainly on psycho-analytic theories. In this theory the blissful symbiosis" with the mother prevents the normal "dis-identification’: as a result, the original female identity of the boy (the so-called proto-femininity) develops more strongly. The boy identifies himself with the mother and develops in a female direction.

The development of girls is comparable with that of boys. The girls fantasise about being boys. They feel rejected and disappointed with their female genitals. To close the gap with their mothers, they develop in a male direction (Sioller, 1975).

Other psycho-analysts consider transsexuality as a response to subconscious neurotic conflicts eg the difficulty of accepting one’s homosexuality.

Other theories such as the social learning theory and the cognitive learning theory have developed explanations for gender identity development, hut lack a more specific implementation of their theories on transsexuals.

From these theories it may be concluded that the (quality of the) parent-child relationship may play a role in the development of the gender identity. As Reid said in his report, environmental factors may he necessary for the development of transsexualism, but are as such not sufficient to explain this cross-gender identity.


In conclusion (see Reid’s report): neither psychology/psychiatry nor the biosciences can provide a conclusive or even satisfactory explanation of the etiology of gender identity disorders. It would seem that unfavourable psychological factors in the gender identity development process must coincide with a certain biological predisposition to end in transsexualism. But much has still to be learnt.


If we look at transsexualism as a problem of gender dysphoria or disorder, there are two possible approaches.

1. The gender 3dentity is to he adjusted to the body. meaning, brought in line with the physical gender characteristics (male or female) by means of psychotherapy.

2. The body. the physical gender characteristics is to be adjusted to the

gender identity of the transsexual via sex reassignment surgery


Preference for one or the other approach depends largely on ones belief in the changeability of the gender identity.

Literature and research indicate that the prevailing opinion among professionals working with transsexuals is that a persons gender identity cannot he changed because this identity has been definitively formed during the early years (between 2-4 years of age); this so-called "core-gender identity" cannot be changed. This applies for all sexes, including transsexuals.

The second approach - the adjustment of the body to the gender identity - is therefore considered to be the best, if not the only treatment for transsexuals. Nevertheless, I shall deal briefly with psychotherapy first. followed by a summary of SRS-treatment.

5.1. Psychotherapy

Particularly those authors who see transsexualism as a response to personal, internal conflicts (see § 4.2. Psychological factors), consider psychotherapy as the only treatment indicated (see eg Meyer. 1982). Some authors distinguish ‘early onset" and "late onset" transsexuals (or primary and secondary transsexuals) and they think that the ‘late onset transsexuals in particular could benefit from psychotherapy because they suffer from a gender dysphoria caused by some stressful events (eg Keller e.a, 1982).

In the literature about ten successful psycho-therapeutic treatments of transsexuals can be found, meaning that the treated transsexuals relinquished their desire to have SRS. There is however very little long-term follow-up to show that this has been more than only a temporary suppression of the gender dysphoria or indeed a cure (Cohen-Kettenis and Kuiper. 1984).

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International Commission on Civil Status

On behalf of the delegation of the International Commission on Civil Status, I should like to express our great satisfaction at the way the colloquy has gone.

We have heard transsexuals themselves describe their legitimate desire to see their physical condition reflected in the law, including official documents. During the discussions on day two, it seemed that the law was being relegated to a secondary position, that of a kind of back office. In fact, civil status occupies a relatively neutral position and is above political controversy. Civil status registration provides clear and objective records of the essential information on individuals. Registration officers do not act according to their own whims or desires. They apply the rules issued by the legislators, authorities and courts strictly and fairly.

On day three of the colloquy, we saw law come back into its own. It became clear that civil Status certificates (or their equivalent in other legal systems) have become a major issue for transsexuals seeking confirmation ("crowning", according to Mr Delvaux) of their new physical image in a new administrative status.

Professor Will expressed disappointment that neither the Council of Europe nor the International Commission on Civil Status had acted earlier to prevent the legal confusion that now prevails regarding transsexualism. I should just like to say that both our Commission and the Council of Europe are perfectly well equipped to take the necessary action here, but not before receiving the relevant instructions from member governments.

If the governments finally give the go-ahead for international legal activity in this field, our Commission will be at their disposal to take any necessary initiatives, in close cooperation with the Council of Europe. In such an event, our specific contribution could be to draft an instrument concerning the recognition of foreign decisions in respect of sex reassignment.

Of course, the lack of legal harmonisation between countries is something which everybody regrets. The International Commission on Civil Status is there to help resolve this problem, which is related to the phenomenon of the international movement of individuals. The more members we have, the more effective will be our harmonisation activities. I therefore hope that more countries will join us, either as observers or members.

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