Although this treatment modality is therapeutic in nature and therefore not against customs, the legal status of the transsexual after the operation remains his/her own. The constitutionality of the lack of legal recognition of the sexual status of the transsexual after the operation will be examined.
AN OVERVIEW OF THE CONDITION OF TRANSSEXUALISM AND GENDER
REASSIGNMENT PROCEDURES
INTRODUCTION
The nature of the legal system is such that judges and magistrates play an important role in determining the outcome of proceedings in which all citizens use the legal system to protect their rights. The purpose of the surgical and medical treatment to which a person is subjected in order to change his or her gender is to be accepted by the community in which that person lives as a person of the gender indicated by his or her changed appearance.3 Nothing will be achieved by successful conclusion.
AIM OF THE DISSERTATION
Prior to any ethical or legal discussion, an assessment of normal sexual differentiation and demarcation of sex, together with the biological. The meaning of the terms gender reassignment, gender reassignment, gender reassignment, must be evaluated as they are used interchangeably in both the legal and medical literature.
SEXUAL DIFFERENTIATION
In the female, these are the lower third of the vagina and vulva (labia majora, labia minora and clitoris). It is therefore clear that gender identity and sexual orientation differ in definition from the individual's biological sex.
SEXUAL AND GENDER INCONGRUENCY STATES
- THE TRANSSEXUAL
- TRANSVESTITES
- HOMOSEXUALS
- INTERSEX STATES
- TOTAL PENILE DESTRUCTION IN THE MALE CHILD EARLY IN INFANCY
A common symptom of gender dysphoria syndrome is a preference for clothing worn by the opposite sex.52 When cross-dressing, the transsexual tries to identify with the gender to which he/she believes he/she belongs. The legal consequences of sex reassignment surgery on the small male child would be largely the same as on a transsexual.
GENDER REASSIGNMENT PROCECURES
- PREREQUISITES FOR SURGERY
- GENDER REASSIGNMENT SURGERY
Although diagnosing gender dysphoria and determining whether this warrants gender reassignment surgery is primarily the task of. To determine whether the patient is physically fit for surgery, the surgeon can rely on the expertise of the endocrinologist with considerable personal experience in the honnonal treatment of transsexuals.89.
GENDER REASSIGNMENT PROCEDURES
CONCLUSION
MEDICO-LEGAL ASPECTS OF GENDER REASSIGNMENT PROCEDURES
- LEGALITY OF THE SURGERY
- CONSENT
- MEDICAL SKILLS
- MEDICO-LEGAL ASPECTS - CONCLUSION
An investigation into the medico-legal aspects of gender reassignment surgery requires an assessment of the legality of the operation, the consent and the medical skills required for the entire treatment package. What needs to be addressed is the justification of the claim that this type of surgery is indeed therapeutic. Also reported by Strauss was the opinion of the French team that equated this kind.
Consequently, it is not necessary for one spouse to obtain the consent of the other spouse when undergoing gender reassignment. It is submitted that informed consent for gender reassignment surgery in transsexuals is valid for all purposes of the law if the above criteria are met.
THE LEGAL CONSEQUENCES OF GENDER REASSIGNMENT SURGERY -
DOCUMENTARY AMENDMENTS
LEGISLATIVE ENACTMENT
Although Parliament had previously made provision to allow the change of the gender description of a post-operative transsexual in such a person's birth record, there was no legislation that unambiguously recognized such a person. 34; The Minister of the Interior can, on the recommendation of the Minister of Health, change the birth register of any person who has undergone a sex change. description of the sex of such a person and may, for this purpose, require such medical certificates and initiate such examinations as he may deem necessary.,147. The Minister of the Interior has the power to change the sex description of a person who has undergone a sex change in a person's birth register on the recommendation of the Minister of Health.
By inference, it is possible that Parliament intended that the transsexual's post-operative gender should be recognized for all purposes of the law in South Africa. The new Act, which came into force on 1 August 1992, made no provision for changing the description of the sex of any person who had.
THE CONSTITUTION: SECTION 33
The failure to recognize the status of transsexuals who are now undergoing gender reassignment procedures may well be unconstitutional. As previously stated,166 with successful sex reassignment surgery and proper medical treatment, the postoperative transsexual. Kinghom's ID number indicated her gender as male (the system only encodes information about gender in numerical form) and this was picked up by an official at the local licensing office who informed her that she could not license her vehicle as computer system suggested she was a man.
From a social point of view, she was immobilized because she could not drive her vehicle without the necessary driver's license to go on the road. Although Kinghorn's problem apparently resulted from an accident at the ministry, this situation raises several legal and ethical issues and, in a sense, demonstrates the human rights violations imposed on transsexuals who have undergone gender reassignment procedures, but who are denied recognition is denied by law.
THE LEGAL CONSEQUENCES OF GENDER REASSIGNMENT SURGERY -
MARRIAGE AND MATTERS ANCILLARY THERETO
MARRIAGE - DEFINITION AND HISTORICAL PERSPECTIVE
Historical perspective requires a consideration of same-sex marriage, because transsexual relationships have been seen as same-sex. Intolerance towards same-sex relationships began in the second half of the twelfth century, possibly due to an increase in intolerance towards minority groups such as non-Christians, especially Jews. Boswell points out that same-sex unions were widespread in the ancient world, where heterosexual marriage was seen as a dynastic or business arrangement, and love in such relationships, when it occurred, arose after mating.
Western Europe was not the only area where same-sex unions were allowed to flourish. In the case of same-sex marriage, historical abuse is the reason for protecting the rights of same-sex couples.
At the time the parties married, the defendant was aware of the plaintiffs' gender change. Acceptance of the basic premise of our law, that a valid marriage is only between two persons of the. Since marriage is a union between people of opposite biological sexes, the plaintiff's alleged marriage was held to be a nullity.
The effect of the ruling in W v W is that it effectively prevents the postoperative transsexual from getting married at all. A humanistic, rather than legalistic, approach to marriage between two biological males, one of whom had undergone a female gender reassignment procedure, was taken by the New Jersey court in MT V JT.192 The court's decision to grant marriage to be upheld, was diametrically different from the approach in Corbett v Corbett193 and W v W.194 The court was of the opinion that the reassignment operation had harmonized the woman's gender and genitalia to such an extent that as a woman she became fully capable of sexual activity.
THE LEGALITY OF TRANSSEXUAL
MARRIAGES IN POST-APARTHEID SOUTH AFRICA
TRANSSEXUAL MARRIAGES AND THE CONSTITUTION
Section 9 of the Constitution gives every person the right to equal benefits under the law, without unfair discrimination on various grounds, including, but not limited to, religion and sexual orientation. 209. One aspect of the right to privacy that same-sex marriage highlights is the importance of choice in the matter. Marriage laws are based on stereotypes and prejudices, which are contrary to human dignity; 232. b) The purpose of the equality section of the Constitution is to prevent serious violations of human dignity; 233.
The ban on marriages of post-operative transsexuals with persons of their sex before the operation is not justified by Article 36 of the Constitution. Accordingly, it is argued that courts should recognize the legality of post-operative transsexual marriage.
THE IMPACT OF "THE PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR
LEGAL CONSEQUENCES: MATTERS ANCILLARY TO MARRIAGE
- PROPRIETARY CONSEQUENCES OF MARRIAGE
- MARRIAGE BY ANTENUPTIAL CONTRACT The validity of an antenuptial contract hinges on the contracting parties
- ACCRUAL REGIME
- COMMUNITY OF PROPERTY
- THE ADOPTION OF CHILDREN
- CONCEPTION OF A CHILD BY ARTIFICIAL INSEMINATION OF THE DONOR (AID)
- THE ACTUAL MARRIAGE CEREMONY
- COMPENSATION FOR INJURY
- LAW OF EVIDENCE
- THE LAW OF SUCCESSION
- INSURANCE
Regulation 8(1) of the Regulation on Artificial Insemination of Persons and Related Matters, Government Notice No. When the conception is the result of consensual mutual assistance, the man will be considered for all purposes as the father of the child. 268. As a marriage between a post-operative transsexual and a member of his/her biological sex is considered void by law, the "spouse" of such a marriage would not be allowed Street compensation.
Spouses in a (putative) marriage where one of the parties is a post-operative transsexual do not enjoy the above privileges granted to spouses of a valid marriage by probate law, as such a marriage is void. Consequently, the spouse of a putative marriage where one of the parties is a post-operative transsexual cannot succeed in divorce.
CRIMINAL LAW
- INCEST
- BIGAMY
- RAPE
- PROSTITUTION AND SOLICITING Prostitution is defmed as
Bigamy is considered to be "the unlawful and willful entering into of what purports to be a legal marriage ceremony with one person while legally married to another.,300 Thus a person can only be found guilty of bigamy where he or she is a party to an existence. legally valid marriage. This means that no spouse of a marriage, where one of the parties a post-operative. Furthermore, a party to an existing valid marriage cannot be found guilty of bigamy should such a party enter into a second marriage where the other spouse is a post-operative transsexual.
303 A post-operative woman can be raped with all the horror, pain and indignity that a biological woman would experience, but the rapist cannot be convicted of rape as long as the victim is not. Consequently, a post-operative woman who commits acts of prostitution cannot be convicted of the offense if the law does not regard her as a woman, despite the culpability of her conduct.312 "She".
THE LEGAL CONSEQUENSES OF GENDER REASSIGNMENT PROCEDURES IN
SOUTH AFRICA - CONCLUSION
THE RECOGNITION OF A
TRANSSEXUAL'S POST-OPERATIVE SEX- COMPARATIVE LAW
RECOGNITION OF THE POST-OPERATIVE
SEX OF A TRANSSEXUAL BY THE LEGISLATIVE PROCESS
RECOGNITION OF THE POST-OPERATIVE SEX OF A TRANSSEXUAL BYTHE ADMINISTRATIVE
PROCESS
RECOGNITION OF THE POST-OPERATIVE SEX OF A TRANSSEXUAL BY JUDICIAL DETERMINATION
- UNITED KINGDOM
- EUROPEAN COURT OF HUMAN RIGHTS The case of Rees v United Kingdom,350 had the following facts: The
- UNITED STATES OF AMERICA
- AUSTRALIA
It is important that the European Commission of Human Rights352 in the initial examination of the case found it necessary to refer to the case of Van. Allegations of violations of the European Convention on Human Rights are first examined by the European Commission of Human Rights and may then be referred to the European Court of Human Rights by the Commission. Again, in Sheffield and Horsham v United Kingdom357, the European Court of Human Rights ruled in favor of the United Kingdom in relation to a breach of Article 8.
The United States is one of the countries where ad hoc decisions are made by the courts regarding the post-operative gender determination of a transsexual. The decision of the courts in the Australian case Inthe Marriage of C and D (falsely called C)365 was that the marriage of Mr.
THE RECOGNITION OF A TRANSSEXUAL'S POST- OPERATIVE SEX - COMPARATIVE LAW
CONCLUSION: THE NEED FOR A LEGAL RECOGNITION OF THE TRANSSEXUAL'S
The application referred to in subsection (1) must be accompanied by: (a) the birth certificate of the applicant;. 34; 1. (3) If the Director General for Internal Affairs refuses to change the gender description of the applicant in the birth certificate, he must inform the applicant in writing of the reasons for the decision, unless the reasons are publicly announced. ". The decision to change the description of the gender in the birth book would be taken only after a careful review and review of the application by the parties.
There is no doubt that changing the gender description is allowed. 34; 1. (7) If the request is granted, the misdemeanor judge issues an order instructing the general director to change the gender description in the birth book of the person named in the order in accordance with the order."
BIBLIOGRAPHY
McQuoid-Mason DJ. The Privacy Act in South Africa (1978). revised by McQuoid-Mason DJ.) in Joubert W.A.
ARTICLES
Sir "Transsexualism and the Sex-Change Operation: A Contemporary Medico-Iegal and Social Problem Medico-Legal Journal 5. 34; Freedom of Expression: The Constitutionality of the Prohibition of Human Cloning in the Context of the Scientist's Guaranteed Right to Scientific Freedom Research THRHR 579. 34; Transsexual's Nightmare: The Determination of Sexual Identity in English Law International Journal of Law and the Family 139.
OTHER DOCUMENTS
