Gender Questions

    Denial of the ‘Third’ Sex
    Legal Regulation of Trans-Identity in Europe

    Transsexual Pakistani Devia & Boby, 2006. © Jürgen Frembgen The fact that the state is evaluating the success of measures intended to promote equality and ‘emancipation’ is linked to changes in role models in Germany and elsewhere in Europe over the past five decades. Children and the kitchen have long ceased to determine most women’s lives, and what used to be exclusively male-dominated public arenas, such as football stadiums, are opening up – albeit hesitantly – to female spectators. Of course the ‘Equality Report’ will also say how much still remains to be done (overcoming differences in pay for doing the same work, for example), but provided we continue to push for equality we can be satisfied with the way things are going. We believe we are able to determine how we want to live, irrespective of traditional role attributions.

    However, gender roles, which have become flexible in modern Western societies, come up against an innate biological limit. As long as we identify with our biological state of being a woman or a man, and can live that out in accordance with our values, we feel ourselves to be free. Such freedom of action is, however, denied those who are ‘different’ in that the generally anticipated identification with their ‘natural’ gender does not occur. There are many different designations for such people: transsexuals, intersexuals or hermaphrodites, transvestites or cross-dressers, and transgenders.

    That range of designations indicates that this is not a homogeneous (fringe) group. All these people have in common is the fact that, unlike ‘normal people’, they are constantly forced to experience the reality of two sexes as an omnipresent parallel world, one that they can see but from which they are excluded. Even the question of which door in a public lavatory is the right one can become an everyday problem for a trans-person, involving a manoeuvring between bodily and felt sexual identity, with the options of either denying their true gender or attracting attention and disapproval. Non-identification with their body, with their ‘inborn’ gender, leads to constant problematisation of their existence, which is medically or psychologically reduced to the over-simplified diagnosis of ‘disturbed sexual identity’.

    The legal situation

    Here in Germany and in most other European countries such a diagnosis by psychologists and doctors is the precondition for the legal recognition of a trans-person’s gender identity, enabling a correction of their first name and provision of all the official papers. For many people who are not part of the two-sexes norm, official registration of a change from the inborn gender to what is lived is of the utmost importance. Only then do they escape the necessity of self-justification when external appearances do not match the ‘Mr’ or ‘Mrs’ on their bank or identity card. Nevertheless, this procedure is strictly circumscribed and accompanied by problematic conditions. In Germany such cases have been dealt with since 1980 according to the law relating to transsexuals. Like most other comparable legal provisions in Europe, it compels people seeking to change their personal status (amendment of the gender recorded in the register of births and on a birth certificate) to undergo ‘an operation changing external sexual characteristics’, ‘bringing about a clear-cut approximation to the appearance of the other sex’. In some countries, including Germany, this process also includes sterilisation.

    When both the visible and invisible traces of trans-identity have been removed, and the person concerned can once again be externally categorised as one of the two sexes, there follows a year-long daily test of life in the ‘chosen gender’, known as ‘passing’. Behaviour in conformity with a sexual norm is necessary for passing this test; the definition of what this should be lies solely in the power of the ‘experts’ who conduct such tests and make diagnoses. Thus having long hair or riding a woman’s bicycle can cause problems for a man with a female past. Until recently married trans-people were also obliged to get divorced, even though not all marriages break down as a result of a partner’s sex change. Apart from fulfilling their new gender role, a transsexual person must also demonstrate that they suffer from living in an undefined intermediate state between male and female in order to receive a positive assessment.

    Constraints

    Many people do not meet these preconditions, which apply in most European states. They have to manipulate the assessment by faking suffering they do not feel, or they have to demonstrate gender conformity even though they do not want to do so. In a world structured on the basis of two genders, changing their personal status is a necessity – mainly so as to avoid standing out as being different and being constantly reduced to their status as an intermediate sex, which can easily become a great problem at work or when looking for accommodation. In order to achieve this, they have to accept a law which, hand in hand with medicine, forces them back into a bipolar order. Also, not all transsexuals want what is termed a gender-aligning operation; and hardly any are in favour of sterilisation – its associations with the treatment of ‘anti-social elements’, the handicapped, and other people on the margins of society in many European countries between the 1920s and 1940s, culminating under the Nazi dictatorship, make the whole procedure even more dubious. Making a minor bureaucratic formality dependent on drastic infringement of the right to freedom from injury is so disproportionate that, like Thomas Hammarberg, the Council of Europe’s Commissioner for Human Rights, one must speak of discrimination. What purpose can this enforced external gender conformity serve, other than to remove deviations from the two-gender norm so that ‘reality’ can be put right again?

    As a crucial element in gender transformation, ‘passing’ also serves the purpose of concealing sexual manifestations other than those that are recognised. This forces transsexuals to deny their life story, and thus a great part of their identity. Some would like to forget their past, but many transsexuals – and as a result of proliferating queer criticism of the two-sex norm, their number is growing – no longer wish to pay the price for integrating into the two-gender norm by reproducing stereotypes, concealing the TRANS in their identity BETWEEN the sexes. Nonetheless, public authorities persist in categorising them as people who are psychologically ill, and expect them to demonstrate that their very existence is causing them suffering if they are to achieve legal recognition. The problem experienced with the gender assigned to them by society is thus attributed to individual transsexuals supposedly being psychologically disturbed, when it is at least equally a problem caused by social conventions and bureaucratic legal regulations. In this way the legal system denies the conventions and social construction of gender identity and makes it impossible for people to identify with an intermediate state of being, between masculine and feminine, which many transsexuals feel to be completely natural.

    The rights of people with a trans-identity are limited by the assertion of a supposedly natural two-sex norm. Such rights only legalise those transsexuals who identify with this bipolarity, even though they feel themselves to exist in the wrong gender. This fact exposes the sham of freedom of action and thus of the possibility of the open-ended shaping of gender roles, which are still strictly determined and standardised by way of innate or imposed (by way of an operation) physicality. Physical gender is linked to standardised gender expectations, even if this only entails the conformism of addressing someone as ‘Mrs’ or ‘Mr’. People with a trans-identity and sometimes also a trans-appearance have to endure endless legal and social discrimination which maintains the border between ‘our’ world and that of ‘others’.

    All the same, a few attempts are being made to take multi-gendered reality into account. In 2006 the Harvard Business School introduced the category of ‘Transgender’ in its online application form. This is a small step, but it requires precisely the thought process which, if it took place in everyone, would at some point break through the strict two-sex organisation of our society and end the categorical discrimination against transsexuals. However, this third category will be absent from the Federal Republic’s Equality Report, meaning that for the time being legislators are still failing to address the important question of true gender justice.
    Anika Grabenhorst
    is studying Philosophy, History, and History of Art at Bremen University.

    Translated by Tim Nevill
    Copyright: Goethe-Institut e. V., Fikrun wa Fann
    January 2011

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