A Genealogy of Gender Identity - Gender Identity in the ECtHR: Goodwin v UK (Part Three)

Part XII-3

In this third and last part on the Goodwin v UK case I will consider how the Court arrived to its judgment. We can already see, by the comprehensive way they present the legislative framework in the UK, that they are ready to overturn their previous jurisprudence. On the face of it, this seems puzzling, as their own summary of the legal situation for transsexuals (as they were then called) in the UK, evidences quite favourable legal rights (their social standing is a different matter). My sense is that the Goodwin case has more to do with successful lobbying by Press for Change than with objective discrimination. We do know that they were quite successful within a certain sector of the Labour Party and the Liberal Democrats. But this change needed also successful lobbying at the European level especially as the list of countries that allowed gender reassignment and legal sex change (Turkey, Italy, Finland….) shows that this was not a concerted civil rights movement but that different motivations underly these legal developments, including a strong homophobic component. It could very well be that the presence of Nicolas Bratza as the recently appointed British judge could have made the difference in tipping the Court towards a finding against the UK, to which Bratza, broadly sympathetic to LGBT rights, was not going to express a dissenting opinion.

The Court approaches its reasoning in the spirit of the ‘living instrument’ doctrine (Tyrer v UK) therefore assessing the facts ‘in the light of present-day conditions’. It is unfortunate that these conditions are not based on reality, but on the self-identification of Mr Goodwin, who is said to be living as a female. Mr Goodwin was a male who underwent surgery in middle age, therefore went through puberty and had an easily identifiable male body (there are 1000s of differences between males and females bodies, but for the purpose of social recognition the more obvious are height, gait, body shape, voice, adam’s apple, skin texture, hair patterns; a few of these can be modified, but usually the results are mediocre at best). A Court that is not unthetered from reality and is assessing the facts realistically would note that Mr Goodwin is a male who underwent plastic surgery to approximate the genitalia of the female sex and prefers to wear traditional feminine clothing.

I ask you to note how the Court frames the issue:

The Court observes that the applicant, registered at birth as male, has undergone gender re-assignment surgery and lives in society as a female. Nonetheless, the applicant remains, for legal purposes, a male. This has had, and continues to have, effects on the applicant's life where sex is of legal relevance and distinctions are made between men and women, as, inter alia, in the area of pensions and retirement age.

There are legitimate reasons why sometimes sex is of legal relevance (though the Court is clearly not bothered by those cases in which women, by reason of their sex, need specific rights) and more than 99% of the population are clearly benefitting by rules that take sex into account. Back then, this would have unfortunately included rules that benefitted men because of their sex, but to get rid of all rules that take into account this difference is the classic example of throwing the baby with the bathwater. Women benefit from becoming ‘visible’ in law, as we all know that in the past the default human was a male, and no account was taken of females who are full humans on their own right, but fundamentally different from males in many respects that have to do with their bodies.

Instead, the Court only considers what nugatory negative effect this distinction may have on the tiny percentage of humans who do not accept the reality of their sex and wish to deceive themselves as well as others about such reality. The length to which society is now required to pander to such delusions is becoming clearer and clearer. But the foundations were laid in cases such as Goodwin.

The entirety of the Court’s summary of the facts of the case take for granted that Goodwin’s reality = social reality. That if it were not for those pesky legal rules, noone would know that this person is a male impersonating a female through the most regressive stereotypes of femininity. That the humiliation suffered by Goodwin is due to having to disclose a male birth certificate to an unsuspecting employer, as if we were on the set of Tootsie. That the fact that the NHS pays for sex reassignment surgery to ameliorate a mental health condition imposes a duty on the entire society to accept the results as if the treatment became, instead of a (arbitrary and barbaric) way to deal with a mental health condition by mutilating a healthy body, a way to force third parties without any specific interest in this person to validate his or her choice of treatment even against their own convictions.

In the paragraph on medical and scientific considerations we get the usual half baked proposals of biological differences in the brain of transsexuals (as if, even if this were the case, this proved some way that they are actually the opposite sex) and references to the Diagnostic and Statistic Manual, reframing transsexualism as ‘gender identity disorder’. The DSM is infamous for its ideological classifications (same sex sexual orientation was for a long time classified as a disease) but it is routinely referred to when it suits one’s ideological position. Proof of this is that this classification as a disorder is now considered, what else, transphobic, and yet on it rests the edifice of the trans turn in human rights.

This paragraph is a stark illustration of how not to engage with scientific evidence in a legal setting:

While it also remains the case that a transsexual cannot acquire all the biological characteristics of the assigned sex , the Court notes that with increasingly sophisticated surgery and types of hormonal treatments, the principal unchanging biological aspect of gender identity is the chromosomal element. It is known however that chromosomal anomalies may arise naturally (for example, in cases of intersex conditions where the biological criteria at birth are not congruent) and in those cases, some persons have to be assigned to one sex or the other as seems most appropriate in the circumstances of the individual case. It is not apparent to the Court that the chromosomal element, amongst all the others, must inevitably take on decisive significance for the purposes of legal attribution of gender identity for transsexuals.

We are apparently faced with intelligent people who have no clue about the function and significance of sex in humans. One wonders whether they consider reproduction a biological characteristic of sex or not. The fact they think that surgery and hormones can effectively change sex in all aspects except chromosomes is a sobering realisation. And then, since in 0.02% of humans there are abnormalities in the sex chromosomes this difference does not really matter anyway.

And then, with a final flourish, they conclude that chromosomes cannot be decisive for the attribution of gender identity for transsexuals. Whoever thought so? Until now, the Court referred to chromosomes as signifiers of sex. It is a clumsy sleigh of hand, and yet, this is another crucial stepping stone on dismantling sex as the significant difference between men and women. The fact that women are the only sex on whom the entirety of reproductive labour for the human race rests is waved away. Sophisticated surgery can, the Court confidently asserts, with perfect Dunning-Kruger pitch, transform a male into a female except chromosomes.

Nonetheless, the Court concludes that scientific evidence is not determinative of the issue. Equally, while it is still according states a wide margin of appreciation, it is willing to look with favour at the emerging international trend in favour of recognition.

In paragraphs 90-91 the Court sets out the reasoning behind its decision to find a breach of Article 8; it is worth quoting in full:

90. Nonetheless, the very essence of the Convention is respect for human dignity and human freedom. Under Article 8 of the Convention in particular, where the notion of personal autonomy is an important principle underlying the interpretation of its guarantees, protection is given to the personal sphere of each individual, including the right to establish details of their identity as individual human beings […]. In the twenty first century the right of transsexuals to personal development and to physical and moral security in the full sense enjoyed by others in society cannot be regarded as a matter of controversy requiring the lapse of time to cast clearer light on the issues involved. In short, the unsatisfactory situation in which post-operative transsexuals live in an intermediate zone as not quite one gender or the other is no longer sustainable. Domestic recognition of this evaluation may be found in the report of the Interdepartmental Working Group and the Court of Appeal's judgment of Bellinger v. Bellinger […].

91. The Court does not underestimate the difficulties posed or the important repercussions which any major change in the system will inevitably have, not only in the field of birth registration, but also in the areas of access to records, family law, affiliation, inheritance, criminal justice, employment, social security and insurance. However, as is made clear by the report of the Interdepartmental Working Group, these problems are far from insuperable, to the extent that the Working Group felt able to propose as one of the options full legal recognition of the new gender, subject to certain criteria and procedures. As Lord Justice Thorpe observed in the Bellinger case, any “spectral difficulties”, particularly in the field of family law, are both manageable and acceptable if confined to the case of fully achieved and post-operative transsexuals. Nor is the Court convinced by arguments that allowing the applicant to fall under the rules applicable to women, which would also change the date of eligibility for her state pension, would cause any injustice to others in the national insurance and state pension systems as alleged by the Government. No concrete or substantial hardship or detriment to the public interest has indeed been demonstrated as likely to flow from any change to the status of transsexuals and, as regards other possible consequences, the Court considers that society may reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the sexual identity chosen by them at great personal cost.

‘A certain inconvenience’. The Court does not seem to having even considered how allowing a male to change his legal sex to the female may affect women, who are the female sex by default. It is sometimes facile to resort to claims of structural sexism or racism, to explain the absolute blind spot that institutions have as regards to the effects of their decisions and actions on women or race minorities. But little else explains the absolute silence of the Court on the inevitable effects of allowing a male to redefine womanhood to suit his fetish or even his mental disorder.

Mr Goodwin had also raised a claim with regards to Article 12, the right to marry. The Court finds a breach in this case as well. They are content to consider that, if a man undergoes surgery, he becomes a woman. Where the sexes are conceptualised as the one who penetrates and the one who is penetrated. This is not said explicitely but significantly, the section opens with the statement, by Mr Goodwin that he ‘enjoyed a full physical relationship with a man’. This is enough for the Court. Mr Goodwin feels like a woman, and he is penetrated like a woman. Ergo, he can marry a man. Marriage reduced to traditional sex positions. The rest is just flourish. And a reminder that men or women who defied traditional sex roles and entered same sex relationships were not granted the basic right to marriage that the Court is sure Mr Goodwin so richly deserves.

In closing I should just note that there are no partially dissenting or dissenting opinions on the judgment, except on the marginal issue of the rate of interest to be paid for the costs and expenses granted to the claimant.