A Genealogy of Gender Identity - The Encounter with International Law Part II: the M.T. v. J.T. case

Part XVIII

In 1986, Tel Aviv hosted the Second Symposium on Psycholegal Aspects of Sexual Problems. Funding was provided by Schering Corporations, a company that we have already seen involved in financing research into transsexuality and one of the main producers of hormones for the pharmaeutical market.

The programme of the symposium was relying on scholarship from the United Kingdom, as noted in the introduction:

A group of internationally known writers and researchers in this area were recruited from the United Kingdom; five speakers, whose papers are presented in the following pages attended, formed the basis of the seminar. Dr Haslam as author of “Sexual Disorders”, and a researcher in this area and clinician for many years chaired the meeting. Professor DJ West from Cambridge spoke on the “Legal Aspects of Homosexuality”, Mary Lorrigan from Newcastle spoke on the theme of the “Law, and Female Sexuality” and Dr Roy Mottram spoke on the “Legal Aspects of Transsexualism”. Dr Willmott and Harry Brierley (both clinical psychologists working in the field in Great Britain) presented a paper on “Sex Change, the Dilemma”, and Dr Richard Ekins, a sociologist in Northern Ireland involved with cases before the Court of Human Rights spoke on “Transsexualism and the Court of Human Rights.”

Unfortunately the paper by Dr Mottram is not availabe in the Archives. We do know who he was from an article published in 1984 in “The Listener”, a magazine published by the BBC from 1929 to 1991. The article describes Dr Mottram as a former naval officer and university lecturer and a transvestite. The description of his background reveals all the usual elements: covert transvestitism since childhood, a marriage, children and then a divorce because his wife did not accept his fetish. He also reveals ties with the Beaumont Society, described as an organisation for heterosexual transvestites. The article’s description of Dr Mottram and his own idea of himself are highly revealing:

Dressed as Rosemary, Dr Mottram sews him own clothes, gardens and goes shopping. He has two bikes, one for Rosemary, the other for Roy. ‘I cannot conceive of Rosemary standing up in front of 150 medical students and holding that audience.’ he says. [emphasis added] ‘Similarly, when I'm working at home, if circumstances are right, then it’s Rosemary that works on, say, bookwriting, essay-marking or lecture-preparing.’ What is extraordinary about men like Ben and Roy is the very ordinariness of their daily lives. Their compulsion to wear women’s clothes-and the social disapproval attached to that-might be more understandable if the men who cross-dressed were, in some way, outrageous in their everyday lives. But they are almost invariably highly conventional. “We lead quite ordinary, normal, decent lives, doing very ordinary, normal, decent lives, doing very ordinary, boring everyday things,” says Ben, who shares a view common to other transvestites; that as a man he has to be aggressive, unemotional, dominant and macho. This stereotyped image prevents most cross-dressers from revealing the softer, more ‘feminine’ side of their personalities as men. Even their perception of the woman ranging from the ‘twinset-and-pearls’ image to the ‘tart with-a-heart’ look. They desire to be soft, pretty, vulnerable and set out to be more feminine than their female counterparts. Even if, for some, a successful transition depends on a greater element of self-deception than reality. It is often with a degree of despair and envy that many of these secret admirers of the feminine world view the changes taking place among the ‘fairer sex’. Women have become more assertive, challenging men for jobs that were once exclusively male. Women can walk down the High Street openly wearing men’s clothes and be described as fashionable, rather than perverted. The tender convergence of recent years has been lopsided and unjust, assert the male cross-dressers. They remain, meanwhile, one of Britain's socially unacceptable and secretive minorities. Says Dr Mottram: ‘If you extend the word “perversion” to other aspects of behaviour, then the transvestite is far less socially disruptive than the person who drinks too much, the person who gambles, the person who indulges in violence on the football terraces. They are all much more perverted socially than a transvestite.’

If you think that things have moved on from when Dr Mottram thought he could not deliver a lecture as a woman, consider the transgender barrister Robin White, who uses his male voice in court (obviously judging it more authoritative). Two elements jump to our eyes: the stereotypical view of women, and the envy of women’s newly gained rights. How dare women dress ‘in men’s clothes’ without any societal disapproval? The erotic element of transvestitism is absent, in a pitiful display of denial. Women do not wear trousers because they find it arousing.

It is unfortunate Dr Mottram’s paper is not available, though Dr Mottram was professor of physiology at the University of Cardiff so he had no legal expertise.

Sociologist Richard Ekins also had no legal background, but his paper is the only one made available in the Transgender Archives and it is of considerable interest as it analyses the cases of Corbett v Corbett and M.T. v. J.T.

These two cases, the first from 1970 and decided in the High Court in the UK and the second in the Appellate Division of the Superior Court in New Jersey and from 1976, came to opposite conclusions as to what determined sex in the law and therefore whether transsexuals had the right to marry.

According to the Judge in Corbett, biological sex is what matters in law:

I must now deal with the anatomical and physiological anomalies of the sex organs, although I think that this part of the evidence is of marginal significance only in the present case. In other cases, it may be of cardinal importance. All the medical witnesses accept that there are, at least, four criteria for assessing the sexual condition of an individual. These are-

(i) Chromosomal factors.

(ii) Gonadal factors (ie presence or absence of testes or ovaries).

(iii) Genital factors (including internal sex organs).

(iv) Psychological factors

[…] the biological sexual constitution of an individual is fixed at birth (at the latest), and cannot be changed, either by the natural development of organs of the opposite sex, or by medical or surgical means. The respondent’s operation, therefore, cannot affect her true sex.

A considerable section of the judgment is dedicated to the question whether it is possible to consummate a marriage between a post-op transgender male and a male, given that in English law a marriage that had not been consummated can be declared null and invalid. This aspect is not necessarily relevant here, though it is quite revealing of the prejudices of the time.

In contrast, the Judge in M.T. v. J.T. took a different approach, ushering the era of gender identity as the true signifier of sex. In his reasoning, he explains it as follows:

We cannot join the reasoning of the Corbett case. The evidence before this court teaches that there are several criteria or standards which may be relevant in determining the sex of an individual. It is true that the anatomical test, the genitalia of an individual, is unquestionably significant and probably in most instances indispensable. For example, sex classification of an individual at birth may as a practical matter rely upon this test. For other purposes, however, where sex differentiation is required or accepted, such as for public records, service in the branches of the armed forces, participation in certain regulated sports activities, eligibility for types of employment and the like, other tests in addition to genitalia may also be important.

Against the backdrop of the evidence in the present record we must disagree with the conclusion reached in Corbett that for purposes of marriage sex is somehow irrevocably cast at the moment of birth, and that for adjudging the capacity to enter marriage, sex in its biological sense should be the exclusive standard.

Our departure from the Corbett thesis is not a matter of semantics. It stems from a fundamentally different understanding of what is meant by “sex” for marital purposes. The English court apparently felt that sex and gender were disparate phenomena. In a given case there may, of course, be such a difference. A preoperative transsexual is an example of that kind of disharmony, and most experts would be satisfied that the individual should be classified according to biological criteria. The evidence and authority which we have examined, however, show that a person’s sex or sexuality embraces an individual’s gender, that is, one’s self-image, the deep psychological or emotional sense of sexual identity and character. […]

The English court believed, we feel incorrectly, that an anatomical change of genitalia in the case of a transsexual cannot “affect her true sex.” Its conclusion was rooted in the premise that “true sex” was required to be ascertained even for marital purposes by biological criteria. In the case of a transsexual following surgery, however, according to the expert testimony presented here, the dual tests of anatomy and gender are more significant. On this evidential demonstration, therefore, we are impelled to the conclusion that for marital purposes if the anatomical or genital features of a genuine transsexual are made to conform to the person’s gender, psyche or psychological sex, then identity by sex must be governed by the congruence of these standards.

Implicit in the reasoning underpinning our determination is the tacit but valid assumption of the lower court and the experts upon whom reliance was placed that for purposes of marriage under the circumstances of this case, it is the sexual capacity of the individual which must be scrutinized. Sexual capacity or sexuality in this frame of reference requires the coalescence of both the physical ability and the psychological and emotional orientation to engage in sexual intercourse as either a male or a female. […]

the application of a simple formula could and should be the test of gender, and that formula is as follows: Where there is disharmony between the psychological sex and the anatomical sex, the social sex or gender of the individual will be determined by the anatomical sex. Where, however, with or without medical intervention, the psychological sex and the anatomical sex are harmonized, then the social sex or gender of the individual should be made to conform to the harmonized status of the individual and, if such conformity requires changes of a statistical nature, then such changes should be made. Of course, such changes should be made only in those cases where physiological orientation is complete.

[…]

In sum, it has been established that an individual suffering from the condition of transsexualism is one with a disparity between his or her genitalia or anatomical sex and his or her gender, that is, the individual’s strong and consistent emotional and psychological sense of sexual being. A transsexual in a proper case can be treated medically by certain supportive measures and through surgery to remove and replace existing genitalia with sex organs which will coincide with the person’s gender. If such sex reassignment surgery is successful and the postoperative transsexual is, by virtue of medical treatment, thereby possessed of the full capacity to function sexually as a male or female, as the case may be, we perceive no legal barrier, cognizable social taboo, or reason grounded in public policy to prevent that person’s identification at least for purposes of marriage to the sex finally indicated.

In this case the transsexual’s gender and genitalia are no longer discordant; they have been harmonized through medical treatment. Plaintiff has become physically and psychologically unified and fully capable of sexual activity consistent with her reconciled sexual attributes of gender and anatomy. Consequently, plaintiff should be considered a member of the female sex for marital purposes. It follows that such an individual would have the capacity to enter into a valid marriage relationship with a person of the opposite sex and did do so here. In so ruling we do no more than give legal effect to a fait accompli, based upon medical judgment and action which are irreversible. Such recognition will promote the individual’s quest for inner peace and personal happiness, while in no way disserving any societal interest, principle of public order or precept of morality.

According to Dr Ekins, in a revealing summary of these two cases, following M.T. v. J.T. ‘A psychological essentialism has replaced the biological essentialism of Corbett v. Corbett.’ We know that international law did not take the road pointed by Judge Ormond in Corbett v Corbett and a reminder that Judge Ormond was a medical doctor befor he entered the legal profession; Judge Handler, the judge in the M.T. v. J.T. had no such background so he relied more heavily on the expert opinions, which included the plaintiff’s own doctor, and a specialist from Johns Hopkins Gender Clinic. His doctor, Dr Ihlenfeld, testified that:

There was, however, “very little disagreement” on the fact that gender identity generally is established “very, very firmly, almost immediately, by the age of 3 to 4 years.” He defined gender identity as “a sense, a total sense of self as being masculine or female”; it “pervades one’s entire concept of one’s place in life, of one’s place in society and in point of fact the actual facts of the anatomy are really secondary.”

Charles L. Ihlenfeld worked with endocrynologist Harry Benjamin. Harry Benjamin had studied at the German Institut für Sexualwissenschaft before moving to the United States. In 1948 he was contacted in San Francisco by the sexologist Dr Alfred Kinsey, who referred to him a child suffering from dysphoria, which he decided to treat with estrogen, also convincing the mother to travel to Germany to have surgery on the child. There is no follow up to this story. He also treated Reed Erickson, the industrialist who funded the Erickson Educational Foundation in 1964. The World Professional Association for Transgender Health, a lobby group masquerading as a health organisation, was originally named the Harry Benjamin International Gender Dysphoria Association.

In the creation of gender identity as a material fact, M.T. v. J.T. has an important place in international law, as well as in US domestic law.