Sunday 1 March 2009

Can male transsexuals use women’s washrooms and change rooms?

There can be no doubt in anyone’s mind that one of the most perplexing problems facing society in this modern era is; at what stage can a male transsexual use a woman’s area in a fitness club? This problem is going to be looked into by the Human Rights Tribunal in Ontario in the near future as a result of a complaint by a transsexual who was told that he was denied access to the Woman’s Area in a St. Catharines, Ontario fitness club. The transsexual – now a woman – was a man at the time of the incident two years ago.

It is not my intention to deal with whether or not men should be permitted to dress like women since there is no law that says they can’t, at least not in Canada. Rather, I wish to deal with the issue as to what stage of the transsexual’s life does his right to use a woman’s washroom, changing room or woman’s area, begin.

First of all, let me get one thing out of the way. There is a difference between a cross dresser and a transsexual. (also referred to as transgender) The former likes to dress as a woman but generally, that is where it ends. The transsexual goes all the way from cross dressing to having a physical sex change.

Before going into the issue that is pending in the Human Rights Tribunal in Ontario, I will give you some background information on transsexualism.

Male-to-female transsexuals exhibit feminized/demasculinized patterns of cognitive performance. Sexual orientation, a fundamental aspect of personality, is considered to be the result of prenatal or early life events by many researchers. I don’t know if a male fetus will grow up after birth thinking he is a girl because his mother said during gestation that she wants a girl but obviously, if a boy is treated like a girl by his parents, he is probably more likely to begin thinking like a girl. I suppose it is also possible that if a boy grows up in a household in which there are only woman and girls, he might begin behaving like a girl.

Although oral and recorded history indicates that the transgender presence has always existed, only in recent history have efforts been made to diagnose and treat this condition. Science has established the differences between men and women and recognized psychological and social influences. There now seems to be an emerging and evolving struggle to discover a biological cause and to medicalize the transsexual condition.

Because the concept of transsexualism as a public presence has only been acknowledged in any meaningful way since the 1950s, it remains virtually unknown and misunderstood in contemporary society. However, theorists agree that persons who claim the title of transsexual have been present through all time and all cultures. The difference today is that medical and surgical technologies are now available to them whereas in the past, such medical procedures were denied to them.

The social context and environment in which transsexualism is experienced is an important focus in understanding the impact and influence that culture, mores, values, and rules of normalcy have on those trying to live their own unique lives.

Most researchers on transsexualism assume that sexual orientation remains consistent throughout the sex reassignment process. Although postoperative transsexuals may experience dramatic changes in anatomy, personal relationships, and social status, their sexual orientation is not presumed to change.

Although there were quite a few sex-reassignment surgeries performed in the early part of the Twentieth Century, it wasn't until the late 40s and early 50s that transsexualism moved into the public spotlight. That happened when the first American, Christine Jorgensen, had sex-reassignment surgery in 1952. She traveled to Copenhagen, where surgeons Paul Fough-Anderson and Erling Dahl-Iversen performed her initial operation. The operation wasn’t done in the United States because despite its growing prevalence in Europe, surgeons in the United States were hesitant to perform the operation, primarily for fear of prosecution, both civil and criminal.
However, through the 1980s, more private surgeons began taking up the mantle of sex-reassignment surgeries Additional innovations were made, such as the ascending colon vaginoplasty, the use of scrotal tissue for additional vaginal grafts, and urethral mucosal flaps for providing lubrication.

The first woman who was anatomically changed into a man was born on the 1st May 1915 in London Laura Maud Dillon, daughter of Robert Dillon of Lismullen, County Meath. She was anatomically born a healthy female child. Facial hair and a deep voice confirmed her feelings of being physically and emotionally a man. She took a job as a garage hand, living in loneliness and anguish for four years. A doctor agreed to give her male hormone pills and later she had a mastectomy in 1942, and in 1944 she had her birth certificate amended, changing daughter to son and Laura Maud Dillon to Laurence Michael Dillon. Michael is also believed to be the first woman to have taken the male hormone testosterone in order to look like a man. Within months of starting testosterone, he had grown a beard and was living as a man. It was the dramatic transition in his appearance that finally persuaded his doctor to operate.
In the years since the first "test tube baby" was born in 1978, physicians and scientists from RYT Hospital began working to develop a viable technique for the successful impregnation a Mr. Lee.

In vitro fertilization techniques were used to induce an ectopic pregnancy by implanting an embryo and placenta into the abdominal cavity, just under the peritoneum (the surrounding lining). Once implantation was complete, Mr. Lee stopped taking hormones, because the pregnancy itself, as expected, took over. The embryo secretes sufficient hormones to maintain its own growth and development. The duration of the pregnancy has been surprisingly normal, i.e. fetal heart monitoring, chorionic villus sampling, ultrasound scanning and a constant watch over Mr. Lee's health and his enlarging stomach.

At the time that I am writing this piece, the child hasn’t yet been born. The delivery will require open surgery (Cesarean section) to remove the baby and the placenta. Removal of the placenta is the real danger because it forms such intimate connections with surrounding vessels that massive hemorrhage is likely. Implantation may have also involved other structures in the abdomen, including the bowel and it is possible that parts of other organs may need to be removed. It would be very risky for a man to give birth to a child so it is unlikely it is going to be recommended by the medical profession.

Now I shall go directly to the legal protection given to transsexuals.

In March 2000, the Ontario Human Rights Commission released its “Policy of Discrimination and Harassment because of Gender Identity”. The OHRC reviewed the history of the discrimination faced by transsexuals, and other transgendered individuals, in our society, and said, among other things, that: … There are, arguably, few groups in our society today who are as disadvantaged and disenfranchised as transgenderists and transsexuals. Fear and hatred of transgenderists and transsexuals combined with hostility toward their very existence are fundamental human rights issues.

In discussing issues related to a poisoned work environment, among other environments, the OHRC said: A single instance of harassment because of gender identity may not fall within the definition of harassment under the Code. However, there could be circumstances in which a single incident of inappropriate behaviour may be significant or substantial enough to constitute a breach of the Code by creating a poisoned environment for individuals because of their gender identity. In other words, there could be circumstances in which unequal treatment does not have to occur continually or repeatedly in order for a violation of the Code to occur.

A consequence of creating a poisoned environment is that certain individuals are subjected to terms and conditions of employment, tenancy, services, etc. that are quite different from those experienced by individuals not subjected to these comments or conduct. In such instances, the right to equal treatment may be violated. Demeaning remarks, jokes or innuendo based on gender identity not only poison the environment for transgenderists and transsexuals but affect everyone’s environment.

The conduct at issue must be of such a nature and degree so as to amount to a denial of equality through the creation of a poisoned environment.

The OHRC also addressed issues of confidentiality of personal information within the human rights context and said: Gender Identity is a personal characteristic that may or may not be known to others. While most people are not concerned about others knowing their gender identity, this may not be the case for transsexuals and transgenderists. Despite the protections set out in the Code, individuals who identify or are identified as transsexuals or transgendered face the real possibility of being subjected to overt or subtle discrimination and/or harassment. This can be particularly detrimental in the workplace.

Legal history was made when a transsexual was sent to the female unit of a prison to serve a sentence for embezzlement. Lawyer Alexandra MacRae was sentenced to 15 months at Dundee Sheriff Court. Previously known as Stephen, MacRae is a former Scottish National Party candidate and rugby prop forward. She underwent surgery in 1984, and is the first biological male in Britain to be jailed with women. She was held in Craiginches Prison in Aberdeen which houses mainly men but has a small women’s wing.

In London, England, on July 11, 2002 A British transsexual won his battle in the European Court of Human Rights to be recognized as a woman and be allowed to marry. The man, who is 64 and is respectfully referred to as "she" and "her" in news reports, underwent an operation in 1990 to have his male organs removed and mock-female organs attached in their place, calls himself "Christine" Goodwin. He took his case to the European Court of Human Rights, arguing that English law denies him the "right" to the sexual identity of his choice. Mr. Goodwin also argued that his human rights were infringed because he will be unable to draw a pension until he is 65, even though English law allows "women" to qualify for a pension when they turn 60.

The unanimous judgment from Strasbourg held that Britain's failure to recognize his new identity in law was a breach of his rights to respect for privacy and his right to marry under the European Convention on Human Rights. The UK, Ireland, Andorra and Albania are the only countries in the Council of Europe that do not recognize a sex change as legally valid

A marriage involving a person who had sexual reassignment is valid in the State of Kansas. The State Appeals court overturned a Leavenworth County District Court ruling that declared the September 1998 marriage of Marshall and J'Noel Gardiner invalid because she once was a man. District Judge Gunnar Sundby had ruled that J'Noel Gardiner remained a man, despite the surgery.

"We can no longer be permitted to conclude who is male or who is female by the amount of facial hair one has or the size of one's feet," Appeals Judge Robert Gernon wrote for the panel.

State law in Kansas bans same-sex marriages, but it doesn't address the question of whether transsexuals' unions are legal. The ruling was the first time an appeals court in Kansas had considered the issue.

Later, the Kansas Supreme Court overturned the decision of an intermediate appellate court that had recognized that, for purposes of marriage, a sex-reassignment operation could change one's legal sex. For the Kansas Supreme Court, sex is a function of what you're born with, not what a surgeon creates.

Now I will deal with the concerns that some people will probably have about transsexuals using public washrooms and changing rooms.

It is one thing for a male transsexual to go to a woman’s washroom to use the toilet in a private stall but I see serious concerns with respect to women who, while in a changing room, are suddenly facing a transsexual who still has male genitalia. They might think he is a voyeur who is using the claim of being a transsexual just to look at naked women.

As I see it, once a male transsexual has his male sexual organs removed, I don’t see any reason why he (she) can’t use a woman’s changing room. In fact, it would be a terrible experience for any male transsexual who has his male genitalia removed to go to a men’s changing room to change clothes.

Until that person undergoes sex-reassignment surgery, he (she) should not go into a woman’s changing room but I see no reason why a male transsexual who is on record as waiting for the surgery can’t use either washroom.

When I learn what the decision of the Human Rights Tribunal of Ontario is, I will post it on my blog.

1 comment:

Unknown said...

"The UK, Ireland, Andorra and Albania are the only countries in the Council of Europe that do not recognize a sex change as legally valid".

Your information regarding the UK is out of date. The Gender Recognition Act 2004 provides for transsexuals to change their legal gender, have birth certificates reissued under their new gender and to marry in their assigned gender.

You are correct, however, in asserting that Ireland does not recognise a change of gender.

Christine Martin