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RESPECT AND EQUALITY transsexual and transgender rights RESPECT AND EQUALITY transsexual and transgender rights Stephen Whittle First published in Great Britain 2002 by Cavendish Publishing Limited, The Glass House, Wharton Street, London WC1X 9PX, United Kingdom Telephone: + 44 (0)20 7278 8000 Facsimile: + 44 (0)20 7278 8080 Email: [email protected] Website: www.cavendishpublishing.com Published in the United States by Cavendish Publishing c/o International Specialized Book Services, 5804 NE Hassalo Street, Portland, Oregon 97213-3644, USA Published in Australia by Cavendish Publishing (Australia) Pty Ltd 3/303 Barrenjoey Road, Newport, NSW 2106, Australia © Whittle, Stephen 2002 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, scanning or otherwise, without the prior permission in writing of Cavendish Publishing Limited, or as expressly permitted by law, or under the terms agreed with the appropriate reprographics rights organisation. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Cavendish Publishing Limited, at the address above. You must not circulate this book in any other binding or cover and you must impose the same condition on any acquirer. British Library Cataloguing in Publication Data Data available Library of Congress Cataloguing in Publication Data Data available ISBN 1-85941-743-4 1 3 5 7 9 10 8 6 4 2 Printed and bound in Great Britain ACKNOWLEDGMENTS I wish to thank all those people who have read and commented on different parts of this book at different times. Catherine Little (Manchester Metropolitan University), who co-wrote the chapter on police employment and who over the years has read many parts of this book, was critical but always constructive, improving my writing skills immensely. Catherine Downs, who co-wrote the chapter on the treatment of adolescents with gender dysphoria. Paula Stephens, who co-wrote the chapters on police employment and imprisonment. Also Siobhan Leonard, who helped considerably with the chapter on Europe. Shannon Minter, Paisley Currah and Jennifer Levi, that indomitable trio of trans lawyers, are deserving of a good thrashing for their cheek and very late calls for advice on briefs – they really have made me realise what good fun it is, despite the hard work. I must not forget Phyllis Frye, who first ensured that I was not alone in seeking justice for people like us. There are all those who have fought alongside me at the barricades: my fellow vice-presidents in Press For Change, Christine Burns, Claire McNab, Susan Marshall, Sarah Rutherford, Mark Rees and Alex Whinnom, without whom none of this would have been remotely possible. Also the many ground troops, trans people who have marched, lobbied, been the volunteers for the many cases we have pursued, and of course those who did not volunteer, but who because of what happened to them found themselves, reluctantly at first, but enthusiastically in the end, pursuing justice through the legal system. It is a great pleasure to see so many of them continuing this work in their own locales, having gained real expertise and abilities through the work we have done together. There are also a few academics who have shown faith; I say a few because indeed only a minority recognised that this was not just of importance to a few ‘misguided poor souls’ but challenged the very core of that legal construct: gender. They have provided support in many different ways, and include Steve Redhead, Katherine O’Donovan, Robert Wintemute, Leslie Moran and Julie Greenberg. Finally, Sarah – you have provided everything whilst I did this. You recognised who I was and you have given me a life, a family, a career and your enduring love. Thank you. This is not a conventional love token, but it is given with my love to you, Eleanor, Gabriel, Lizzie and Pippa. Stephen Whittle August 2002 v CONTENTS Acknowledgments v Table of Cases ix Table of UK Legislation xiii Table of European Legislation xv Table of International Legislation xvii Introduction xix 1 Disembodied law: trans people’s legal (outer)space 1 2 Legal madness: transsexualism 19 3 Transsexual denial: socially constructing the legal body 41 4 Still gender fucking or still fucking gender? 61 5 The trans-cyberian mail way 81 6 Institutionalised employment discrimination and transsexual people 99 7 Sex and marriage: go together like a …? 131 8 Gemeinschaftsfremden – or how to be shafted by your friends: sterilisation requirements and legal status recognition for the transsexual 161 9 Seeking a gendered adolescence: liability and ethics surrounding adolescents with gender dysphoria 173 10 European transgender rights: new identity politics for a new age 187 11 The praxis and politics of policing: problems facing trans people 203 12 Prison provision for trans people 217 13 ‘Gender identity’: proposed additional Protocol broadening Article 14 of the European Convention; the need for express inclusion 239 vii respect and equality: transsexual and transgender rights 14 Surgical requirements for legal recognition: why a vaginectomy should not be demanded of a transsexual man 247 15 Transsexual people in the military 251 16 A temporary asylum appeal for a transsexual prisoner 271 Bibliography 279 Index 293 viii TABLE OF CASES A v Chief Constable of West Yorkshire Police, Case No 1802020/98 (1999) . .121, 123, 152, 203, 211, 214 Ashton v Chief Constable of West Mercia Police, Case No 2901131/98 (1999) IT . .203 Attorney General v Family Court at Otahuhu [1995] NZ Fam LR 57 . .136 B v A 2 RFL (3d) 258 (1990) . .11, 14, 168 B v France, Case No 92/40 (1992) ECHR, Series A, No 57 . .10, 188, 189, 240 Bavin v NHS Trust Pensions Agency [1999] ICR 1192, EAT, referred to the ECJ by CA (England and Wales), 4 Oct 2000; registered as Case C-117/01, KB v National Health Service Pension Agency . .143, 144, 152 Belgian Linguistic Case, Case No 68/1 (1979–80) 1 EHRR 241 . .244 Bellinger v Bellinger [2001] EWCA Civ 1140; [2001] 1 FLR 389 . .137, 151, 152 Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 . .182 Buck v Bell 247 US 200 (1927) . .163, 164 C and D (Aus) [1979] FLC 90-636 . .10 C(L) v C(C) [1992] Lexis 1518, Ont CJ . .11, 14, 168 Chatterton v Gerson [1981] 1 All ER 257 . .179 Chessington World of Adventures v Reed [1997] IRLR 556, EAT . .109, 110, 119, 144 Clarke v United States, No 443-80C (1980), US Court of Claims . .263 Corbett v Corbett [1970] 2 All ER 33 . .8–11, 14, 43, 134–40, 152, 154, 156, 158, 166, 168 Cossey v UK, Case 90/20 (1991) 13 EHRR 622, ECHR, www.echr.coe.int . .86, 149–51, 189–92 D (A Minor) (Wardship Sterilisation), Re [1976] 1 All ER 326 . .170 Dekker v Stichting Vormingscentrum voor Jong Volwassen Plus [1991] IRLR 27 . .114, 115, 127 Doe v Alexander 510 F Supp 900 (1981) . .257 F (Mental Patient: Sterilisation), Re [1990] 2 AC 1 . .166 Fitzpatrick v Sterling Housing Association [1999] 4 All ER 705 . .148 Francovich v Italian State, Case C-6/90 and 9/90 [1992] IRLR 84 . .119, 128 Franklin v Franklin (1990) The Scotsman, 9 November . .9 ix respect and equality: transsexual and transgender rights Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 . .179, 180, 184, 185 Goodwin, Christine v UK Government, Application No 28957/95 (1995) ECHR; I v UK Government, Application No 25608/94 (1994) ECHR . .99, 152–56, 188, 198 Grant v South-West Trains, Case C-249/96 [1998] ECR I-621, ECJ . .142–44 Griswold v Connecticut 381 US 479 (1965) . .135, 149 Handels-og Kontorfunktionaerernes Forbund i Danmark (acting for Hertz) v Dansk Arbejdsgiverforening (acting for Aldi marked K/S) [1991] IRLR 31 . .115 Horsham v UK Government, Application No 23390/94 (1994) ECHR . .14 Hyde v Hyde (1866) LR 1 P & D 130 . .8, 132, 133 I v UK Government, Application No 25608/94 (1994) ECHR . .99, 152–56, 188, 198 J, Re [1992] 4 All ER 614; [1992] 2 FLR 165 . .180 Jane Doe v Boeing Co 823 P 2d 1159 (1992), Wn Ct App . .106 John Forbes-Semphill v The Hon Ewan Forbes-Semphill (1967) unreported, Scottish Court of Administration . .135 Johnston v Chief Constable of the RUC, Case 222/84 [1987] ECR 1651, ECJ . .123 Kaur v Singh [1981] Family Law 152 . .132 Kevin (Validity of Marriage of Transsexual), Re [2001] Fam 1074, CA, www.familycourt.gov.au/judge/2001/html/rekevin_text.html . .11, 136, 154 Kirkpatrick v Seligman & Latz Inc MD Fl 636 F 2d 1047 (1979) . .105, 257 Kroon and Others v The Netherlands (1994) ECHR, Series C, No 297 . .190 Leyland v Orr et al 44 FEP 1636 (1987); 828 F 2d 584 . .257 Littleton v Prange 9 SW 3d 223 (1999) Texas Court of Appeals, 4 District, www.4coa.courts.state.tx.us/opinions/9900010.htm . .9, 134, 137 Lustig-Prean and Beckett v UK; Smith and Grady v UK (1999) 31 EHRR 23, ECHR, www.echr.coe.int . .251 M v Chief Constable of West Midlands Police, Case No 08964/96 (1996) IT . .14, 119, 203, 204 MT v JT 150 NJ Super 77 (1977); 355 A 2d 204 . .11, 136 x table of cases Malone v RAF (1996) High Ct . .251 Marleasing SA v La Commercial Internacional de Alimentacion SA, Case C-106/89 [1990] ECR I-4135, ECJ . .110 Marshall v Dame Barbara Mills and the Crown Prosecution Service (1998) IT . .111, 251 Marshall v Southampton and SW Hants Area Health Authority, Case 152/84 [1986] IRLR 140 .
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