Transgender and Intersexuality


Which Rights for Transgender Persons?

By the term “transgender” we understand persons who “believe to have been born with the wrong sex”: men dressing up as, and behaving like, women, and vice versa. In other words, the “self-identification” of those persons does not correspond to their biological sex.

It would be wrong to generally dismiss the sincerity of such misguided “self-identifications” or to downplay the psychic suffering that may be associated with them. However, one must ask the question whether the problem is of a physical or of a psychological nature: have those people really “been born in the wrong body”, or do they have a psychological problem? Is it their sex that needs to be changed, or is it their “self-identification”?

Quite obviously, the biological sex of a person is objective and verifiable, whereas “self-identification” will always remain subjective. It would thus seem logical to say that a man who identifies himself as female, or a woman who identifies herself as male, have a grave psychological disorder for which a treatment should be sought.

This, however, is not the approach underpinning the legislation that several countries have adopted in recent years.

Indeed, those countries seem to consider that the “self-identification” of a person should be made to prevail over that person’s biological sex. They provide for legal procedures to “re-assign” a person’s sex: for example, a man who identifies as female may obtain the right (or entitlement?) to dress up as a woman and to use a female first name. He may even, under certain conditions, get the mention of his sex changed in his personal documents, so that from then on he is legally treated as a “woman”, which in principle allows him to marry another man. In most countries, such re-assignment of the “legal sex” requires the man to undergo surgery in which he is sterilized, and his male sexual organs removed (and replaced with something that resembles a female sexual organ); at the same time, he will be treated with hormones in order to provide him with a more “female” appearance. But all this surgery will of course never transform him into a real woman; he remains a man whose physical appearance has been manipulated to resemble that of a woman, and whose procreative faculty has been destroyed. This kind of surgical “treatment” is, in fact, a kind of deliberate self-mutilation.

Some countries, for example Germany, have gone one step further: they allow legal sex re-assignment without any such surgery, solely on the basis of a person’s “self-identification”. This implies that a man, while fully retaining his physical appearance as well as his procreative faculty, can be transformed into a “woman” by a simple judicial or administrative decision, allowing him to “marry” another man. It is then also possible for a child to descend, in the legal sense, of two women, one of them in fact being a transsexual man.

The case-law of the European Court of Human Rights has played an important role in promoting confusion around supposed “transgender rights”, and in pressuring countries to adopt legislation that stands in open contradiction to reality. The most important of those cases is Christine Goodwin v. the United Kingdom, in which the Court found it a violation that national laws prevented transgender persons from marrying a person of the sex opposite to their re-assigned gender. In the decision, the judges wrote that “it is artificial to assert that post-operative transsexuals have not been deprived of the right to marry …. The applicant in this case lives as a woman, is in a relationship with a man and would only wish to marry a man. She has no possibility of doing so. In the Court’s view, she may therefore claim that the very essence of her right to marry has been infringed.” But what precisely is “artificial” here, if it is not the suggestion that a man can be turned into a woman by having his genitalia mutilated? It is, by the way, noteworthy that the Court wrote that the applicant “lives as a woman”, not that he “is a woman”….

In other words, where this kind of legislation is enacted we finally arrive at a situation where there is a complete rupture between the law and the objective reality. The persons requesting such a “sex change” play a comedy, and the law obliges the rest of society to play it with them.

Where “sex” is used as a legal term, it does not correspond any more to a person’s objectively verifiable biological sex, but to its subjective “self-interpretation”. We have crossed a line where subjective desires and sentiments replace objective reality.

The patent absurdity of such approaches is best seen when they are applied to other situations. For example, a man aged 40 might say that subjectively he identifies as 65, and that, for this reason, he should be entitled to a retirement pension. A man without any academic qualification might say that his self-identification is that of a medical doctor, and that he should therefore be allowed to exert that profession. Another man might say that he subjectively identifies as the son of Warren Buffet, and that he should therefore be entitled to inherit Mr. Buffet’s estate. Where subjective “self-identification”, or other wishful thinking, is allowed to prevail over reality, nothing remains impossible.

Given that transgender persons constitute only a very marginal minority in society, the legal provisions that have been adopted specifically to deal with their situation are hardly likely to meet any broader interest. But what is happening here should in fact be a matter of great concern for all and everyone: rather than just accommodating the specific needs of a small target group, these laws erect a novel and unprecedented super-dogma of relativism.

One cannot help wondering whether the issue of transgender persons is not used as a Trojan horse by the advocates of the Gender Ideology, of which the above-mentioned legislation is a perfect expression: sexuality (or, as it is now called: “sexual identity”) is a matter of subjective self-identification, not of a pre-ordained reality. Following this path to its logical end, one should be allowed to change one’s (legal) sex back and forth as often as one might desire, which would finally result in the complete dissolution of the concept of “sex”. Apply this approach to other areas, and the consequence will be the dissolution of the entire legal order.

As we have pointed out before, it is a requirement for a just law that it must correspond to reality. A law that allows men to be legally treated as women, and vice versa, is a perfect example for a law that does not correspond to reality. Where such laws exist, they should be abolished.

It follows that there should be no specific laws on the sex-reassignment for transgender persons. Instead, transgender persons should be entitled to appropriate counselling and treatment to overcome their misguided “self-identification”, and to help them accept their biological sex.

Which Rights for Intersex Persons?

Another minority group that is much spoken of recently are “intersex persons”. Contrary to transgender persons, intersex persons do have a physiological defect: their biological sex cannot be identified. They are neither clearly male nor clearly female, but, due to genetic anomalies, may have biological characteristics of both the male and the female sexes.

Given that a person’s sex is an important part of his/her identity, intersex persons are in a pitiable situation where it is difficult for them to accept their own identity and, hence, to form relationships with other people. One can imagine that they are very often the object of mockery and discrimination.

Society has the obligation to protect these individuals, and to enable them to live a life in dignity. Wherever possible, assistance and counselling should be offered to them, and efforts should be made to find therapies.

However, the hypothesis of providing intersex persons with a right to marriage, or with the possibility of adopting children, seems inappropriate. In order to marry, one must be, and accept to be, a man or a woman.