Gender Reassignment Surgery a Ground for Divorce?
Gender Reassignment Surgery (physical transformation) has given rise to new legal issues, i.e. whether it is a ground of divorce. There is a haze of uncertainty surrounding the legal status of transsexuals. There is no doubt that cases of sex change by surgical and hormonal treatment are bound to increase with the development of surgical techniques all… Read More »
Gender Reassignment Surgery (physical transformation) has given rise to new legal issues, i.e. whether it is a ground of divorce.
There is a haze of uncertainty surrounding the legal status of transsexuals. There is no doubt that cases of sex change by surgical and hormonal treatment are bound to increase with the development of surgical techniques all over the world and with the people’s awareness of such techniques. Courts often find themselves in a dilemma in the absence of clear cut provisions of law whereas some countries have endeavoured to sort out certain issues connected with sex change by the enactment of statutes.
I. Transsexualism
Before understanding the term ‘transsexualism’ we need to understand the difference between sex and gender. The word ‘Sex’ represents physical differentiation as male or female, indicated by the external anatomy of genitalia, the presence or absence of gonads and chromosomal analysis. ‘Gender’ denotes the psychological recognition of self, its sexual inclination towards the desired gender and wish to be considered by others, as fitting into one of the social categories such as boy/man or girl/woman.
In short, sex is what one is seen as (external appearance as male/ female) and gender being the identity is what one feels (playing the role of and living the life of male/ female). The feeling of an incongruency between one’s sex and gender is termed gender dysphoria. Transsexualism is the most extreme form of this disorder. These individuals feel themselves to be trapped in the wrong body (transsexual phenomenon) [1].
The word “transsexualism” has been coined by an American physician, Harry Benjamin. A transsexual is a person who belongs to particular sex anatomically but is psychologically obsessed with a desire to change to the other sex which, according to him, is his rightful gender. [2]
A transsexual differs from a transvestite and a hermaphrodite. The former merely has a desire for, and is gratified by, dressing up in women’s clothes. He has no urge to physically change his sex. The latter is a person whose gender identity is not clear. He has traits of both the sexes and his problem is one of bringing his body by surgical alteration into harmony with his true sex, i.e., the one which predominates in his anatomy. The transsexual, on the other hand, is a person whose biological sexual development is normal, but who strongly believes that he or she is a member of the opposite sex. [3]
II. Gender Reassignment Surgery
Gender reassignment surgery sometimes called sex reassignment surgery is a surgical procedure (or procedures) by which a transgender person’s physical appearance and function of their existing sexual characteristics are altered to resemble those socially associated with their identified gender.[4] It is performed to transition individuals with gender dysphoria to their desired gender. People with gender dysphoria often feel that they were born in the wrong gender. A biological male may identify more like a female and vice versa.[5]
The sex-change operation is the removal and construction of external general organs. For male, to female surgery, the external male organs are removed and artificial female organs constructed by plastic surgery and vice versa in female to male surgery .the process is supplemented by a hormonal treatment which brings about a change in secondary sexual characteristics also. The person undergoing operation though capable of performing sex becomes sterile.
III. Legal Status of Gender After Sex Change Surgery in India
In its historic decision to give ‘third gender’ status to eunuchs, the supreme court, in National Legal Services Authority v. Union of India[6] ruled that government cannot deprive a person his/her legal right to acquire preferred gender through a sex change operation.
The court said, “ if a person has changed his / her in tune with his /her gender characteristics and perception, which has become possible because of the advancements in the medical science, and when that is permitted in medical ethics with no legal embargo, we do not find any impediment, legal or otherwise, in giving due recognition to the gender identity based on the reassign sex after undergoing SRS”
IV. Divorce for Physical Transformation
There is no direct ground for physical transformation as a ground of divorce but we understand it under two circumstances,
A. Pre-Marital Sex Change
An individual may undergo sex-change surgery either before marriage or after the marriage and in both situations controversy is likely to arise.
On pre-marital change of sex, the most publicised case in Corbett v. Corbett[7] an English case. This related to the validity of a marriage. The wife, a respondent in the case, was born, registered and brought up as a boy under the name of George Jamieson. In 1960, at the age of 25, the respondent underwent a sex change surgery and called ‘”herself” as of April Ashley.
Six months later she met the petitioner, a married man having children. Soon after the marriage, the parties sought annulment of the marriage on the ground of incapacity and wilful refusal to consummate the same. The husband further alleged that the marriage was between two males and was therefore void.
Counsel for the wife contended that the wife should be regarded for all purposes as a woman since the law recognizes only two sexes—male and female, and in this case, it could only be the female sex. He further submitted that assignment of an individual to one sex was a matter for the individual and the individual’s doctor, and the law ought to accept it as determining the individual’s sex.
Further, it was illogical to treat the respondent as a woman for some social purposes such as national insurance and her being nursed in a female ward in the hospital and yet not to regard her as a woman for the purpose of marriage. The court, however, rejected all these contentions.
In its view, the validity of the marriage depended on the respondent being a woman. As all medical witnesses agreed that the biological sex 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 operation cannot change the respondent’s true sex, which undoubtedly was male at the time of birth. The court granted the petitioner’s application for a declaration that the marriage was null and void being a marriage between two biological males
B. Post Marital Sex Change
Equally complicated problems arise where a transsexual undergoes sex-change surgery after marriage. Suppose a husband changes his sex after marriage, what would be its effect on marriage? It is submitted that such a change should not, by itself, affect the continued validity of the marriage. But if by reason of such a change, the parties cannot live happily together, leading to the breakdown of the marriage, divorce may be allowed- In an unreported English decision of 1958, a woman petitioned for divorce on the ground of cruelty. She had been married to her husband for eight years and also had a child with him.
The husband had, however, resorted, under medical advice, to treatment for changing his sex, and the wife contended that the husband’s conduct, as a result of which her health suffered, amounted to cruelty. The petition was dismissed on the ground that no cruelty in law was established. It is, however, submitted that divorce should have been granted on the ground of breakdown of marriage in this case since the relationship between the parties could no longer have continued to be harmonious in the circumstances. [8]
V. Conclusion
There is a haze of uncertainty surrounding the legal status of transsexuals. There is no doubt that cases of sex change by surgical and hormonal treatment are bound to increase with the development of surgical techniques all over the world and with the people’s awareness of such techniques. Courts often find themselves in a dilemma in the absence of clear cut provisions of law whereas some countries have endeavoured to sort out certain issues connected with sex change by the enactment of statutes.
The consequences of sex change on marital life should be made clear. Where the change had been undergone before marriage, without concealment or misrepresentation of the material fact, the marriage should be regarded as valid. In other words, pre-marriage conversion of one party with knowledge of the same to the other, should not be made a scapegoat for moving out of a marriage.
When the conversion is resorted to after the marriage and that leads to problems, divorce should be made available on the ground of breakdown of the marriage.
- Richa Gupta, Sangeeta Sahu, Ankush Gupta, Tarun Singh – Transsexualism and sex reassignment surgery – Arising medicolegal issues, Available Here
- Kusum, “Legal implications of sex-change surgery”, vol. 25, Journal of Indian law institute pp 73-89 (1983). Available Here
- Ibid
- Sex reassignment surgery (SRS), Available Here
- What is gender reassignment surgery?, Available Here
- AIR 2014 SC 1863
- [1970] 2 AUE. R .33
- Dolling v. Dolling (1958) (unreported). Original petition reported in The Times (23 May 1958) and appeal proceedings reported in The Daily Telegraph (14 November 1958). Available Here
Other websites :
- Dhananjay Mahapatra, SC gives legal status to gender after sex-change surgery, Available Here
- Rohit U. Erande, Sex change operation and its legal consequences, Available Here