Left in Legal Limbo: Transsexual Identity and the Law

• Author: Shauna Labman
• Position: Is a second year co-op law student at the University of Victoria
• Pages: 66-73

1See Farmer v. Brennan

511 U.S. 825 at 837

(1994), where a pre-

operative transsexual

was sent to prison

where he was raped.

2See B. v. A. (1990),

29 R.F.L. (3rd) 258

(Ont. S.C. T.D.)

[hereinafter B. v. A.];

C(L) v. C(C) (1992), 10

O.R. (3d) 254 [1992]

O.J. No.1830

[hereinafter C(L) v.

C(C)] in each case a

woman received both a

mastectomy and

hysterectomy but had

not yet received a

constructed penis.

3See M. v. M.(A.).

(1984), 42 R.F.L. (2d)

55 (P.E.I. S.C.) where a

husband received a

decree of nullity on his

marriage because his

wife determined herself

to be a transsexual and

initiated hormone

treatments after the

marriage had dissolved.

The judge found that

her latent

transsexualism had

prevented her from

being capable of

marriage.

Shauna Labman is a

second year co-op

law student at the

University of Victoria.

She holds a Bachelor

of Arts degree from

the University of

British Columbia with

majors in Honours

English and Religion

&Literature .

Introduction

Can a transsexual male who has begun hormone treatments and

developed female breasts be sent to a male prison? What if he is

raped while imprisoned?1At what point is an individual’s sex

“changed”? With the removal of the original genitalia or with the

construction of the new genitalia?2Can one possess latent transsexual

tendencies?3

Transsexuals pose a dilemma in the law both in their pre-operative

and post-operative states. Even in the terminology of their label, they fail to

belong entirely in either sex and are consequently left in a state of limbo, not

yet accepted as a member of their new sex but no longer truly belonging to

their original sex. Remedying this situation requires far-reaching changes in

social perceptions and understandings. The law has the ability to both

mirror and construct social norms. By reflecting the vision of a transsexual as

an anomaly, requiring special analysis in differing circumstances, the law

perpetuates the social exclusion of these individuals.

The courts and the legislature must acknowledge their powers to

either cement the transsexual’s marginalized standing between either sex or

develop a new process of sexual identification that would remove the

transsexual from the current state of legal limbo. However, simply re-

assigning a sex identity poses its own set of problems regarding how sexual

identity should be seen in the law and begs the question of whether sexual

identity should hold any legal relevance. The purposes of this paper are

three-fold: to explore the various ways in which the courts have attempted to

determine the ‘sex’ of transsexuals and the accompanying difficulties with

these approaches; to present alternative approaches and analyze the

ambiguities that remain; and finally, to suggest a new means of perceiving

sexual identity. This paper emphasizes the significant role of the law in the

and the Law

Transsexual

Identity

Left in Legal Limbo:

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