Legal gender

Legal gender, or legal sex, is a sex or gender that is recognized under the law. Biological sex, sex reassignment and gender identity are used to determine legal gender. The details vary by jurisdiction. Legal gender identity is fundamental to many legal rights and obligations, including access to healthcare, work, and family relationships, as well as issues of personal identification and documentation. The complexities involved in determining legal gender, despite the seeming simplicity of the underlying principles, highlight the dynamic interaction between biological characteristics, self-identified gender identity, societal norms, and changing legal standards. Because of this, the study of legal gender is a complex field that is influenced by cultural, historical, and legal factors. As such, a thorough investigation is necessary to fully understand the subject's implications and breadth within a range of legal systems and societies.

Countries recognising gender self-identification for legal gender; sub-national entities are not marked

World map of non-binary gender recognition

History

In European societies, Roman law, post-classical canon law, and later common law, referred to a person's sex as male, female or hermaphrodite, with legal rights as male or female depending on the characteristics that appeared most dominant. Under Roman law, a hermaphrodite had to be classed as either male or female.^[1] The 12th-century Decretum Gratiani states that "Whether an hermaphrodite may witness a testament, depends on which sex prevails".^[2][3][4] The foundation of common law, the 16th Century Institutes of the Lawes of England, described how a hermaphrodite could inherit "either as male or female, according to that kind of sexe which doth prevaile."^[5][6] Legal cases where legal sex was placed in doubt have been described over the centuries.

Iran is a good example of a country where traditions and culture have long been proven to clash heavily with legal gender. In the 1980s, a fatwah issued by Ayatollah Khomeini allowed trans people to undergo sex-reassignment surgery (SRS) and legally change their gender, showing a progressive legal stance toward transgender rights. Despite legal provisions, deeply ingrained traditional ideas about gender and family in Iran have led to persistent anti-trans discrimination, exemplified by Phoenix's experience of rejection and violence despite legal rights.

In 1930, Lili Elbe received sexual reassignment surgery and an ovary transplant and changed her legal gender as female. In 1931, Dora Richter received removal of the penis and vaginoplasty. A few weeks after Lili Elbe had her final surgery including uterus transplant and vaginoplasty. Immune rejection from transplanted uterus caused her death. In May 1933, the Institute for Sexual Research was attacked by Nazis, losing any surviving records about Richter.

Toni Ebel and her partner Charlotte Charlaque, who were both other German sexual reassignment surgery recipients, were forced to separate in 1942 after harassment from their neighbors.^[7]

After World War II, transgender issues received public attention again. Legislation in the 1950s and 60s primarily focused on criminalizing homosexuality and enforcing heteronormative gender roles, leading to disproportionate police harassment and arrests of gender non-conforming individuals. Christine Jorgensen was unable to marry a man because her birth certificate listed her as male. Some transgender people changed their birth certificates, but the validity of these documents were challenged. In the United Kingdom, Sir Ewan Forbes' case recognized the process of legal gender change. However. legal gender change was not recognized in Corbett v Corbett.The 1969 Stonewall Uprising marked a pivotal moment in the gay rights movement, sparking protests and marches globally and underscoring ongoing discrimination and violence against LGBT individuals.

The history of legal gender in Asia is a complex narrative shaped by cultural traditions, colonial legacies, and modern legal reforms. Colonial powers frequently enforced binary gender classifications similar to their own legal systems, reinforcing the traditional gender roles that are deeply ingrained in many Asian societies. But as Asian nations modernized, perceptions of gender and sexuality started to change, which prompted legislative changes that addressed LGBTQ+ and gender equality. While legal recognition of third genders and non-binary identities varies, these identities have long been acknowledged in some Asian cultures. Legal recognition for transgender people has advanced in recent decades, thanks to initiatives like anti-discrimination legislation and modifications to gender markers on official documentation. Notwithstanding progress, issues like prejudice and social stigma endure, underscoring the continuous struggle for LGBTQ+ rights across the region. Advocacy and activism are essential in promoting legal changes and subverting gender and sexuality norms in society. The fact that different nations are at different stages of recognizing and protecting gender minorities, however, means that there is still a long way to go before full equality and acceptance are achieved.

Today, many jurisdictions allow transgender individuals to change their legal gender, but some jurisdictions require sterilization, childlessness or an unmarried status for legal gender change.^[8] In some cases, gender-affirming surgery is a requirement for legal recognition.^[9]

Present views

Across Asia, trans individuals still face violence, discrimination, and exclusion from society despite some countries taking legislative steps toward protection. Legal gender recognition is seen as crucial for combating systemic discrimination and promoting equality under the law. However, the lack of clear procedures and social acceptance poses challenges for trans people in many Asian countries. For example, while Thailand has become a hub for sex-reassignment surgery (SRS) with a booming medical tourism industry, legal loopholes and risks associated with the procedure highlight the complexities of gender-affirming care.

There is considerable progress being made in Asia as well though, with Hong Kong's court ruling against requiring "full sex reassignment surgery" for gender change and Japan's passing of its first law addressing discrimination based on sexuality and gender identity in 2023. India, Pakistan, and Nepal allow individuals to legally change their gender solely based on self-identification, without medical interventions or judicial processes.

Still, concerns remain about the effectiveness of these laws in combating discrimination and promoting genuine acceptance, as seen in Japan's new law containing caveats that could potentially undermine trans rights and reinforce societal biases.

Legal gender recognition in the US varies from state to state and jurisdiction to state. While some states make it relatively easy for people to change their gender markers on identification documents, others have more restrictive laws. Nowadays, most states allow people to change their gender marker on state identification cards and driver's licenses through administrative procedures; a letter from a healthcare provider verifying gender transition is frequently all that is needed.

Transgender people seeking legal recognition of their gender identity, however, face obstacles because some states still require documentation of gender-affirming surgery or court orders for gender marker modifications. Furthermore, in order to modify a person's gender marker, a court order or a medical certification are typically needed for federal identity documents like Social Security records and passports.

While there has been progress in recent years toward more inclusive policies, disparities in legal gender recognition persist, impacting transgender individuals' access to essential services and rights. Advocates continue to push for reforms to ensure that transgender people can obtain accurate legal documents that affirm their gender identity without unnecessary burdens or discrimination.

See also

• Same-sex marriage
• Same-sex marriage#Transgender and intersex people
• Sex
• Gender identity
• Gender Recognition Act (Norway)
• Gender Recognition Panel
• Legal status of transgender people
• Sex assignment
• Gender-affirming surgery
• LGBT rights by country or territory

References

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‌13. O’Connor, A. M., Seunik, M., Radi, B., Matthyse, L., Gable, L., Huffstetler, H. E., & Meier, B. M. (2022). Transcending the Gender Binary under International Law: Advancing Health-Related Human Rights for Trans* Populations. Journal of Law, Medicine & Ethics, 50(3), 409–424. https://doi.org/10.1017/jme.2022.84

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