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ISSN 1434-4599

Harry Benjamin, M.D.

Legal Aspects in Transvestism and Transsexualism next

Criminality before the law is not necessarily criminality before science and common sense. Transvestism, transexualism, homosexual behavior, drug addiction, alcoholism, and prostitution are examples. They are problems of health, behavior, and character. They call for treatment and education instead of punishment. Their interpretation as "crimes" creates criminals artificially merely by definition. This holds true particularly of transvestism, which is as much an abnormality of behavior as it is a sexual deviation.

Please read this introduction once more

A contact between the law and the transvestite-transsexual phenomenon exists principally in three separate areas. (1) The male transvestite's desire to "dress" and appear in public in female attire. (2) The performance of the conversion operation, which primarily concerns the surgeon; and (3) the legal change of the sex status of an operated upon or (more rarely) a nonoperated upon transsexual person who lives as a member of the opposite sex.

The transvestite's "dressing"

For all practical purposes, "dressing" concerns only the man who puts on female clothes. The female transvestite hardly ever gets into trouble with the law.

There is actually no law anywhere that expressly forbids a man to dress as a woman; but the New York State Code of Criminal Procedure, Section 887, Subdivision 7, is being used against transvestites, and other states have similar statutes. This law says that a person (designated as a "vagrant") must not appear with "a face painted, discolored, or covered or concealed or being otherwise disguised in a manner calculated to prevent his being identified." This applies to persons "on a road or public highway, or in a field, lot, wood or enclosure."

This law had been passed more than one hundred years ago for an entirely different purpose. It was directed against farmers who disguised themselves as Indians and sometimes attacked law officers when they tried to enforce an unpopular rent law.

Under this catch-all "vagrancy" statute, transvestites have been arrested repeatedly when recognized while venturing outside their homes and many have been convicted, fined, and jailed. Theoretically they also could be arrested in their homes for "dressing," because the law refers to an "enclosure." So far, however, that has not happened, to the best of my knowledge.

Three cases

A middle-aged man, an airline pilot for many years, of high standing in the community, a recent widower and a father, whom I knew well and for whom I have the highest regard, was arrested last year in the street near his home, wearing a wig, female clothing, and so on. This man had been a transvestite for many years with the full knowledge of his wife, who understood and protected him while she lived. Now he lived alone and indulged only rarely in his hobby.

Looking rather masculine, he knew he was taking a chance going out "dressed," but the urge at times was too irresistible. And so on this occasion he ventured out and near his home was recognized by a police officer who later appeared as the only witness against him at the trial. There was no testimony that the defendant was engaged in any immoral or criminal activity beyond his being in female attire.

The defendant's attorney pointed out that Section 887-7 was unconstitutional as in violation of the "due process of law" provisions of the 14th Amendment of the Constitution. The Court ignored this as well as favorable testimony as to character and the like, ruled the defendent guilty and sentenced him to two days in the workhouse. Then the court suspended sentence. Maybe the judge felt that the letter of the law conflicted with plain common sense and in this way tried to help the defendant.

However, the damage was done. His employers learned of his conviction and he was suspended from all his duties. Amusingly, right after his arrest, one of his superiors in the airline phoned me to ask my opinion about the man's sanity. After I assured him that he was perfectly sound mentally, the superior asked me: "Would you let your wife fly with him?" (He had been a pilot for this airline for over twenty years). "Of course I would," I replied, "and I would fly with him myself with fullest confidence, his transvestism has nothing to do with his competence."

But this and other testimony did no good. The arrest and conviction could not be undone. The man lost his job. And this, a year before he would have been eligible for pension. This case was appealed but came to an end when the U.S. Supreme Court refused to review.

Another patient of mine had a different kind of experience. He was a transsexual, overanxious, as many are, to be operated upon without being fully ready yet to change to a believable woman. "She" could still be "read" (recognized) rather easily.

Back from abroad after the conversion operation, and no longer a male anatomically, she felt safe and confident in her new role as a female. Two detectives thought otherwise and arrested her for "impersonating." Her plea that she was a woman brought forth only an "Oh yeah! Let's see." She was taken to the police station and there examined by a matron who told the detectives that they had made a mistake. The suspect was a woman. But, contrary to the case previously described, [1] when the arresting officer tried to make good his error with a dinner invitation, these two detectives thought of another way out of their predicament (false arrest). They changed the charge from "impersonating" to "soliciting." The girl had to stand trial as a suspected prostitute. A wise judge, however, recognized the charge for what it was and promptly dismissed the case.

How I tried to protect transvestites and especially the more vulnerable transsexuals from arrest by letting them carry a certificate of explanation and the consequent failure of my effort is related in Chapter 4.

A strict and pedantic and somewhat automatic adherence to the letter of the law is often nothing but an exercise in the abolition of common sense. We can be consoled, however, by an occasional exception through the courageous act on the part of some highly placed official or judge. Here is an example:

E, a transvestite who for years had lived as a woman and whom I knew through frequent contacts to be a respected and responsible person, wanted to travel in Europe as a woman although the birth certificate and the given name were that of a man. I wrote the Passport Bureau, State Department, Washington, presenting fully all the facts in support of E's application for a passport to be issued in her female name and identity. Without comment, E's request was granted and she received the desired passport. Someone in the respective department was big enough to override technicalities and, in this instance, common sense won out over possible "rules and regulations."

If this official, he or she, should happen to read these lines, I want to salute this rare bit of courage and wisdom.

A remedy?

Incidents of arrests and convictions of transvestites for "impersonating," often with prison sentences, take place daily in this country. When acquittal or probation takes the place of imprisonment, it is not always due to clemency on the part of the court. It is sometimes because the defendant is such a feminine-looking individual (and perhaps possessing no male clothes) that no one knows whether he belongs in the male or the female section of the jail. To let him go is then the simplest way out of a predicament. But I know of incidents too when, with rather medieval brutality, "masculinization" with forcible haircuts and prison clothes fitted the TV or TS into the section for men, naturally exposing him to ridicule or sexual abuses by the inmates.

All this can be avoided and is being avoided, for instance, in Hamburg, Germany, where an enlightened administration found way to help transvestites and serve justicia at the same time. Based on a physician's certificate, the Hamburg police department issues a card to the transvestites, not giving them permission to "dress," but merely stating that this person is known to the department as a transvestite. That is all, but it is enough to absolve the particular person from any suspicion of "criminal intent" in "dressing" and therefore from arrest.

More than thirty years ago, I wrote to the then New York Police Commissioner, Edward P. Mulrooney, in the interest of a transvestite patient of mine, suggesting the method described above and at that time in use in Berlin. A polite but negative answer came, pointing out that the law would have to be changed.

Two German psychologists, in a recent article for a medical journal, [2] suggested and certified by citing cases that wherever a greater permissiveness of society and the law allowed first-name changes and the wearing of female attire, the transvestite's peace of mind was promoted and thus his ability to work and maintain himself better economically and psychologically, to the benefit of the community. Incidentally, such a method could, in some cases, forestall the request for a conversion operation, as previously explained (see page 114 [ Chapter 7] regarding the "legal motive" for the operation).

Here it may be appropriate to repeat the advice that Turnabout, a magazine for transvestites, gave in its fourth issue, Volme I, 1964: "How to Keep an Arrest from Becoming a Disaster."

DO ADMIT your male status, if you are questioned in a public place by an officer of the law.

DO CHECK the identification of the officer, especially if he happens to be a plainclothesman.

DO OFFER your male name and address only, if you are asked to do so by a bona fide policeman.

DO SHOW the officer your own legal masculine identification when it is requested from you.

DO FOLLOW the officer peacefully to the police station if he decides to take you there.

DO INSIST upon contacting an attorney or public defender as soon as you arrive at the station.

DO REQUEST postponement of your court appearance if your attorney is not in the courtroom.

DON'T ATTEMPT to flee or evade arrest if a police officer challenges you.

DON'T TRY to bargain with the arresting officer or with any other officer.

DON'T GIVE any statement whatever, whether it is a written one or an oral one.

DON'T ANSWER any questions with regard to the subject of homosexuality.

DON'T GIVE any information as to your job or the identity of your employer.

DON'T ADMIT or DENY the charge which the arresting officer places against you.

DON'T DISCUSS your case with another prisoner or anyone else before trial.

I sometimes wonder if the Chevalier d'Eon ever had trouble like that and needed such advice.

An ancient law threatens surgeons

Older than the law used against transvestites is the one that could be used to forbid the performance of a conversion operation. It is the so-called "mayhem statute" that goes back to the days of Henry VIII, and as the New York attorney R. V. Sherwin [3] says, "has no connection with anything remotely related to the subject under discussion."

England had many wars in those years and soldiers too often tried to evade military service by mutilating themselves, or would have someone do it for them, by amputating fingers, toes, even a hand or a foot. The king therefore had a law enacted that forbade depriving a soldier of any part of his body necessary for his defense and making him less able to fight. To visualize the male genitalia in this category is difficult; yet this old English law, having with many others been embodied and still existing in our present American penal code, could be used to prosecute a surgeon - at least theoretically. I know of a surgeon who refused to operate after being warned by a district attorney. I too have received a letter from another district attorney's office with the same warning after I had asked for the respective information. While no case of an actual prosecution under this law has come to my attention, it has undoubtedly served to intimidate doctors who otherwise might have been willing to operate upon an occasional transssexual patient. Whether fear of actual legal complications, or fear of blackmail, or fear of being criticized predominated, is a matter for conjecture. Eventually a Supreme Court decision may be required to ban the specter of the mayhem statute for surgeons and allow them to act in accordance with science and their own consciences.

Legal reforms notoriously take place at a snail-like pace. J.W. Ehrlich, famed San Francisco attorney, said in his recent book, Reasonable Doubt: "... if medicine had remained as backward as the law, the chief remedial aid of today's doctor would still be bloodletting."

But there is another point that should not be forgotten. Many of the objections against a sex conversion are rooted in religion, as are most sex laws and legislation of morals. One may ask whether such legislation is justified in a society in which church and state are supposed to be separated.

In "Sex vs. the Law, a Study in Hypocrisy," [4] Harriet F. Pilpel, a noted New York attorney, has this to say about our sex laws: "They can only be enforced by snooping, informing, and entrapment. They make 'sins' into 'crimes', in short, they are completely at variance with the realities, and even with ethics, of our lives today."

The legal change of sex status

When the transsexual has been operated on or sometimes even before any operation, when he or she has decided to live and work as a member of the opposite sex, the change of the sex status in a legal manner is urgently requested. It often takes the form of asking for a new or a change or amendment of the birth certificate. As Robert V. Sherwin, author of Sex and the Statutory Law [5] and attorney for the Society for the Scientific Study of Sex rightly pointed out, a birth certificate cannot be changed because it is just that: a certification of a birth. Only its annotation that the birth was that of a male or a female baby (with its name) could possibly be corrected. But only "possibly." "Rules and regulations" may prevent tampering with a "biological document." (How "biological" is a moot question.) [6] I have found doctors with extremely pedantic, bureaucratic minds, occasionally in a political post, expressing their opinions with such arrogant self-assurance that little could be done for their unfortunate victims.

In practice, and in the United States, much depends upon the state in which the applicant for a legal change of sex status bad been born. In some states, it proved to be easy and merely required filling out some form and sending it to the respective Bureau of Vital Statistics, with a doctor's certificate. I have repeatedly used the following statement:

To whom it may concern:

This is to certify that John Doe, now known as Jane Doe, is under my professional care and observation and has been for the past ___ (number of years).

Jane belongs to the rather rare group of transsexuals, also referred to in the medical literature as psychic hermaphrodites.

In ___, 19___, Jane underwent corrective surgery and (number of months) later, I examined her and found that she is no longer able to function as a male, either procreatively or sexually, but that she is able to function as a female - that is to say, she can have marital sex relations.

A legal status as a male would not be consistent with the present facts, and Jane must now be considered of the female gender. I do believe that an unrecognized constitutional factor existed at birth which was responsible for the later development of transsexualism (a condition inaccessible to psychotherapy).

Some few states promptly issued a new birth certificate with the name and gender changed accordingly. In other states, a more complicated procedure was required, namely, a court order. Sometimes that took so much time and money that the applicant gave up and continued to live in his or her "new sex" illegally, hoping that there might never be the need for a birth certificate, for instance, for the purpose of getting married. (A trip to Nevada could then be a way out of it.) Again, in other states, the request was such a novel and unprecedented one that delaying tactics were resorted to or the application was denied, unless proof could be rendered that the original certificate had been issued in error. Such is, of course, not possible in transsexualism (at least not yet), only in clear cases of hermaphroditism. (See Appendix.)

I know of one wise official who issued a new birth certificate if a physician could furnish some laboratory proof indicating abnormal values in the male-female balance (low 17-ketosteroids, for instance). He helped a few operated-upon transsexuals in this way in their new life pattern until, alas, bureaucracy, ignorance, or a combination of these caught up with him and forced him to ignore or reject applications for a legal sex change.

Such a sex change does constitute a problem for a conscientious administrator, for instance, a Health Department official. It has legal as well as medical implications and lawyers as well as doctors may disagree. Could an amendment at a later date disturb statistical data? Would it be legal? Could easy access to a new birth certificate induce some patients to seek the operation who otherwise may have been satisfied to continue in their status quo? (I feel this last question can safely be answered in the negative.)

One thing seems certain. While great conservatism should prevail in advising, consenting to, and performing a conversion operation, all possible help should be given those who present a fait accompli by having undergone the irrevocable step of surgery. It seems to me to be the duty not only of physicians, but also of the community, to pave the way as much as possible for such persons so that they can succeed in their new pattern of life as members of the opposite sex.

Please read the last paragraph again

Would it be possible to empower health departments to issue a "certificate of sex status" based on examinations by one of their accredited physicians? This would leave the birth certificate untouched and at the same time would possibly satisfy the needs of the operated-upon transsexual (see Appendix A, page 165).

In any event, the male transsexual may find no easy road to travel if he wants to be the same law-abiding citizen after the operation that he has been before.

And so, the transsexual's plight exists in the legal field as it does in the medical. That may be partly because there is actually no legal definition of "male" and "female." Such a definition hardly seems necessary since everyone knows the answer, or thinks be does. But we have seen in the preceding pages and especially in the introductory chapter that the still young science of genetics is already confusing the issue. I asked a well-informed and prominent San Francisco attorney, Mr. Kenneth Zwerin, how the law defines the two sexes and his answer is so clear and striking that it is worth recording here:

Mr. Zwerin wrote:

As far as my research discloses, there has never been a judicial decision determining what is meant by the words "male" and "female."

There are many cases that deal with rape committed on the body of a female and other cases which construe the meaning of the term "male issue" for inheritance purposes, but the decisions are silent as to what these words specifically mean.

Our Civil Code permits marriage only between a male and a female, but our court has never been called upon to pass upon the meaning of these designations. Since the courts do not render advisory opinions, I must conclude that the problem has never been judicially raised.

As a layman, I can only conclude that the time may not be far away when the courts may be called upon to decide the actual significance of the male or female genitalia for the determination of one's sex. Neither the genetic nor the psychological sex could then be ignored.


[1] Chapter 4.

[2] Birker, H., and Klages, W., "Der Transvestismus, als Socialmedizinisches Problem," Zeitschrift für Psychotherapie & medizinische Psychologie. Vol. 11, 1961, p. 1.

[3] Robert V. Sherwin, "The Legal Problem in Transvestism," in a Symposium on Transsexualism and Transvestism. Amer. J. Psychotherapy, Vol. 3, No. 2, April 1954.

[4] Harpers´ Magazine, January 1965.

[5] Oceana Publications, New York, 1949.

[6] The diagnosis of "male" or "female," made hurriedly at birth, could be questioned, especially in view of future developments. How "biological" and how truthful would the official document then be?

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