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Posted on January 31, 2019 at 1:04 AM

by Craig Klugman, Ph.D.

This past weekend, I enjoyed a screening of On The Basis of Sex, a film about Ruth Bader Ginsburg’s first federal case that introduced the idea of gender equity into the law. The film was moving because of the excellent acting and because of its significance in terms of not arbitrarily penalizing people or preventing them from exercising human rights simply because of their gender. In furtherance of the idea of gender equality, last year New York and this year New Jersey added a gender neutral option on birth certificates.

Thus, in the state of mind, I was surprised to read that the Supreme Court of Japan issued a final ruling on a case that had been making its way through the courts for 15 years. The Court decided in favor of requiring sterilization as a condition of a person changing their gender on state documents. For someone who identifies as transgender or as a gender different than the one on their birth certificate and wishes to be known as the gender with which they identify, they are required to be sterilized (to give up the idea of ever having genetic children) to have the state recognize them.

This case begins when Japan enacted a law in 2003, Law Concerning Special Cases in Handling Gender for People With Gender Identity Disorder (a.k.a.  Gender Identity Disorder Law): In order to change a person’s legal gender status, that person must be over 20 years of age, unmarried, without children, have “no reproductive glands or whose reproductive glands have permanently lost function” and have “a body which appears to have parts that resemble the genital organs of those of the Opposite Gender.” The person must also present themselves to a physician who completes a medical certificate certifying a relevant diagnosis and that the above conditions are met. Since the law went into effect, approximately 7,000 people have legally changed their gender. That’s 7,000 people who had to be single, who could not have had children, and who were required to undergo sterilization to ensure that they never would have children and to have genital transition surgery irrespective of whether they wanted it. Put simply, they had to surrender their bodily autonomy to the state.

In the U.S. 1.4 million adults (0.6% of the population) identify as transgender. The Japanese ruling is in the opposite direction of trends in the U.S. Besides more states adding a neutral gender option on birth certificates, more states are adding gender neutral options on driver’s licenses without requiring a physician’s certificate (Oregon, DC, Nevada, and California). Many are also dropping requirements that doctors certify a person’s gender. The reasoning is that people are better determiners of their own gender than a clinician who sees only organs and not the person. However, many state’s still require a doctor’s form such as in my home state of Illinois which requires either a doctor’s form or a court order to change a driver’s license or a birth certificate. And that person has to publish a notification of the change in the newspaper (talk subjecting someone to potential stigmatization and discrimination). Eleven U.S. states still require a proof of gender transition surgery (the box on the form must match what a doctor sees, not how a person identifies) to have their legal documents changed. The US is not much better than Japan on this matter. If the U.S. Supreme Court were to rule on a similar case, I do not think they would decide it much differently.

In Japan and in many US states, the law requires a physician to be the gatekeeper for choosing who qualifies for the privilege of registering a gender change. That means the physician can refuse for their own religious or philosophical reasons. In Japan, the physician must certify that a person has a disease—gender dysmorphia—and that it has been “treated”—sterilization and genital surgery. In other words, a person must declare and have confirmed that they have a disease rather than having an identity and subject themselves to a scalpel. If we take autonomy in any serious way, than this attempt by the state to coerce people into seeking a physician to verify them having a disease for simply being themselves violates any notion of self-governance. We are saying that a person can only choose by declaring themselves as something less than all others (sick) and to give up some of their human rights to controlling their body and to the potential of having children.

Beyond the question of needing a physician’s certification of illness is the looming question of the state requiring sterilization of a person who seeks to have their gender acknowledged. Such surgery is physically unnecessary and in fact harms the individual by subjecting them to an unnecessary surgery and by removing their autonomy. Why would a state require this action? Why would any physician agree to perform these procedures? Is this the proper role for a physician to take—to enforce the state’s views of normal? Isn’t this exactly what bioethicists have criticized physicians in the Nazi era of doing? Where is the moral courage that all people should have?

Among the reasons given for the need for the sterilization requirement are to maintain the status quo of society (two fixed genders), to preserve a conservative meaning of family and parenting, and because a deity makes no mistakes in giving a person a birth gender (so it should never be altered). In other words, this is all about fear and control: Fear of what some people do not understand, and a desire to control other people to fit into narrow categories. This attitude and perspective is nothing less than eugenics and physicians are being forced (or are volunteering) to be part of it.

The Japanese Court’s dissenting statements stated that social mores might change, which would require revisiting the ruling, leaving a glimmer of hope. One way to combat discrimination is by getting to know people. After all, one of the ways that marriage equality was passed was that people who were against it learned that people they knew and liked were gay. In Japan,50% of people claim they do not know anyone who is trans and no one who completed the study identified as trans. The cis-gendered need to make an effort to get to know people are trans.

When categories diminish and ignore people, especially when backed by immoral laws, the rules must be changed. To take autonomy seriously means eliminating the antiquarian and damaging laws that require one to admit a disease when there is no disease, and to subject their bodies to a coerced surgery that removes their right to bodily self-determination and procreative liberty. Let us work to make laws that make it easier for people to change their gender on official documents. The simplest answer might be to scrap the question of gender on official forms altogether. In the meantime, physicians should refuse to perform surgeries required by the state for recognition of a person’s human identity. Informed consent for these procedures must ask if the person would be pursuing sterilization or transition surgery if the state did not mandate it? For the rest of us, let’s create an environment where we get to know our family, friends and neighbors who identify as trans in a nonjudgmental environment to create a social morality of acceptance, love, and equality.

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