Background

Historical framework

Transgendered people have existed throughout history. Several cultures have integrated behaviours related to sex and gender that today would be seen by North American culture as incongruent with socially acceptable behaviours.^[8]

At the turn of the twentieth century, transsexualism became a medical phenomenon. German physician Magnus Hirshfield founded the Scientific Humanitarian Committee in 1897 to examine homosexuality, transsexualism, and other aspects of sexual and gender identity outside the expected norms of the day. Later the Diagnostic Statistical Manual on Psychiatric Disorders^[9] (current edition referred to as “DSM IV”) included Gender Dysphoria to identify the lack of congruence between gender identity and birth-assigned sex.

In 1952, Christine Jorgensen was the first individual to publicly disclose her sex reassignment surgery. In 1966, Dr. Harry Benjamin, an endocrinologist, and sexologist published The Transsexual Phenomenon.^[10] He notes, among other things, that psychotherapy is an ineffective ‘cure’ for transsexualism and that sex reassignment surgery could allow the transsexual to experience greater congruence between felt gender identity and birth assigned sex.

The Harry Benjamin International Gender Dysphoria Association now sets out minimum criteria for sex reassignment surgery. These criteria are the basis for standards in gender identity clinics including the Gender Identity Clinic at the Clarke Institute of Psychiatry.

For several decades, transgendered people have been assessed and identified in relation to a ‘medicalised’ identity or model.^[11] For example, a transsexual is considered a medical phenomenon and not as a whole person with a distinct and variant gender identity. Transsexuals remain relatively invisible in society, except within the context of the gay, lesbian and bisexual communities where they are not necessarily identified as transgendered, nor are they always accepted.

Politicisation of transgender issues is also reflected in the grass roots-initiated International Bill of Gender Rights.^[12] This document addresses areas of oppression for transgendered people as well as the following rights:

• the right to define gender identity;
• the right to free expression of gender identity;
• the right to control and change one’s own body;
• the right to competent medical and professional care;
• the right to sexual expression;
• the right to form committed loving relationships and enter into marital contracts; and
• the right to conceive or adopt children, to nurture and have custody of children and exercise of parental rights.

Other rights noted by advocates include:

• the freedom not to have to disclose details of gender role assignment unless necessary;
• the freedom to enjoy a job without fear of dismissal or harassment;
• the right to human rights protection; and
• the right to be acknowledged at death in one’s felt gender.

In 1998, The Canadian Task Force for Transgender Law Reform was founded. This group seeks to have amendments to the Code, provincial and federal legislation, and the Canadian Charter of Rights and Freedoms.^[13] It also seeks a guarantee of rights and freedoms such as:

• freedom of gender expression;
• freedom of movement;
• the right to enter into marriage;
• the right to parent children;
• the right to self governance;
• the right to therapeutic care, and
• the right to appropriate health care.^[14]

^[8] See Finding our Place: Transgendered Law Reform Project, High Risk Project Society (March 1996) at 8. See generally L. Feinberg, Transgender Warriors: Making History from Joan of Arc to RuPaul (Beacon Press, Boston, 1996); See also Niger: Les hommes se maquillent pour trouver une compagne, GEO: Un nouveau monde: la Terre (aout, 1998). This edition looks at mating rites in different cultures that include female cultural practices for males such as make up.
^[9] See Diagnostic and Statistical Manual of Mental Disorders 4th edition (Washington D.C.: American Psychiatric Association, 1994). This is an authoritative and comprehensive manual devoted to the classification of psychiatric illness. This manual precisely defines the differences between similar disorders and gives guidelines for making diagnoses.
^[10] Dr. H. Benjamin, The Transsexual Phenomenon (New York: Julian Press, 1966).
^[11] Term used in Finding our Place at note 8.
^[12] The International Bill of Gender Rights (IBGR) was first drafted in committee and adopted by the International Conference on Transgender Law and Employment Policy (ICTLEP) at the organization's second annual meeting, held in Houston, Texas, August 26-29, 1993. The IBGR has been reviewed and amended in committee and adopted with revisions at subsequent annual meetings of ICTLEP in 1994 and on June 17, 1995. Copyright 1995 by ICTLEP <http://www.msu.edu/~lees/ibgr.html>.
^[13] Canadian Charter of Rights and Freedoms [Part 1 of the Constitution Act, 1982, R.S.C. 1985, App. 11. C. 44, enacted as Sched. B to the Canada Act, 1982 (U.K.), c. 11].
^[14] See Canadian Task Force for Transgendered Law Reform, Charter of the Canadian Task Force for Transgendered Law Reform; Draft 1.3 (Ottawa: unpublished, 1998).