Accident of Birth or Matter of Choice: Legal Recognition of Transsexual People in the Common Law

Authors

Kevin K.S. Tso, Harvard Law School

Abstract

The purpose of the Article is to look at the recognition-or lack thereof-of transsexual people at common law in relation to the "proper" sex and gender with which they associate themselves. This Article will begin by addressing and defining transsexualism and how the medical community's position on this topic has evolved over the years. It will then look at the historical foundations of transsexualism in the common law, especially at the Corbett decision that held sway in England and Wales for over thirty-five years and was followed internationally. The Article will then provide an overview of the current positions in different common law jurisdictions in light of modern developments, dividing them between the West-UK, Ireland, Australia, and New Zealand-and East-Malaysia, Singapore, and Hong Kong. This Part will also include an outline of the legislative measures undertaken by certain jurisdictions post-recognition to provide legal status to transsexuals in their "proper" sex and gender. A critique of the Corbett decision will then be undertaken to determine whether it should be followed in light of its inherent logical fallacies, the modern developments already discussed, and on human rights grounds.

Disciplines

Common Law | Comparative and Foreign Law | Jurisprudence | Law | Law and Gender | Sexuality and the Law

Recommended Citation

Kevin K. Tso, Accident of Birth or Matter of Choice: Legal Recognition of Transsexual People in the Common Law, 21 Cardozo J. Equal Rts. & Soc. Just. 683 (2015).
Available at: https://larc.cardozo.yu.edu/cardozoersj/vol21/iss3/2