Sarah and Stephen's relationship is described as "permanent and stable", yet legally Stephen cannot be recognised as the father of their children, conceived with the help of a donor. Why? Because he was once a woman. The European Court of Human Rights has ruled that the UK authorities were not in breach of the human rights convention by refusing to acknowledge officially Mr Whittle's sex change.
This was a test case because Stephen Whittle had tried and failed in his attempt to register himself as the biological father of his children. He cannot adopt them either, because his birth certificate says he is a woman and a same-sex marriage cannot be recognised. He could alter his driving licence, his passport, but not his birth certificate.
Without obtaining legal status as the father of his children, Whittle does not have the right to authorise medical treatment for them or to be given confidential information by his children's school. If his partner died, he would have no automatic right to bring up his children. As he says: "To recognise me as the father of the children would have brought a whole other series of legal issues." Or a can of worms. Appropriately enough, worms are hermaphrodites who routinely manage successful reproduction.
Although this is a case about parenting, it illustrates how the law as currently practised is really unable to deal with transsexuality. Can someone who changes gender be properly recognised by the law? Some transsexuals want to alter their birth certificates in order to obtain official status as a "real man" or "real woman". Others feel that they do not want to erase or lie about their history, they would simply be happy with amendments to the law which allow them the same rights as other parents.
As in so many other areas - reproductive technology, genetic engineering, our increasing access to information, issues of ownership, authorship and copyright, the law is lagging behind advances which belie so many of the old categories that the legal system depends upon. In this case biology is destiny, as the law does not really recognise the possibility of gender change. Yet we live in a world where the techniques required to change sex are becoming more and more sophisticated.
Of course there have always been transsexuals. Some would say there have always been more than two genders, and that at some periods in history and in some cultures this has been accepted. However, we see the world at a fundamental level as being organised around just the two: male or female. The first thing we ask about an essentially sexless baby is "Is it a girl or a boy?" as if that is always the most important piece of information available. There have been throughout history famous cases of hermaphrodites, eunuchs, transsexuals, transvestites. All these other categories are fairly muddled in our minds. The current PC phrase is "trans- gender", yet the problem with transsexuality is that instead of reminding us that gender is far more fluid, far less fixed than we imagined, it tends to reinforce the very categories its existence denies.
The transsexual is continually having to insist that he or she is the real thing but was previously merely trapped in the wrong body. This is the dominant discourse of gender dysphoria. In order to get a sex change in the first place, one has to perform as the chosen gender at the same time as insisting that ever since childhood one has known that something is deeply wrong. Once the body is altered, the transsexual's true identity can emerge in harmony with his or her brand-new freshly mutilated body.
Here the law crosses over with psychiatry, for both these control systems depend on notions of authenticity. The transsexual is destined to be deemed inauthentic no matter how he or she lives, neither properly male nor properly female. Nowadays some brave transsexuals, such as Kate Bornstein, who wrote the book Gender Outlaw, have rejected the medicalised script that has been written out for them, insisting that they are neither one thing or the other and that they don't want to be classified in this way. S/he proudly proclaims her status as a pervert. The idea of a third sex has once again become fashionable and in many ways seems far more radical than the rigid adherence to gender stereotypes that transsexuals have to go to such lengths to fit into.
Stephen Whittle has inevitably to insist that he is a real father to his children, more real in his behaviour than many biological fathers. But how can he ever be a real father if he is not a real man, if he was not born with the right equipment? Despite the headlines, this case is not so much about transsexuality as about same-sex parenting. Whittle has no legal status because he cannot marry his partner. They could instead be granted a joint residence order, which would also grant him some of the parental rights he wants but would only be binding while both parents are alive and living together.
Angela Mason, head of the lesbian and gay rights group Stonewall, says: "The English courts are quite progressive in this way, however this case also has implications for same-sex partners. What is the legal status of the parent with no biological relationship to a child that two people are parenting together?"
With artificial insemination on the increase, the law will itself have to confront more and more of these complex cases. At the moment, a man who is not the biological father of a child can be registered if he is married to the child's mother. For instance, a husband who is impotent can be given legal status as a father even if the child has been conceived by artificial insemination by donor.
The difficulty then, for transgendered parents is not that they are not biological parents, but that they are essentially regarded by the law as being in same-sex relationships. As long as the law refuses to recognise that people have a right to change gender or be parenting in same-sex relationships, there will be more challenges to such rulings.
And what about the children, you may well ask? Well, while real fathers may be feckless and irresponsible, responsible and caring fathers such as Whittle are deemed not real enough. One might have thought that if the law is to protect children, what is paramount is the quality of the parenting involved rather than the genitalia, present or past, of the parents.
But then again, when Stephen Whittle became a man perhaps someone should have reminded him of the old saying, "Maternity is a fact, paternity is an opinion." At least we all have the right to change our opinion n
Gender outlaws (clockwise from the top): the Chevalier d'Eon (1728- 1810), a minister of Louis XVI of France, wore female clothes as a disguise; the question of his sex was not settled until a post-mortem was performed. The Roman emperor Heliogabalus (204-22) assumed power at the age of 14, but left the duties of office mainly to his mother while devoting himself to living as a woman. He 'married' one of his soldiers, ordered his physicians to fashion him a vagina and was eventually murdered in a latrine. The Pope Joan of legend, supposedly a learned woman who wore men's clothing, was said to have succeeded Leo IV as Pope in the 9th century; the legend thrived between the 13th and 16th centuries. Below left: the transvestite as dandy: a 'Travesti' in Paris, 1902
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