Respect and Equality: Transsexual and Transgender Rights


The problem of who I legally am in the
world I live in has been vexatious
throughout my adult life. Like other
transsexual people worldwide, I face an
inadequate legal framework in which to exist.
Some of us live within states and nations that
recognise the difficulties and attempt to provide a
route way through the morass of problems that
arise; others barely, if at all, even acknowledge our
being. We are simply ‘not’ within a world that
only permits two sexes, only allows two forms of
gender role, identity or expression. Always falling
outside of the ‘norm,’ our lives become less, our
humanity is questioned, and our oppression is
I have spent 28 out of my (to date) 47 years
of life being known as Stephen. Prior to my
adoption of the name Stephen, regardless of the
name used for me by others, in my head, my day
dreams and my plans for the future I referred to
myself as Peter—a name I did not retain only
because other people felt it was old fashioned. I
have a beard, I wear a suit and tie to work – to not
do so would be considered inappropriate. My
partner and I have four children whom we chose
to have together and the children all refer to me
as Daddy. My driving licence, passport, library
card and video-club membership have only ever
referred to me in the male gender. Yet my
national insurance pension scheme has only ever
referred to me in the female gender; if I break the
law I will go to a women’s prison and to cap it all,
I will depart this life as Stephen Whittle, female.
I frequently face a dilemma in how I am to
refer to myself in various settings. I am all too
aware that I am not like most other men. For a
start, if I refer to myself as a man, am I claiming
some privileged position in the patriarchy? I
actually do not want to claim that position; I often
do not feel very privileged having been dismissed
from jobs in the past because of my otherness. I
have received hate mail and been excluded from
social events both public and private. I find the
fact that I cannot ensure my compulsory
employment pension contributions are passed
onto my partner of twenty five years standing, at
best, demeaning of our relationship, at worst, an
almost criminal extortion of money from me.
Where is my privilege?

Furthermore, I have a set of skills imbued in
me as a child and teenager that other men simply
do not have. Apart from sewing and household
cleaning skills, I listen differently and I contribute
to discussions differently. My childhood, like that
of many I suppose, was unhappy but the reasons
for that unhappiness were considerably different
from those of most others. I know my attitude to
other people and their lifestyles is one of almost
excessive tolerance, as long as it involves no harm
to others. I simply do not function in life with the
same assumptions that other men are afforded
through their upbringing and position of
In social and medical texts, my sort of man
has, over time, been referred to as a female urning
and gynandrist (Krafft-Ebing, 1893), female
transsexual (Stoller, 1975), and as a ‘woman who
wants to become a man’ (Green, 1974). More
r e c e n t l y, the common descriptor applied to me is
that of ‘female to male transsexual.’ This is on the
basis that I was born with genitalia that are
regarded as female yet have undergone a bilateral
m a s t e c t o m y, take testosterone on a regular basis
and I identify myself as male. Yet, am I a man? I
prefer to refer to myself as a trans man—my own
understanding is that I am a man who was born
female bodied and, as I explain to my children,
when I was big enough and old enough I made it
clear to other people that I really was a man and I
got it sorted out. This leaves me with a personally
acknowledged situation that I am a different sort
of man; I am a trans man with a transsexual status.
With my status, a trans man, the UK
government, because I have undergone some
surgical gender reassignment, acquiesces to my
request to be regarded as male (and not a man)
for some social purposes but continues to
maintain that for legal purposes I will be regarded
as a woman. They choose not to make my life
really difficult by making international travel or a
driving check embarrassing, but they refuse to
allow me many of the privileges that the law
affords other men. At their worse, they insist that I
am a woman.
It is difficult to explain what being a bearded
woman means to those who have never
experienced that position. If I want to take out life
insurance, I am forced to sit in front of an insurance broker who does not know me
from Adam (or Eve for that matter) and
explain that I am a woman—which always
raises the eyebrows. I never ever want to
lose my job because the idea of sitting in
the dole office waiting for the clerk to
shout out ‘Miss Stephen Whittle to cubicle
6’ makes me feel sick. I find it appalling
that one of my children might one day
have to register my death and on their
return to collect the certificate will find I
have been identified as Stephen Whittle,
female, and that they will simply become
‘friend of the deceased.’
The presumption that has been
taken by most academic writers in the area
is that I, and people like me, are
demanding that we be legally recognised
in the gender role in which we live. I am
not sure if that is the case (though it may
be for some) and anyway, surely the role I
live in is that of a trans man. I am willing
to be a different sort of man, but I am not
willing to be a different sort of woman
because I have never been a woman. I
transitioned into living as a man when I
was 19 years old; therefore, as I often
explain, on that basis I never reached the
exalted state of womanhood—my
experience was at most, that of being a
different girl. But even if I was a girl, my
experience was significantly different from
that of other girls, ask my sisters and they
will verify that. My life is different, it is the
experience of being a trans man, and as
such, discrimination has been perpetrated
on me throughout my life in an entirely
a r b i t r a ry manner. I have lost jobs not
because I do not do them well but because
my life history is that of a trans man. My
partner is refused my pension not because
my money is not good but because I have
the life history of a trans man.
Yet I am proud to be a trans man. I
have surmounted great odds in life, I have
had the pleasure of experiencing life in a
very unique way, I have learnt a lot about
tolerance and I have learnt a lot about
bravery, hard work and commitment from
the many other trans people I have met.
Should it be so hard to be myself, to be a
trans man, and the operative word in that
is ‘man’. This essay is in effect a plea to
the law. I want to be able to be a visible
trans man, to obtain my own identity and
to be recognised as myself. But firstly, we
must try to understand exactly what is
taking place in order to ascertain what we
can learn about the nature and
construction of the legal culture, and the
nature and construction of gender, in
itself, by studying the legal problems that
transpire because of the emergence of
transsexualism in our society.
For Irigary (1977) to have an identity
which is not one’s own, to be a sex which
is not one, is to be excluded from the
fullness of being: it is to be left precisely in
a condition of dereliction. One is excluded,
therefore, from the social contract within
which men participate. A Rousseau’sian
design of the social contract inevitably fails
because the abstract individual of liberal
democratic theory is, as Patemen (1989)
has shown, in fact a man. Irigary is
referring to women as women, women
who never have their own identity—a
woman’s identity is defined through the
social and cultural persona, they are in
society but not of society. And this could
be seen as an echo of the women in law; a
woman is objectified through interv e ntionist
law, she never is the law. As such,
the egalitarian project of law is doomed
through its own history, and the interv e ntionist
project in law is doomed through its
further objectification. Both deal in a
mythical equivalency.
The question then lies on whether
there is any other form of project which
can address the issue of the inadequacies of
sexed / gendered law. … John Locke
asserted in relation to the law that the use
of words is to be the sensible mark of ideas;
and the ideas they stand for are their
proper and immediate signification (in
Douzinas, Warrington, McVeigh 1991: 228)
Let us consider, then, the extent to
which the UK’s Road Traffic Offender’s Act
1988 (RTOA) is a ‘sensible mark of ideas.’
In the RTOA, it is a separate offence not to
acknowledge, in court documents, a sex
classification for yourself. Does this then
require giving a legally correct classification
or is the choice of sex yours, as
long as you give one? Do you have to give
the one that the court would recognise,
and anyhow, do you know what system
the court would use to recognise it?
If we consider the situation of the
androgen insensitive woman, I (and
medicine) refer to her as a woman, yet do
we know for the purposes of the law
whether she is a woman, or whether she is
a man. Is the classification the one
afforded on her birth certificate, i.e. based
on a cursory glance by a midwife to see
whether there is a penis or not? In other
words, a process that simply asserts
whether someone is a ‘man’ or a ‘not
man.’ Or should the law follow the threepoint
test devised by Ormrod LJ in the
case of Corbett2? Her chromosomes
would be XY, her gonads would be undescended
testes, and her genitalia would
include a vagina? In the civil law,
therefore, if the court uses the balance of
probabilities test used for ascertaining
evidential proof, I suspect she would be
found to be a man on a 2:1 rule. However
in the criminal court if we were to have to
prove her sex, say for an offence involving
soliciting, would the evidential burden of
‘beyond all reasonable doubt’ mean that
the court would be left with no sex site
that they could place this woman in?
As UK law currently stands the
transsexual man, if born in Britain, would
be legally classified as a woman for the
purposes of marriage3, the criminal law4,
Social Security and National Insurance
benefits5, immigration6 and parenting7.
For the purposes of employment he would
be afforded the special status of ‘woman
who is transsexual’,8 which simply means
a woman with special protection for
having an identity peccadillo. If the trans
man were born outside of Britain then his
identity in each of these areas of the law
would be dependant upon the nation
state he was born in.9 Yet, the trans man
would be classified on his driving licence
(through the codification system) as a
man. If the trans man is required to give
his ‘sex’ to the court if he is facing a
driving disqualification, presumably the
purpose of that disclosure is to ensure that
the driving licence records of the correct
person are marked up. Should he say he is
a man or male, or should he say he is a
woman or female? What is the
requirement of the law? It is no defence to
a criminal act to argue that you had no
knowledge of the law, or that you did not
understand it. Where lies Locke’s ‘sensible
mark of ideas,’ the logic of the law is truly
at times an ass.

1. A version of this essay was published as
“The Becoming Man : The Law’s Ass
Speaks” in More K, Whittle S (eds) (1999)
Reclaiming Genders: Transsexual Grammars
at the Fin De Siecle, London: Cassell
2. Corbett v Corbett [1970] 2 All ER 33
3. ibid
4. R v Tan and others [1983] 2 All ER 12
5. Sheffield v UK Government Applic. No
22985/93 (1993) E.C.H.R
6. Horsham v UK Government Applic. No
23390/94 (1994) E.C.H.R
7. X, Y and Z v UK Government [1997]
75/1995/581/667 E.C.H.R
8. M v The Chief Constable of the West
Midlands Police (1996) 04/430/064
9. For example; if born in Ontario in Canada
he would be a man for the purposes of
immigration into Britain, yet he would be
woman for the purposes of marriage. (see
the comments earlier in this chapter on the
cases of C(L) v C(C) (1992) and B. v A.
(1990). If born in Holland he would be a
man for all purposes except (probably) the
criminal law.

Stephen Whittle was the
2003 winner of CLAGS’s
Sylvia Rivera Award in
Transgender Studies for
his book, Respect and
Equality: Transsexual
and Transgender Rights
(London: Cavendish
Publishing, 2002). The
following passages are
excerpted from the first