International
Conference on Transgender Law and Employment Policy, Inc.
Health Law Standards of Care for Transsexualism
Health
Law Standards of Care for Transsexualism first adopted at the 2nd
International Conference on Transgender Law and Employment Policy,
August 1993 in Houston, Texas, U.S.A.
Principle 1. Transsexualism
is an ancient and persistent part of human experience and is not in
itself a medical illness or mental disorder. Transsexualism is a desire
to change the expression of one's gender identity.
Principle 2. Persons
have the right to express their gender identity through changes to
their physical appearance, including the use of hormones and reconstructive
surgery.
Principle 3. Persons
denied the ability to exercise control over their own bodies in terms
of gender expression, through informed access to medical services,
may experience significant distress and suffer a diminished capacity
to function socially, economically and sexually.
Principle 4. Providers
of health care (including surgical) services to transsexuals have
a right to charge reasonable fees for their services, to be paid in
advance, and to require a waiver of all tort liability except negligence.
Principle 5. It
is unethical to discriminate in the provision of sex reassignment
services based on the sexual orientation, marital status, or physical
appearance of a patient.
Standard 1. Physicians
participating in transsexual health care shall provide hormonal sex
reassignment therapy to patients requesting a change in their sexual
appearance subject only to (1) the physician's reasonable belief that
the therapy will not aggravate a patient's health conditions, (2)
the patient's compliance with periodic blood chemistry checks to ensure
a continued healthy condition, and (3) patient's signature of an informed
consent and waiver of liability form. If the patient is married, the
physician may not require divorce but may also require the spouse
to sign a waiver of liability form.
Standard 2. Physicians
providing hormonal sex reassignment therapy shall collect and publish
on an annual basis the number of hormone prescriptions they have issued
and the number and general nature of any complications and complaints
involved. The publication requirement of this Standard shall be satisfied
by providing the collected statistics in writing, together with other
current information on the potential risks and complications of sex
hormone therapy, to all prospective patients inquiring into the physician's
hormone therapy services.
Standard 3. Surgeons
participating in transsexual health care shall provide sex reassignment
surgery to patients requesting a change in their sexual appearance
subject only to (1) the surgeon's reasonable belief that the surgery
will not aggravate pre-existing health conditions. (2) the surgeon's
reasonable determination that the patient has been under hormonal
sex reassignment therapy for at least one year, and (3) the patient's
signature of an informed consent and waiver of liability form. If
the patient is married, the surgeon may not require divorce but may
also require the spouse to sign a waiver of liability form.
Standard 4. Surgeons
providing sex reassignment surgery shall collect and publish on an
annual basis the number of sex reassignment surgeries they performed
and the number and general nature of any complications and complaints
involved. The publication requirement of this Standard shall be satisfied
by providing the collected statistics in writing, together with other
current information on the potential risks and complications of sex
reassignment surgery, to all prospective patients inquiring into the
sex surgeon's sex reassignment services.
Standard 5. Physicians
and surgeons shall not divulge the nature or identity of any patient
requesting or receiving sex reassignment services except as explicitly
directed in a notarized written request by the patient.
Proposed Legal
Definitions
Faced with the wide array of definitions of sex, gender and transsexualism,
ICTLEP offer some standard definitions from the standpoint of utility
under health law.
Sex: A person's
identity along a continuum of role types with "male" and
"female" at the polar extremes.
Role Type: A set
of beliefs, behaviors and appearances.
Male: A role type
which a particular culture associates with individuals anatomically
structured for contributing reproductive cells to another person.
Female: A role
type which a particular culture associates with individuals anatomically
structured for receiving reproductive cells from another person.
Gender: The characteristics
of a continuum of role types ranging from male to female, with such
characteristics including behaviors and sexual anatomy, and being
labelled as "masculine" and "feminine" at the
polar extremes.
Transsexualism
= Transgenderism: The condition of wanting to change one's gender
to better match one's sex.
These revised
legal definitions recognize the emerging scientific reality that sex
is in the brain, and not the body. Transsexuals do not really change
their sex - they are born with that. Instead, transsexuals aim to
change the erroneous sex labels that were assigned to them at birth.
The only way to change those labels is to change the basis upon which
those labels were applied, namely, the outward expressions of sex.
This means that to change a sexual label, one must change their gender
- from behavior to anatomy - since gender is the outward expression
of one's sexual identify. Hence, transsexualism is really a misnomer
and transgenderism is a more scientifically accurate term.
FORM 1: Informed
Consent and Waiver of Liability
I, __________________ , having been fully informed in writing of the
potential risks and complications of hormonal or surgical sex reassignment,
do hereby choose of my own free will and consent to undertake this
treatment because I want to alter my physical appearance to more closely
reflect my gender identity.
I hereby release
Dr. ________________ of any and all liability for my decision to undertake
a change of my sexual appearance and, for long-term use of hormones
or for sex reassignment surgery, to affect on a permanent, irreversible
basis my current sexual functioning, I promise not to sue Dr. _____________
for any of the consequences of my hormonal sex reassignment or surgical
sex reassignment unless those consequences are the result of negligence
in the conduct of my hormone therapy or in the carrying out of my
surgery.
Dated at ____________
this ______ day of ________, _________.
Patent signature:
Witness:
FORM 2: Spousal
Informed Consent and Waiver of Liability
I, ______________ , am presently married to _____________________
(Patient). I understand that Patient wishes to alter his/her physical
appearance to more clearly reflect his/her gender identity, and has
been trying to do so for at least ____ year(s). I have been actively
involved in and fully support Patient's sex change process.
I have been fully
informed of the nature of transsexualism and sex reassignment surgery
or hormonal therapy. I fully understand that the surgery or hormone
therapy which Patient will undergo will transform Patient into the
opposite sex. I fully understand that the surgery and effects of long-term
use of hormones is not reversible, and that Patient will never be
able to sire or bear children after the surgery or long-term hormonal
therapy. I also understand that the sex reassignment process involves
dangers and risks including, but not limited to, post-operative infection,
depression, emotional changes and other physical and psychological
changes. It is with my full knowledge and consent that my spouse,
the Patient, undergo sex reassignment surgery or hormonal therapy
to cause a change of his/her sex to occur.
I hereby release
and hold harmless Dr. ___________________ from any and all claims
arising out of performance of sex reassignment surgery or hormonal
therapy, actual negligence excepted. I fully understand that I will
not be able to seek monetary damages for any loss of sexual companionship
between Patient and myself, the loss of Patient's ability to sire
or bear children or any similar problems which may arise from the
performance of the sex reassignment surgery or hormonal therapy.
Dated at ____________
this ______ day of ________, _________.
Spouse signature:
Witness:
Notary:
These Standards of Care were developed and adopted by consensus over
a two-year period by the Health Law Project of the International Conference
on Transgender Law and Employment Policy, Inc., and will be revised,
as necessary, at subsequent conferences. The Health Law Project's
membership includes professionals in the fields of law, health care
policy and gender science - most of whom are transgendered themselves.
We suggest you distribute these freely and widely. The Health Law
Standards of Care were developed in the wake of widespread dissatisfaction
by many in the transgendered community with the Harry Benjamin Standards
of Care. Also relevant is the pending de-listing of transsexualism
per se as a mental disorder from the DSM-IV. Many, if not most, of
the patients doctors see for gender medical services (hormones; surgery)
do not require any psychological services.
For more information
or to provide comments on these Standards of Care, please write to:
Martine Aliana Rothblatt, Esq., Director Health Law Project ICTLEP,
Inc., 1718 Rhode Island Ave., NW #333, Washington, DC 20036 FAX: (301)
495-8987