The Bottom of the Barrel

Larry, a UM blogger over at Ding Letters, wrote about the GEO strike yesterday.  I love that he has an opinion and I love that he expresses it.  There are a couple of things that sadden me about the post, however.  Most importantly, his opinion is woefully uninformed, and secondly, he states it as if it were fact.  The second annoyance is purely personal and has taste of vindictiveness in my mouth, so I'll treat it briefly and move on to the important question. Note the following sentence, as he refers to "sex-change operations":

"Sorry, those aren't medically necessary."

Now, maybe Larry has broader experience in the area of transsexuality that he's not sharing, or has a Ph.D. in psychiatry or an M.D. that allows what I take to be an opinion of his to be stated in such matter-of-fact terms.  If so, I sincerely apologize.  But, for the record, let it be known that my opinion differs.  Perhaps our difference of opinion lies not with our respective levels of knowledge about the subject but rather is merely definitional -- how does one define 'medical necessity'?  Many, many surgeries (maybe most? I don't know) that are covered by insurance are not life threatening (which seems to be Larry's criteria) and yet are deemed to be medically necessary, some of which (I use the cleft palate example) are even correctable only through plastic surgery.  Nevertheless, I would argue that gender reassignment surgery (or sex-change operation as Larry calls it) does treat a life-threatening condition. Indeed, although as a transsexual that is my opinion, it is also the opinion of the medical professionals (psychologists, psychiatrists, medical doctors and surgeons and finally even some insurance carriers) who act as the gate-keepers to such procedures. See the Harry Benjamin International Gender Dysphoria Association (HBIGDA) web-site.

OK, now on to a more substantive inquiry raised by Larry: Who is a woman?

Here, Larry offers a nod in the direction that he may be speaking out of ignorance when he says:

"Granted, maybe I can't understand the pain of someone whose brain says "woman" but whose [equipment] says "man," or vice versa."

But in doing so, he raises the question that bothers so many, including doctors, lawyers and judges: what a makes a woman a woman (or a man a man)?  Is it the "equipment"?  And, if so, which equipment?

The Texas Court of Appeals said that the important equipment in question was chromosomes:

"The male chromosomes do not change with either hormonal treatment or sex reassignment surgery. Biologically a post-operative female transsexual is still a male." Littleton v. Prange, 9 S.W.3d 223, 231 (Tex. App., 1999).

On the other hand, the Kansas Court of Appeals said of the Littleton court's analysis:

"This court rejects the reasoning of the majority in the Littleton case as a rigid and simplistic approach to issues that are far more complex than addressed in that opinion." In re Estate of Gardiner, 29 Kan. App. 2d 92, 127 (Kan. Ct. App., 2001)

The Kansas court offered a detailed, in-depth analysis of the factors that go into determining what makes a person the sex they are (if such a determination can indeed ultimately be made).  In remanding the case, the Appeals Court ordered the trial court to consider the following factors in determining if one of the litigants (a male-to-female transsexual) was a man or a woman:

"Medical experts recognize that many factors contribute to the determination of an individual's sex. According to medical professionals, the typical criteria of sex include:

1. Genetic or chromosomal sex--XY or XX;
            2. Gonadal sex (reproductive sex glands)--testes or ovaries;
            3. Internal morphologic sex (determined after three months gestation)--seminal vesicles/prostrate [sic] or vagina/uterus/fallopian tubes;
            4. External morphologic sex (genitalia)--penis/scrotum or clitoris/labia;
            5. Hormonal sex--androgens or estrogens;
            6. Phenotypic sex (secondary sexual features)--facial and chest hair or breasts;
            7. Assigned sex and gender of rearing; and
            8. Sexual identity.

The Kansas Supreme Court overturned the Court of Appeals and opined - contrary to medical and scientific evidence that chromosomes cannot be the sole determinant of sex - that chromosomes were, indeed, dispositive.  Nevertheless, even in doing so the court noted:

"We are not blind to the stress and pain experienced by one who is born a male but perceives oneself as a female. We recognize that there are people who do not fit neatly into the commonly recognized category of male or female, and to many life becomes an ordeal."  In re Estate of Gardiner, 273 Kan. 191 (Kan., 2002).

Perhaps in doing so, the Court shows some compassion and understanding of the terrific trials that ultimately leads transsexuals and their care-givers to determine that surgery is, indeed, medically necessary.

As a final note, I would comment upon another of Larry's remarks:

"And how many people plan to get sex-change operations while in graduate school? I would suspect, as a current and former graduate student, that it would not be the best time. "

It seems to me that this argument swings both ways.  If there are not that many grad students who would seek such surgery, then where is the harm in protecting those for whom it is life-saving? (Also, as you can tell from my posts here and here, I argue for it regardless of the quantity of seekers).  And, as an aside, I personally know of two graduate students who chose to have surgery while in grad school -- one in the midst of a doctoral program and one during the summer between the first and second year of law school. 

For those interested in additional reading:

See this post (includes a source list of further readings)

Download Gardiner_ks_appeals_court.pdf

Download in_re_estate_of_Gardiner_supreme_court_ks.pdf