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Gender Determination and Human Rights
Desperately Seeking Arlette (and the Precedent She Set)
by Katrina C. Rose
Arlette-Irčne Leber was born on Christmas Day, 1912 in La Chaux-de-Fonds, Switzerland.
Well, Arlette-Irčne's name at birth was Arnold-Lčon. In late 1941 and early 1942, Leber underwent a series of sex reassignment surgeries. 'But,' I'm sure that some of you are muttering to yourselves, 'That's nothing earth-shattering. We know that there were sex change operations in the years before Christine Jorgensen, mostly done by the German sexologists who the Nazis purged early on in their reign of terror.'
Indeed - all of that is true. But, how many of you are aware that a court actually recognized a legal change of gender for a post-op transsexual as early as 1945 and that the court specifically rejected an effort to prohibit that transsexual from marrying as a member of her post-transition gender?
The San Antonio Court of Appeals certainly wasn't when it assumed that ground zero in western law for the concept of legal change of gender was the 1970 British case, Corbett v. Corbett, which, for reasons that are increasingly appearing to be dubious, held that chromosomes equal sex.
Twenty-five years before post-operative male-to-female transsexual April Ashley was declared, in Corbett, to be male (by a judge who, according to Ashley's account of how the trial unfolded (fn. 1), made his anti-transition decision not to protect the heterosexual institution of marriage but to protect the British aristocracy from the indignity of having a commoner who had the nerve to take charge of her own life by transitioning from male to female marry into it; had the marriage been upheld, Ashley would have been the daughter-in-law of Lord Rowallan), a Swiss Cantonal Court approved of a petition for a "change of civic status" from male to female for post-op transsexual Arlette-Irčne Leber. (fn. 2)
Ms. Leber may well still be alive (if so, she's 87), but her case is all but forgotten. I've seen no American, Canadian or British cases that refer to it. Apparently, the only law journal article with a reference to it was a 1971 Cornell Law Review article (fn. 3) which, years after its publication, was a major persuasive influence in an Australian decision which totally repudiated Corbett. That Cornell article actually referred to a 1958 book by Eugene de Savitsch, Homosexuality, Transvestism and Change of Sex, which, apart from one medical journal article, is the only other mention of what is probably the most significant positive development in transgender law prior to Minnesota's 1993 Human Rights Act.
The de Savitsch book contains the full text of the Leber decision (translated, luckily), as well as a rather thorough case history of Ms. Leber herself.
Unfortunately, it also contains a lot of now-disfavored phraseology regarding sexual minorities - mostly of the 'sexual inversion' genre - as well a somewhat patriarchal attitude. Also, despite a decidedly modern attitude toward decriminalization of consensual sexual behavior, de Savitsch and those quoted in the book apparently approved more of transsexuality than homosexuality. Oh well - just think of it as incremental progress. ('Incremental progress' doesn't seem so hot when you're the increment that gets left behind now does it?)
The opinion wasn't perfect either, but it contained an interesting holding - that Ms. Leber was female in law (rejecting the request of one of Leber's own experts that she not be allowed to marry as a woman), if not in fact. Yes, that's somewhat condescending, but I think that any transsexual seeking court recognition of gender transition could live with it if it appeared in her gender transition court order. Think about it. Does Title VII actually make anyone who really believes that non-white, non-Christian, non-males are not equal to white Christian males believe that, in fact, the former are equal to the latter? Of course not. But, Title VII does say that they are equal in law.
And , like it or not, that's what matters.
And, believe it or not, fourteen years before In re Leber, there was In re Businger. Little is known about Margrith Businger other than a few paragraphs about her and her case that appear in the Leber decision and elsewhere in de Savitsch's book. However, because of her transition, in 1945 there was already precedent for legal recognition of gender transition.
One significant fact about Businger was contained in the book, though. At the time of her petition she was pre-op! (She had undergone an orchiectomy, but that is usually not sufficient to be classified as post-op by any legal mechanism that draws distinctions between pre-ops and post-ops.)
Putting this in chronological perspective for lawyers and judges who are either unable or unwilling to do the research themselves: while Babe Ruth was still patrolling the outfield at Yankee Stadium, a court had already recognized the legal reality of transsexualism and had approved a pre-op gender transition.
Ms. Businger paved the way for Ms. Leber. Now, its up to the legal practitioners of today to use Leber to pave over Corbett v. Corbett, In re Ladrach and Littleton v. Prange.
Twelve years after Ms. Leber's legal gender transition, her psychiatrist, Dr. Otto Riggenbach, concluded an evaluation of her with the following statement: "The operation, on the one part, combined with the permission of the authorities to change her civic status, on the other, has turned an unstable and unhappy individual into a useful and contented member of society."
A useful and contented member of society.
Gee - we can't have that now can we? That would just make too much sense.
(fn. 1) Duncan Fallowell & April Ashley, April Ashley's Odyssey (1982)
(fn. 2) Requete de A.-L. Leber, 8 Recueil De Jugements Du Tribunal CantonalDe La Republique Et Canton De Neuchatel 536 (1945).
(fn. 3) Douglas K. Smith, Transsexualism, Sex Reassignment Surgery, and the Law, 56 CORNELL L. REV. 963 (1971). After my article was published in the Texas Triangle in February I became aware of one other law review article that references the Leber case: D. Douglas Cotton, Note, Ulane v. Eastern Airlines: Title VII and Transsexualism, 80 Nw. U. L. Rev. 1037 (1986).
Katrina C. Rose is a Texas attorney, now living in Minnesota - where she nearly froze her unwanted male-esque genitals off while walking across the University of Minnesota campus in 5 degree (below zero) weather walking to the campus medical library which has a copy of Eugene de Savitsch's book. You can reach her at firstname.lastname@example.org .
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