Medical Articles on the Littleton Case
and Related Articles on
Gender Determination and Human Rights

Texas Supreme Court
PO Box 12248
Austin, TX 78711

Dear Sir or Madam,

Re: Medical Information Letter about the Current Case entitled “Littleton v Prang”.

I am writing from England and do not know if this is the proper way to provide information to the court. Since I am overseas, if you could copy and forward my letter to whomever it needs to go, I would be most appreciative.

I am a Senior Lecturer in Law, Doctor of Philosophy (in Law) and I sit on the Parliamentary Forum concerned with issues relating to the legal status and rights of transsexual people, chaired by Dr Lynne Jones MP. The Parliamentary Forum was set up in 1995 with the objectives to address and seek solutions to the problems faced by transsexual people within the United Kingdom because of their dubious legal status. The Forum which has met several times has supported the reading of the Gender Identity (Registration and Civil Status) Bill [1996] which in turn led to a report from the Cabinet Office of Public Service which identified the legal issues of concern.

I am also advisor to the Government Home Office-led Working Group, which is currently looking at the issues relating to legal registration of the change of gender role for transsexual people. The Working Group's report will be published later this month (April 2000).

Further, I am Chair of the legal Committee of the Harry Benjamin International Gender Dysphoria Association (HBIGDA) Legal Committee. The HBIGDA is a professional organisation devoted to the understanding and treatment of gender identity disorders. There are approximately 300 members from around the world from the fields of psychiatry, endocrinology, surgery, psychology, law, sociology, and counselling. The HBIGDA provides avenues for scientific interchange through its biannual conferences and publications. The HBIGDA is responsible for establishing Standards of Care for the treatment of gender identity disorders. These standards are internationally accepted guidelines that promote the health and welfare of individuals with gender dysphoria.

I have been reading about the Texas case of Littleton v Prang, involving a transsexual woman; Ms Littleton, who had a neo-vagina surgically created over 20 years ago. As I further understand it 10 years or so ago she married a man with a penis in another of your States. I understand, the Texas Courts have declared this marriage void and that Ms Littleton has been declared to be legally male, for the purposes of marriage. This is a very similar decision to that made in the 1971 English case of Corbett v Corbett which invoked 'chromosomal, gonadal, and genital' tests to define the legal sex of the plaintiff. This resulted in an astoundingly complex legal situation whereby transsexual people in Britain not only face great social stigma but, for example, some same sex marriages are now legal; transsexual women are legally able to marry non-transsexual women. It is because of the legal anomalies that have resulted from that decision that the Government Working Party was set up here in Britian. However I would like to comment on the decision in Littleton v Prang in my role as chair of the HBIGDA Legal Committee.

The position of the HBIGDA Legal Committee, after taking advice from other specialists, is that Gender Identity Disorder (transsexualism) is a medical condition resulting from a disorder of sexual differentiation; the processes of becoming man or woman as we conventionally understand it. In a paper given to the Council of Europe's XXIIIrd Colloquy on European Law, Professor Louis Gooren has suggested that "there is now evidence to believe that in transsexuals the differentiation process of the brain taking place in the first years after birth has not followed the course anticipated of the preceding criteria of sex (the chromosomal, gonadal, and genital features)".

Thus, although sex assignment at birth by the criterion of the external genitalia is statistically reliable, in people experiencing transsexualism it is not: they are exceptions to the statistical rule. Most recently, a study has been carried out of a region in the hypothalamus of the brain that is smaller in women than in men . Strikingly, the region was of female size or smaller in six male-to-female transsexuals, regardless of hormone treatment. This result supports the hypothesis that gender identity stems from an interaction between the developing brain and sex hormones . Current medical knowledge recognises that an absolute aetiology for transsexualism is not available although the present weight of evidence is in favour of a biologically-based, multifactorial causality. It is considered, therefore, that scientific knowledge of transsexualism has progressed considerably since Corbett v Corbett and that the evidence presented there is no longer reliable.

Consequently to insist that a transsexual person remains forever, and for the purposes of marriage, the sex designated on their birth certificate is entirely inappropriate. Firstly, such a position shows a clear failure to understand the biological process of sex differentiation and the 'errors' in registration that occur as a result . These may occur not just when a person is transsexual but also in a myriad set of other circumstances wherein people have some intersex aspect to one or more of their sex characteristics. Secondly it affords an inconsistency in the law, in particular, in relation to marriage, allowing same sex marriage to become a legal possibility. Throughout most of Europe this legal anomaly has been put to rest, with all of the signatory states to the European Convention on Human Rights, apart from the UK, Ireland, Luxembourg and Albania now providing mechanisms whereby the new sex of the transsexual person can be recognised for all purposes including marriage. I am certain that with the report of the Government Working group, it shall not be long before we also see these legal anomalies being rectified here in the UK.

The position of the HBIGDA Legal Committee is that the determination of sex for the purposes of law must remain in the hands of those who are knowledgeable in medical science and not in hands of courts or parliaments. The legal determination of sex lies with the emerging discoveries of the location of the brain's gender identity, and until that is firmly established by medical research, then it must remain for the courts to seek the advice of medical practitioners who have expertise in the area of intersex and gender identity medicine. The determination of chromosomes and gonads pose too many problems, with far too many people (such as women with androgen insensitivity syndrome) falling outside of the test resulting from the Corbett v Corbett decision, and as a result being left with an indeterminate sex for many legal purposes. Furthermore it should be that genetic information, containing these details, should be confidential as your own American Medical Association's Code of Medical Ethics states.

I have enclosed for your information a short paper on the current scientific position on the process of sex determination, and we hope that this will help you make a decision that recognises the complexities in this area. 

Yours sincerely

Stephen Whittle, PhD, MA, LLB, BA
Senior Lecturer in Law
Chair of the HBIGDA Legal Committee

Process of Sex Differentiation in the Human

Traditionally it is assumed that sexual differentiation, the process of becoming man or woman is completed with the formation of the external genitalia, the criterion used to assign a newborn child to the male or female sex. From the beginning of this century it became clear in laboratory animals that this is not the endpoint of the sexual differentiation process but that also the brain undergoes a sexual differentiation into male and female, largely predicting/correlating with future sexual and non-sexual behaviour.

The process of sexual differentiation takes place in distinct steps, first the chromosomal configuration is established, next gonadal differentiation, next differentiation of the internal and external genitalia and finally the differentiation of the brain into male or female. Normally all steps in the process of sexual differentiation are concordant; ? in men: an XY chromosomal pattern, testis, male internal and external genitalia and a male brain differentiation being the substrate of male type behaviour; ? in women an XX chromosomal pattern, ovary, female internal and external genitalia and a female brain differentiation being the substrate of female-type behaviour).

It is remarkable but in some mammalian species this process of brain sexual differentiation takes place after birth. The Dutch scientists Swaab and Hofman have shown that one brain structure, that is different between men and women, becomes only sex-dimorphic between the ages of two and four years, well after birth and long after assignment to the male or female sex has taken place. Nature is not free of errors and the process of sexual differentiation is no exception. There are human beings in whom not all traditional criteria of sex are concordant. They may have some biological characteristics of one sex and some of the others, a condition known as intersexed.

The human condition requires that newborns are assigned to one sex or the other. The social and the legal system has left no room for intersexed subjects. If a newborn child presents with an intersexed condition a medical decision must be made to assign this baby to the male or female sex. It is now a generally accepted medical practice to assign an intersexed newborn to that sex in which the unlucky child, on the basis of medical expertise and reasonable expectation, will function best. It is of note that biological characteristics are not imperative in this decision process. The decision is based on prognosticated future sexual and nonsexual functioning. The legal system registers these newborn children in accordance with the medical decision. Thus, it is no longer tenable to claim that the genetic or gonadal criterion determines one's status as male or female.

Some intersex conditions are such that they can not even be determined at birth and are only discovered much later at puberty. As such some of our fellow human beings live (unbeknown to all but their medical practitioner) their lives as women but with a male-type XY chromosomal pattern or testis and vice versa.

Sexual and non-sexual brain differentiation is now accepted as part of the process of becoming male or female in the mammalian species to which humans belong. In animal experimentation it is easily possible to induce a female type of sexual and nonsexual behaviour in animals that have, up to that final stage of sexual differentiation, a completely male pattern and vice versa. Depending on the type of manipulation applied in the animal experiment, in-between types of behaviour can also be observed. On the basis of the findings of these experiments it has been hypothesised that in human subjects with gender identity problems the sexual differentiation of their brains has not followed the pattern predicted by their earlier steps in the the sexual differentiation process (such as chromosomes, gonad, genitalia) but has followed a pattern typical of the opposite sex in the final stage of that differentiation process; as indicated above, a situation that can be induced in laboratory animals by experimental manipulation. Generalisations of biological principles between the different members of the mammalian species must be done with caution, but they cannot be totally dismissed. Medicine has progressed enormously by animal experimentation using this extrapolation from other mammalian species to the human. The validity of extrapolation of the sexual differentiation process of the brain in other mammals to the human has been corroborated by findings of anatomical and functional brain differences between males and females, including the human species. The collection of data in the human has been, and is, still slow due to obvious ethical restrictions on collecting brain material for research.

Interestingly, Zhou, Swaab, Gooren & Hofman published, in 1995, a scientific report that demonstrated that in one of the human brain structures that is different between men and women, a totally female pattern was encountered in six male-to-female transsexuals. They were able to show that this was not due to the transsexuals' previous cross-sex hormone treatment. These findings showed that a biological structure in the brain distinguishes male-to-female transsexuals from men. The findings were published in the leading scientific journal (Nature) with a rigorous scientific review process, which would not have overlooked essential scientific biases in the design and interpretation of the experiment. 

In conclusion:

Since there is evidence that the sexual differentiation of the brain in the human occurs (also) after birth it is unavoidable that in subjects with errors of the sexual differentiation of the brain, conclusive sex assignment (which currently takes places at birth) should sometimes take place much later in their lives since it requires a large amount of life experience to discover the predicament of being born in the wrong sex. In other words having sexual and non-sexual brain patterns that are in contradiction with the other sex characteristics. Like other people afflicted with disorders in this process of sex differentiation, transsexual people need to be medically, socially and legally rehabilitated so that they can live acceptable lives as men or women.

This decision is not essentially different from the one made in cases of intersexed children where assignment takes place to the sex in which they in all likelihood will function best. In the case of a intersexed child it is often possible to tell at birth that the sexual differentiation process has not taken place in a conventional way and so it is possible to make that decision to assign a sex through medical intervention shortly after birth.

The decision to recommend hormonal and surgical treatment for a transsexual person takes place much later in life and is based on the conclusion of a thorough psychodiagnostic process that concludes that a disorder has occurred in the process of sexual differentiation and that the person will benefit from hormonal and surgical sex assignment. There is never any disagreement, amongst medical experts in this area, that the expenses of sex assignment at that stage should be borne by the relevant health insurance.

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