Tsai Wen-ting /tr. by David Mayer
Do people with gender disorder have to do military service? Can transsexuals get married? For transsexuals, the desire to change sex often goes as far back as they can remember. What are the legal rights and responsibilities of people with a desire to switch gender? How about those who have already done so?
You'd never guess from Tsai Ya-ting's name that he is a "he," nor would you get that impression by looking at him, with his feminine couture and long, flowing hair. He's been cross-dressing for years. But when he recently showed up in his accustomed feminine mode to apply for a new national ID card, the Ministry of the Interior refused the application, stating that his appearance "would make it difficult to identify the person." So he went back home, remade his face with big, thick eyebrows, tied his hair back, and went to the photographer again. But the photographer asked: "What are you doing getting your picture taken as a man?" It took a masculine photo to satisfy the rule-bound bureaucrats at the Ministry of the Interior, but the ID card now bears precious little resemblance to the person who carries it around every day!
This "guy" named Tsai
Chang Hung-cheng, a legal scholar who wrote his master's thesis on the constitutional basis for protection of the equal rights of homosexuals, notes that transsexuals have long been the focus of legal controversy in countries throughout the world. Some have argued that sex change operations violate public morals, and judicial authorities in some cases have refused to allow them, citing the lack of any legal basis. Sweden, Germany, Italy, Turkey, and the Netherlands have all passed legislation dealing specifically with sex change operations. "But in Taiwan," says Chang, "the issue of transsexualism hasn't received much attention, so the legal rights and responsibilities of transsexuals are not clear."
Taiwan's Supreme Court has ruled that the freedom to change one's name is a basic right of ROC citizens, which is why Tsai Ya-ting is able to have a woman's name on his ID card. So why can't he use a woman's photo on that same card? After all, he dresses as a woman every day.
For a person with gender disorder, the biggest problem of all is the conflict between his physiological sex and his psychological gender. The toughest time of all, says Chang, is "especially the period of adjustment that a person goes through prior to a sex change." What if a woman who feels like a man uses the men's restroom? What if a male transvestite gets a job in a women's sauna? Will people get upset or frightened?
Chang, who has been pushing hard for protection of the rights of the gender-identity minority, reports: "Overseas, people with gender disorder who are going through the adjustment stage are allowed to conduct their affairs in accordance with their psychological gender identity, with the proviso that if they take advantage of their status to commit a crime, the penalties will be stiffer."
Bathing with men
The question of whether homosexuals should serve in the military has long generated controversy. Laws were amended many times before it was finally determined in 1995 that they must serve. For many men who feel like women, time spent in the military will be the most painful experience of their lives, especially the frenetic "combat showers," where young men are ordered to shower en masse in an impossibly short time. Chung Ling, a former man who is now a mother, recalls the misery of her days in the army: "I was a girl bathing together with a whole lot of guys." She was often punished for refusing to shower.
Chang reports that the "Standards for Physical Condition Categorization," adopted by the Ministry of National Defense and the Ministry of the Interior, provide that anyone who is diagnosed by a psychologist at a public hospital as having a gender identity disorder may be exempted from military service if, after re-examination by the Tri-Service General Hospital, the person in question is placed in the Class 5 category for physical condition. (By definition, those in Class 5 are exempt from military service.) But most young transsexual men go ahead and put in their military service, perhaps because they are unaware of this legal provision, perhaps because they are unwilling to come out of the closet, or perhaps because they can't get the necessary diagnosis.
Taiwan legalized sex change operations in 1988, but the new law contains no clear provisions regarding a host of peripheral issues, so hospitals simply go on the basis of a set of commonly accepted practices. One of the most controversial of these is a rule (peculiar to Taiwan) requiring parental approval, which has prompted many transsexuals to have operations overseas. Another key bone of contention is the practice of performing the operations only on people under the age of 40. In the United States, a 67-year-old man once had a sex change operation so that he would at least be able to "die a granny."
After having a sex change operation, a person receives a sex change certificate from the doctor, which he or she can take to the household registration authorities to get a new ID card and amend his or her household registration information (for example, by changing "eldest son" to "eldest daughter").
However, a sex change operation does not resolve a transsexual's legal difficulties.
After changing sex, is it illegal for transsexuals to marry without revealing their former gender? In the state of Kansas, after a man passed away and left part of his estate to his transsexual wife, the man's children sued their mother for fraud. The judge, however, ruled against the children, reasoning that the couple had been married for many years without any discord concerning her transsexual status, and the husband undoubtedly knew the truth on this score, so there must have been true love between them.
Under Taiwan's Civil Code, a marriage must "not involve fraud or coercion," but only a dozen or so transsexuals are currently married in Taiwan, and most of them have been with their partners since before their sex change operations. Thus no one here has ever married a transsexual unknowingly and then sued him or her for the deception.
Apart from military service and marriage, the rights of transsexuals have yet to be squarely addressed with respect to a whole range of issues, including employment, health insurance, and sex crimes. Says Chang: "Transsexual issues are extremely complex. Every case is different in many ways. What we need is an omnibus anti-discrimination law to deal with these issues comprehensively."
Where do we incarcerate someone with a gender identity disorder? When a person undergoes a sex change after having married and had children, will the ID cards of the children have to be amended to show two fathers or two mothers? After a man becomes a woman, is it fair for her to compete as a woman in athletic events?
Respect and understanding on the part of mainstream society is needed for protection of the rights of "people of non-traditional gender." They've got a long ways yet to go, and will be needing our support.