變性「人權」知多少?

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2002 / 11月

文‧蔡文婷


變性慾者需不需要當兵?變性人可不可以結婚?變性,是變性人終其一生的追求。然而,對於變性慾者或是已經轉換性別的變性人,法律上的權利義務如何?


這是日前才發生的真人真事:一位已經多年習慣女裝打扮,長髮飄逸的變性慾者蔡雅婷(男),想要以女裝扮相來換發身分證,卻被內政部以「造成辨識當事人困擾」為由拒絕。所以他只好一反常態,畫粗眉毛,將長髮綁在腦後,到相館拍照,卻又遭到相館人員「幹嘛裝成男人拍照?」的質疑。問題是,當蔡雅婷依照內政部的要求,完成一張男性裝扮的身分證,雖然和性別欄的刻板印象符合,但又與活生生的蔡雅婷完全不相符。

蔡雅婷是「他」?

曾以「同性戀者權利平等保障之憲法基礎」為碩士論文的法律研究人員張宏誠表示,有關變性人的法律問題在各國爭論已久,包括變性手術都曾經被認為違反善良公序,或依法無據而被司法機關拒絕。諸如瑞典、德國、義大利、土耳其、荷蘭等國,均制訂有專法來規範變性手術。「然而在台灣,由於變性人的議題並未受關注,相關法律權利義務也有待進一步釐清,」張宏誠表示。

就像蔡雅婷的案例,儘管目前在台灣,根據大法官解釋,姓名變更屬於人民基本權利,因此身分證上還是男性的蔡雅婷可以擁有一個十分女性化的名字,那蔡雅婷為何不能以他最真實的相片來申請身分證?

對一位變性慾者而言,最大的困擾就是,他的身體性別與心理性別認知不一樣,「尤其是變性之前的適應期,」張宏誠指出。當一位自認為是男人的(女)變性者,自若地進入男性廁所,或是女裝打扮的男變性慾者在私秘的女子三溫暖工作,是否又會引起其他人的驚恐?

「在國外,一位變性慾者在適應期中,是被允許以心理性別來行事。但書是,一旦因此犯法,將會加重其刑,」致力於少數性別權利爭取的張宏誠指出。

和一大堆男人共浴?

有關同性戀者是否要當兵?早就引起相當多的爭議,甚至數度修改法條,幾經改訂,於八十四年才確定要當兵。而對自認是女性的性別認同障礙者而言,最痛苦的人生經驗莫過於「當兵」,尤其是洗戰鬥澡。已經變性、並且當了媽媽的變性人鐘玲表示,「那就是一個女生和一大群男生一起共浴,」經常為了不敢洗澡而被罰的鐘玲回憶男性當兵生涯的折磨。

張宏誠表示,其實根據國防部及內政部頒訂的「體位區分標準」,凡經公立醫院心理醫生診斷為性別認同障礙,再經三軍總醫院複檢通過者屬於免疫的戊等體位,可以免除兵役。只是許多變性慾者,或者根本不知道有這樣的法律條文,或許是隱瞞身分,也或許沒有醫院的病例證明,大多還是盡了他男兒身應盡的義務。

台灣於民國七十七年開放變性人手術,然而關於變性手術及變性之後的法律條文卻無明文規定,只有醫院之間的約定俗成。其中最受爭議的是需父母同意的獨門規定,常使得變性慾者前往國外進行手術,而四十歲以下的年齡上限也頗受爭議。在美國也曾經有六十七歲的老先生接受變性手術,因為他希望自己至少能夠以「老婆婆」的模樣死去。

變性之後,變性人帶著醫生開立的性別變更證明,就可以前往戶政機關更換身分證,同時變更戶籍上的家庭排序,例如將長男變為長女等等。

然而,有關變性人的法律問題,並不因變了性就得到解決。

變性議題路迢迢

變性之後,變性人對結婚伴侶隱瞞變性事實,是否違法?其婚姻效力又如何?美國堪薩斯州曾有一變性人的丈夫過世後,因為遺產分配,丈夫的子女控告後母詐欺。然而法官的判定是,過世的丈夫與變性人妻子在多年的實質婚姻中,不曾有過異議,顯示他應當知道實情,兩人之間也有真愛存在,而判子女敗訴。

依照我國民法規定,婚姻的構成要件包括「非詐欺脅迫」這一項,然而目前台灣結婚的變性人大約只有十多位,多數伴侶都陪伴變性人一路走來,未曾有過欺瞞而對簿公堂的例子發生。

性別認同障礙者除了相關兵役、婚姻等法律問題,在職場、醫療保險、性侵害等等權利保障議題上,都還有待正視。「變性人問題十分複雜,每個個案都有許多不同狀況,應該儘速訂定的是一個高位階的『反歧視法』,」張宏誠表示。

一位性別認同障礙者在監獄受刑的收容問題;有過婚姻子女的變性人,變性後,子女的身分證上,是否將出現兩位父親或母親?一個由男變女的變性人,加入女子運動競賽,可有體能上的不公?

「非傳統性別者」的權利保障,建構於社會大眾的尊重和瞭解上,這一條漫漫長路需要你我共同來支持。

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EN

Transsexual Rights

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.

Unaddressed issues

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.

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