Transgender Legal Advisor
A Few Legal Briefs
By Carolyn Woodward
Got a legal question? Having some problems with the law? TG Attorney Carolyn Woodward will try and answer your questions. Contact her via Email at CarolynWWD@aol.com or message publisher Cindy Martin and we'll make sure she gets your question.
In my last article I wrote about the issue of the validity of pre-existing
marriages of post-op Transsexuals. My conclusion was that if the marriage was
valid at the time it was entered into, then it remained so, and a divorce was
the necessary action to terminate the same. I've recently read that a
southern California court has ruled that this is in fact the case as the
marriage was valid when created.
On that same issue, I was asked a rather interesting question by a couple who
want to stay married even though both partners are now legally women. The
question was whether the government can make them get a divorce.
As of now, the answer is no. A divorce must be initiated by a party to the
marriage (or perhaps a conservator if one is appointed for the person of one
of the parties - but let's not go there for this discussion). The government
has no authority to initiate the dissolution of a marriage which was valid
when entered into. That isn't to say it could not happen if the legislature
and governor decide that the contrary should be the case. Since divorce is a
creature of statute - that is it is controlled by laws passed in the various
states - it is conceivable that the legislature could pass a law which would
require the dissolution of any marriage existing between two persons on the
event of one having sex-reassignment surgery. Now that's a scary thought.
There might be legal grounds to oppose such a statute, but let's hope rather
that the various state legislatures decide to keep their noses out of our
private business (can you tell I'm a Libertarian?) and let each couple decide
whether or not to divorce on their own.
A while back TGForum ran an article by Dr. Sheila Kirk discussing the use of
hormones in lower doses for transgendered persons not seeking transition
and/or SRS. As for me - where do I sign up? Actually, the question is not so
much where, but WHEN can I sign up. If such hormone administration becomes a
reality as a widely accepted option for those not seeking the "full treatment"
it will be after much time and careful research.
Why? Well, one reason would be that a responsible physician is not going to
run out and engage in such a practice without significant studies to give her
an idea, based on strong empirical evience, of what to expect. There are
issues of changes in libido, physical feminization (ie - breast development,
fat distribution), chemical castration, and numerous side effects to consider.
Dr. Kirk was careful to point out that contra-hormonal therapy changes the
body's carefully balanced chemistry in a number of ways, and anticipating
those effects is far from being an exact science.
Another reason would be people like me (I mean generically - I don't do
medical malpractice suits). There are all sorts of opinions as to whether or
not litigation is out of control (I think it is to some extent), but
litigation is a reality of life. When it comes to doctors, many of them
consider it a nightmare environment. Medicine in general is as much art as
science in many areas of practice, yet people tend to hold their doctors to
standards of perfection. That's not possible, but there is standard to which
physicians are held. That would be that they are held to the level of
competence to be found among physicians generally in their community. (Yes,it
is a simplification, but we don't need more for this discussion). If they are
specialists, such as endocrinologists, then the standard is that of other
specialists - usually a higher standard so long as they are working within
their specialty.
So, how does this slow down the availability of this type of hormone therapy?
If it is not generally accepted among physicians who practice this type of
medicine, then a physician who makes it widely available runs the risk of
being sued for failing to execise the level of care expected. For example, if
male who is transgendered wishes to experience some physical feminization, but
wants to retain the ability to maintain an erection, he would approach (we
hope) a qualified endocrinologist who deals with transgendered persons. Now,
there comes the question of whether such a balance is possible to maintain
over the long haul - I personally haven't a clue. But does the doctor? Are
there studies to guide her? Are they extensive? Is this type of therapy
considered responsible, and is it accepted among those physicians who are
experienced with transgendered patients? Are any of these answers "no?" If
so, the doctor runs a great risk of being sued for malpractice if something
goes wrong - and all the informed consent documents in the world won't help if
the therapy is not accepted by the appropriate part of the medical community.
(I'm not talking about the experimental studies wherein the requisite
knowledge and acceptance are established. People in these studies KNOW they
are experimental, and agree to do it anyway and take the risk.)
Like I said, where do I sign up? Alas it will be a while, based on what Dr.
Kirk told us in her article, because extensive studies will be necessary first
to establish the feasibility and limitations of such therapy. It should not
be any other way for reasons of physician responsibility and the legal
ramifications as well. I won't hold my breath, Dr. Kirk, but I'm rooting for
you.
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