The Lawfulness of Gender Reassignment Surgery

In the common law world, both the medical and legal professions initially considered gender reassignment surgery to be unlawful when first practised and discussed in the first half of the twentieth century. While most medical procedures are covered by the medical exception to the law governing serious offences against the person, many doctors and the lawyers they consulted doubted that this exception applied to gender reassignment surgery. In this article I trace the differing and changing interpretations of the medical exception as applied to gender reassignment surgery, and the shift towards legal acceptance in the two common law jurisdictions that led the way in both performing gender reassignment surgery and debating its legality, the United States and the United Kingdom. Although this shift occurred without formal legal intervention either through legislation or judicial decision (for example on a test case), inferences of legality drawn from related civil-law decisions bolstered the legal acceptance of gender reassignment surgery.By increasing the suffering of patients and potential patients, the criminal law played both an important and primarily malign role prior to the eventual public, professional and legal acceptance of GRS. A real threat of criminal prosecution inhibited doctors from proceeding, distorted diagnoses and affected the kinds of procedures performed. After-care was expanded and manipulated to avoid the risk of prosecution or the appearance of unlawful surgery. By contrast, civil and administrative law played a more positive, albeit indirect, role in interpreting the medical exception and its application to gender reassignment surgery.