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Legal gender

Legal gender, or legal sex, is a sex or gender that is recognized under the law. Biological sex, sex reassignment and gender identity are used to determine legal gender. The details vary by jurisdiction. Legal gender identity is fundamental to many legal rights and obligations, including access to healthcare, work, and family relationships, as well as issues of personal identification and documentation. The complexities involved in determining legal gender, despite the seeming simplicity of the underlying principles, highlight the dynamic interaction between biological characteristics, self-identified gender identity, societal norms, and changing legal standards. Because of this, the study of legal gender is a complex field that is influenced by cultural, historical, and legal factors. As such, a thorough investigation is necessary to fully understand the subject's implications and breadth within a range of legal systems and societies.

Countries recognising gender self-identification for legal gender; sub-national entities are not marked
World map of non-binary gender recognition

History

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In European societies, Roman law, post-classical canon law, and later common law, referred to a person's sex as male, female or hermaphrodite, with legal rights as male or female depending on the characteristics that appeared most dominant. Under Roman law, a hermaphrodite had to be classed as either male or female.[1] The 12th-century Decretum Gratiani states that "Whether an hermaphrodite may witness a testament, depends on which sex prevails".[2][3][4] The foundation of common law, the 16th Century Institutes of the Lawes of England, described how a hermaphrodite could inherit "either as male or female, according to that kind of sexe which doth prevaile."[5][6] Legal cases where legal sex was placed in doubt have been described over the centuries.

In 1930, Lili Elbe received sexual reassignment surgery and an ovary transplant and changed her legal gender as female[citation needed]. In 1931, Dora Richter received removal of the penis and vaginoplasty. A few weeks after Lili Elbe had her final surgery including uterus transplant and vaginoplasty. Immune rejection from transplanted uterus caused her death[citation needed]. In May 1933, the Institute for Sexual Research was attacked by Nazis, losing any surviving records about Richter[citation needed].

Toni Ebel and her partner Charlotte Charlaque, who were both other German sexual reassignment surgery recipients, were forced to separate in 1942 after harassment from their neighbors.[7]

After World War II, transgender issues received public attention again. Legislation in the 1950s and 60s primarily focused on criminalizing homosexuality and enforcing heteronormative gender roles, leading to disproportionate police harassment and arrests of gender non-conforming individuals[citation needed]. Christine Jorgensen was unable to marry a man because her birth certificate listed her as male. Some transgender people changed their birth certificates, but the validity of these documents were challenged. In the United Kingdom, Sir Ewan Forbes' case recognized the process of legal gender change. However. legal gender change was not recognized in Corbett v Corbett.The 1969 Stonewall Uprising marked a pivotal moment in the gay rights movement, sparking protests and marches globally and underscoring ongoing discrimination and violence against LGBT individuals.

Today, many jurisdictions allow transgender individuals to change their legal gender, but some jurisdictions require sterilization, childlessness or an unmarried status for legal gender change.[8] In some cases, gender-affirming surgery is a requirement for legal recognition.[9]

See also

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References

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  1. ^ Roller, Lynn E. (1997). "The Ideology of the Eunuch Priest". Gender & History. 9 (3): 542–559. doi:10.1111/1468-0424.00075. S2CID 143133728.
  2. ^ Decretum Gratiani, C. 4, q. 2 et 3, c. 3
  3. ^ "Decretum Gratiani (Kirchenrechtssammlung)". Bayerische StaatsBibliothek (Bavarian State Library). February 5, 2009. Archived from the original on December 20, 2016.
  4. ^ Raming, Ida; Macy, Gary; Bernard J, Cook (2004). A History of Women and Ordination. Scarecrow Press. p. 113.
  5. ^ E Coke, The First Part of the Institutes of the Laws of England, Institutes 8.a. (1st Am. Ed. 1812) (16th European ed. 1812).
  6. ^ Greenberg, Julie (1999). "Defining Male and Female: Intersexuality and the Collision Between Law and Biology". Arizona Law Review. 41: 277–278. SSRN 896307.
  7. ^ Wolfert, Raimund (2021). Charlotte Charlaque : Transfrau, Laienschauspielerin, "Königin der Brooklyn Heights Promenade" (in German) (1. Auflage ed.). Leipzig. ISBN 978-3-95565-475-7. OCLC 1286534661.{{cite book}}: CS1 maint: location missing publisher (link)
  8. ^ "Many Trans People Must Choose: Sterilization, or Legal Recognition?". www.opensocietyfoundations.org. November 2015. Retrieved 18 April 2024.
  9. ^ "S Korean court: Discharge of late transgender soldier unjust". Associated Press. 7 October 2021.

10. Davidson, M. (2022) Transgender Legal Battles: A Timeline, JSTOR Daily. Available at: https://daily.jstor.org/transgender-legal-battles-a-timeline/.

11. Morris, B. (2023, March 16). A brief history of lesbian, gay, bisexual, and transgender social movements. American Psychological Association. https://www.apa.org/topics/lgbtq/history

‌12. Trans rights progress in Asia hits barricade of tradition, legal maze. (n.d.). Nikkei Asia. https://asia.nikkei.com/Spotlight/Asia-Insight/Trans-rights-progress-in-Asia-hits-barricade-of-tradition-legal-maze

‌13. O’Connor, A. M., Seunik, M., Radi, B., Matthyse, L., Gable, L., Huffstetler, H. E., & Meier, B. M. (2022). Transcending the Gender Binary under International Law: Advancing Health-Related Human Rights for Trans* Populations. Journal of Law, Medicine & Ethics, 50(3), 409–424. https://doi.org/10.1017/jme.2022.84

‌14. Divan, V., Cortez, C., Smelyanskaya, M., & Keatley, J. (2016). Transgender social inclusion and equality: A pivotal path to development. Journal of the International AIDS Society, 19(3). https://doi.org/10.7448/ias.19.3.20803

‌15. Gerritse, K., Hartman, L. A., Bremmer, M. A., Kreukels, B. P. C., & Molewijk, B. C. (2021). Decision-making approaches in transgender healthcare: conceptual analysis and ethical implications. Medicine, Health Care and Philosophy. https://doi.org/10.1007/s11019-021-10023-6

16. Jain, D., & DasGupta, D. (2021). Law, gender identity, and the uses of human rights: The paradox of recognition in South Asia. Journal of Human Rights, 20(1), 110–126. https://doi.org/10.1080/14754835.2020.1845129

17. "Japan Passes Law to 'Promote Understanding' of LGBT People | Human Rights Watch". 2023-07-12. Retrieved 2024-04-24.

18. Victory for Transgender Rights in Japan | Human Rights Watch". 2023-10-25. Retrieved 2024-04-24.

19. Li Ka Hang, Vanessa (2023-10-30). "Rethinking Gender Recognition in Hong Kong and the Way Forward". Journal of Law and Jurisprudence. 12 (1). doi:10.14324/111.444.2052-1871.1556. ISSN 2052-1871.

20. Bhattacharya, Shamayeta; Ghosh, Debarchana; Purkayastha, Bandana (2022-10-07). "'Transgender Persons (Protection of Rights) Act' of India: An Analysis of Substantive Access to Rights of a Transgender Community". Journal of Human Rights Practice. 14 (2): 676–697. doi:10.1093/jhuman/huac004. ISSN 1757-9627. PMC 9555747. PMID 36246149.

21. "Gender Reassignment". dph.illinois.gov. Retrieved 2024-04-24.

22. thisisloyal.com, Loyal |. "The Impact of 2024 Anti-Transgender Legislation on Youth". Williams Institute. Retrieved 2024-04-24.


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