Sex Change Operation

Sex change Operation and its legal consequences
By Rohit U. Erande**
Cite as: (2007) PL Dec. 9

In India, there are incidences, there seems to be no precedent, which deals with the issue of effect of sex change by a man or woman. However, the issue of sex change came before His Lordship in England and the case is reported in Corbett v. Corbett (otherwise Ashley)1 (hereinafter referred to as “the said case”) where the issue was whether a person who was a male at the time of birth who subsequently underwent a sex change operation, is a woman?

The facts of the said case in a nutshell are as under:
The petitioner filed the said petition praying inter alia therein for a declaration that the ceremony of marriage which took place in Gibraltar on 10-9-1963 between himself and the respondent, then known as April Ashley, was null and void and of no effect as the respondent at the time of marriage was a person of male sex; or in alternative for a decree of nullity on the ground that the marriage was never consummated owing to the incapacity or wilful refusal of the respondent to consummate it.

The respondent in her answer also asked for a decree of nullity on the ground of either the petitioner’s incapacity or wilful refusal of the respondent to consummate the marriage.

In the instant case, the respondent then known as April Ashley, a male person, underwent a sex change operation on 11-5-1960,
“which consisted in the amputation of the testicles and most of the scrotum, and the construction of a so-called ‘artificial vagina’, by making an opening in front of the anus, and turning in the skin of the penis after removing the muscle and other tissues from it, to form a pouch or cavity occupying approximately the position of the vagina in a female, that is between the bladder and the rectum. Parts of the scrotum were used to produce an approximation in appearance to female external genitalia.2”

There were mainly two issues involved in the case. The primary issue was of the validity of the marriage, which depends upon the true sex of the respondent; and the secondary issue of the incapacity of the parties, or their respective willingness or unwillingness, to consummate the marriage, if there was a valid marriage at all. Voluminous evidence was recorded from both the sides. Both the sides called three leading medical experts to deal with the intricate medical issues relating to various aspects of anatomical and psychological abnormality.

After hearing both the sides and after going through the quality medical evidence lead by both the sides, His Lordship Ormrod, J. held that:

1. Marriage being essentially a relationship between man and a woman, the validity of the marriage depended on whether the respondent was or was not a woman and the respondent being a biological male from birth, the so-called marriage was void.3
2. With regard to non-consummation (assuming the marriage to be valid), the respondent was physically incapable of consummating a marriage as intercourse using the completely artificially constructed cavity could never constitute true intercourse.4
3. * * * His Lordship applied the mischief rule of interpretation as there was no statutory provision nor any precedent on this aspect and therefore it was held that even though the respondent who had undergone sex change operation from male to female was still considered as biologically male as merely replacing or cutting of human copulation organ does not make a man a woman.

Signs of abnormalities
To undergo a sex change operation is sign of psychological abnormalities. His Lordship Ormrod, J. has dealt with each aspect of the present issue. There are two kinds of psychological abnormalities, which are recognised, the transvestite and the transsexual.

The transvestite is an individual (nearly, if not always a man) who has an intense desire to dress up in the clothes of the opposite sex. This is intermittent in character and is not accompanied by a corresponding urge to live as or pass as a member of the opposite sex at all times. The transvestite males are usually heterosexual, often married, and have no wish to cease to play the male role in sexual activity.

“The transsexual on the other hand, has an extremely powerful urge to become a member of the opposite sex to the fullest extent which is possible. They give a history, dating back to early childhood, of seeing themselves as members of the opposite sex which persists in spite of their being brought up normally in their own sex.5” (emphasis supplied)

Indian issue
In India, there is no law that authorises sex change operation nor any legal precedent so far has been developed, but there are the instances of sex change operation, which are increasing day by day in India. Such sex change operation gives rise to many legal issues, which are required to be adequately dealt with.

A couple of years back, all the news channels as well as newspapers6 were showing only one breaking news regarding a property dispute that started because of a sex change operation of Aparna Mafatlal to Ajay Mafatlal of Mafatlal family. It has brought into limelight somewhat less discussed issue of sex change operation and its medical and legal consequences. Many doctors and others from medical fields have already spent acres of ink on the medical consequences and effects of such operation. However, here we shall be discussing about legal consequences, which may arise after such operation.

The legal repercussions of such operation are numerous and herein is an attempt to summarise the legal issues, which may crop up owing to the sex change operation:

The Penal Code, 1860
The definition of rape7 will be required to be amended as the issue will arise whether the person who has undergone sex change operation from male to female as happened in Corbett v. Corbett1 is a female in the eye of the law and whether an offence of rape can be committed against her?

Similarly, Section 3778 IPC deals with unnatural offence. Thus if any person gets his sex changed, for instance, man becomes a woman i.e. to say undergoes sex change operation9 and has a intercourse with the person of same sex of which he/she is after such operation, then certainly it will come within the purview of Section 377 and will be liable to be punished accordingly.

Then comes the question of adultery.10 Thus a man who has become a female by operating himself and marries another man, then whether he can be treated as the “wife” as contemplated in Section 497 as well as Section 49811 IPC?

Likewise, a woman who has become a man after sex change operation can be treated as “husband” as contemplated in Section 498-A12 IPC?

Similarly, Section 125 of the Criminal Procedure Code, 1973 will have direct impact and to be more precise, the definition of “wife” as contemplated in that section will have to be reconsidered. The Supreme Court has already held13 that: (SCC p. 536, para 6)
This section has been enacted in the interest of a wife and one who wishes to take the benefit of sub-section (1)(a) has to establish the necessary condition, namely, that she is the “wife” of the person concerned. Once the right under the section is established by proof of necessary conditions mentioned therein, it cannot be defeated by further reference to personal law.

Thus, if the husband converts himself to a woman, then can the wife claim maintenance under this section?

Personal laws
All personal laws relating to marriage and succession will have direct impact of such operation. Say for instance, the question which has occurred in Corbett case1 may also occur in India and the Hindu Marriage Act (and all other personal laws relating to marriage) will require to be amended, because the man who becomes a woman or vice versa, after sex change operation, the existing law will not be of any help in questions of maintenance, grounds of divorce and custody of children.

Similarly, the valid conditions including the capacity of a male and female for adoption as contemplated under the Hindu Adoptions and Maintenance Act, 1956 will be required to be changed. Otherwise, a man adopts a son and there is no gap of 21 years between them, who subsequently changes himself into a woman, will the adoption be void owing to provisions of Section 11 of the said Act?

The most devastating effects will be on the Hindu Succession Act (including other personal Acts of succession). As far as the Hindu Succession Act is concerned, the sex change operation of a person will have direct effect on the degree of succession as mentioned in Class I and Class II heirs. Take for instance Section 8 of the said Act which enacts that the property of a male Hindu “dying intestate” shall devolve according to the provisions of the Act. A woman who has undergone sex change operation thereby converting herself to a man or vice versa, can come within the purview of Section 8? It will also have impact on Section 14, which provides that:
“14. (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.”

Similarly, take Section 23 of the said Act. Though Section 2314 of the Hindu Succession Act has been deleted by new amendment, thereby making all daughters, including married ones, coparceners in joint family property this section has not been given retrospective operation. It is a cardinal principle of interpretation that statutes dealing with succession are not applicable to already open successions because the effect of its application will be to divest the estate from persons in whom it had become vested prior to a new statute coming into force and it was held by the Supreme Court while dealing with Section 8 of the said Act in Eramma v. Veerupana15 and thus a woman undergoing a sex change operation and converting herself to a man can give a go-by to Section 23 of the Hindu Succession Act!

Labour laws
The labour and industrial laws will also be directly affected mostly as certain strange legal issues will crop up which may include, in case of the Workmen’s Compensation Act, 1923, the question of dependency in case of compensation, in case of the Factories Act, 1948, the question of working hours of men and women. Not only that, but the problem of reservations in the jobs on the basis of sex will take another twist.

Taxing statutes
Say for example various beneficial provisions like tax exemptions, which are available to women only under the Income Tax Act, can be still claimed by them after sex change operation?

Sex change operation and other countries
Till today not all countries in the world have legally recognised the sex change operation and still, in most of the countries, the sex which is recorded on birth certificate is only recognised. In most of the countries, legally as well as socially or morally sex change operations are prohibited. In USA (Chicago, Illinois)16 the court held that a transgender male cannot be granted parental rights because same sex marriages are illegal in Illinois and therefore the man was never the boy’s legitimate father. Justice Gerald Bender agreed that though the boy had established a bond with his “father”, the man had no legal standing to seek custody. In the instant case, the man who was born with a female anatomy began hormone therapy 24 years ago at the age of 18. Both the ovaries and uterus were removed in the year 1991 and the birth certificate was changed to reflect the gender correction. The child was conceived through artificial insemination and the contract was entered between parents to raise the child. The court observed that man had not yet undergone reconstructive surgery and was still considered legally a woman. In Britain, in 2003, the Bill was to be introduced whereby transsexuals were to be given the legal right to marry and have the gender changed on their birth certificate. Bill will also introduce laws which mean that employees cannot demand to know a person’s sexual history and that anyone has gone through a sex change should be treated as the sex they are after operation. It will also say that insurance companies must treat transsexuals as the sex of their choice and that the Government must allow men who have changed their sex to female to State pension at the age of 60.17 In Netherlands sex change operation is permitted by the law, which is relief for transsexuals. In Gulf countries also, such kind of operations are legally as well as socially prohibited.

Society and the transsexuals
The good part of such kind of operations has to be considered from the point of view of the transsexuals. Day by day, the percentage of transsexuals who are performing such operation is going up. The experts also agree that sex change operation of a woman to a man is very difficult and challenging as compared to operation of man to a woman. The sex change operation is not the panacea for all the problems of transsexuals. However, at least it helps the transsexuals to come out of the trauma in which they were living prior to the operation. They become more stable on physical as well as mental levels. However, transsexuals also have to face number of problems that may include physical/mental problems owing to such operation. Similarly, such problems may also include public ridicule, instability on family front, etc.

Conclusion
This issue is very vast and has many angles. This is a short or maiden attempt to study the legal consequences arising out of such operation. It is always to be kept in mind that the persons who have undergone such sex change operation remain human beings even after such operation and thus the fundamental rights as guaranteed by our Constitution will be available to them.

Now coming back to its consequences, it is not possible to cover or summarise all the legal, social issues arising out of such operation. The problems as stated hereinabove may not arise or may be hypothetical, but possibility of their happening also cannot be denied. In India, the social conditions are such that it is very difficult to accept anybody after sex change operation and thus it is morally condemned. Nevertheless, still, the sex change operations are increasing with a steady growth, but, on this count also, there is a monopoly of rich and famous as such operations are very costly and unaffordable by common people!

The decision in Corbett case1 is not binding on Indian courts, but still it does not lose its persuasive value. Till today, Indian courts have not been confronted with such intricate problem, but the day is not so far. Thus, now the time has come for the Indian Parliament to legislate on this new topic. The Law Commission should call for national debate on this issue. Absence of any such law is not going to stop such operations being performed. Thus, such operations are either required to be legalised or have to be declared as non est and void in the eye of the law.

* Advocate

1. (1971) P 83 : (1970) 2 WLR 1306 : (1970) 2 All ER 33
2. Id. at 36g-h
3. Supra p. 49a, post
4. Supra p. 49h, post
5. Supra fn 1, p. 42d-f, post
6. See Times of India — Pune Times, 12th November, 2005 issue
7. Section 375 IPC
8. “377. Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished….”
9.  Like, supra fn 2
10. Section 497 IPC: “497. Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery….”
11.  “498. Enticing or taking away or detaining with criminal intent a married woman.—…”
12. “498-A. Husband or relative of husband of a woman subjecting her to cruelty.—…” Yamunabai Anantrao Adhav v. Anatrao Shivram Adhav, (1988) 1 SCC 530 : 1988 SCC (Cri) 182
13. Section 23 provided that a female Hindu could not file a suit for partition of a dwelling house unless the male heir chooses to divide their respective shares therein and such woman had a right of residence in that dwelling house only if she is unmarried or divorced or widow.
14. AIR 1966 SC 1879