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40 U. Colo. L. Rev. 282 (1967-1968)
Transsexuals - Their Legal Sex

handle is hein.journals/ucollr40 and id is 306 raw text is: TRANSSEXUALS-THEIR LEGAL SEX
JOHN P. HOLLOWAY*
Since the beginning of time the layman has recognized but two
physical sexes, male and female. The medical profession, however, has
recognized what might be called a third category of physical sex, which
includes those persons born with an anatomical body containing character-
istics of both male and female sexes.' These persons are medically classi-
fied as hermaphrodites.2 What, then, is a transsexual?3
The transsexual is not hermaphroditic, as he would register male or
female exclusively on all but one test used to medically identify a person's
sex.4 The transsexual is not a homosexual,5 as he or she wishes to partici-
pate in a sexual relationship with a man or woman as a member of the
opposite sex.6
*Resident Legal Counsel, University of Colorado.
1. There are six recognized ways to medically identify a person's sex. These
are (1) chromosomal or nuclear sex; (2) gonadal sex; (3) hormonal or endo-
crinological sex; (4) internal accessory reproduction structures; (5) external
genital morphology; and (6) gender identity or psychosexual identity. For a
full discussion of each, see F. Netter, 4 Endocrine System § IV, in CIBA Collec-
tion of Med. Illus. (1965); F. Netter, 2 Intersexes § XIV, in CIBA Collection of
Med. Illus., (1965). See also J. Money, Hermaphroditism, in Encyclopedia of Sexu-
al Behavior 472, 473 (1961); Stewart, The Clinical Investigation of Intersexuality,
37 Annals of the Royal College of Surgeons of England 374 (1965). The last
sex identification test, i.e., gender identity, has been described by Dr. Money as
probably existing in the brain, in much the same manner as does one's native
language. It is consolidated in the brain after birth, during the critical period
of late infancy. Though gender identity differentiation is responsive to social
influences, it is believed that in most instances environmental effects are negligible.
In some cases of temporal lobe epilepsy and brain tumor, the gender identity
can be reversed. See Money, Psychologic Evaluation of the Child with Intersex
Problems, 36 Pediatrics 51 (1965); Money, Cytogenetic and Psychosexual In-
congruities with a Note on Space-form Blindness, 119 J. Psychiat. 820 (1963);
Money, Psychology of Intersexes, 19 Urol. Int. 185 (1965). See also Teter &
Boczkowski, Errors in Management and Assignment of Sex in Patients with Ab-
normal Sexual Differentiation, 93 Am. J. Obst. & Gynec. 1084 (1965).
2.Money, Hermaphroditism, supra note 1, at 472. From a technical stand-
point, a true hermaphrodite possesses both testicular and ovarian tissue in the
gonads. These unfortunate persons who possess characteristics of both sexes are
assigned a sex, male or female, which frequently is inconsistent with the sex
or gender role to which the individual gravitates, often with tragic results. See
Money, Psychologic Evaluation of the Child with Intersex Problems, 36 Pediatrics
51 (1965); Money, Cytogenetic and Psychosexual Incongruities with a Note on
Space-form Blindness, supra note 1, at 820; Money, Psychology of Intersexes,
supra note 1, at 185; Teter & Boczkowski, supra note 1.
3. See generally H. Benjamin, The Transsexual Phenomenon (1966).
4. See note 1 supra. It should be noted that under the gender identity or
psychosexual identity test a transsexual will register a sex opposite to his physical
sex. However, he is not a true hermaphrodite as defined in note 2 supra.
5. An overt homosexual is medically defined as an individual who consciously
recognizes or practices sexual attractions or relationships between members of
the same sex. See Am. Psy. Ass'n., A Psychiatric Glossary (1964).
6. See J. Money, Factors in the Genesis of Homosexuality Determinants of
Human Sexual Behavior, in Determinants of Human Sexual Behavior 19 (G.
Winokur ed. 1963). Dr. Money says that a transsexual who wishes to be a woman
does not concede that his desire is a homosexual desire.
[H]e is convinced that he is a woman physically, or at least is turning into
one, even though he has the wrong body. The idea of a sexual relation-
282

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