Genital Surgery NOT Required for Legal Change of Sex: Freedom From The "Have-To" Of The Scalpel
by Phyllis Randolph Frye* , Attorney, Founder and Executive Director, ICTLEP
My talk is called, "Freedom From the "Have-to" of The Scalpel." It is about legal legitimacy without the pre-requirement of completing genital surgery. And I'm going to talk a little bit about freedom in general. I'm going to talk about another one of our freedoms, which is to keep our marriages. I'm going to talk about freedom from the "have-to" of the scalpel, and I'm going to talk about the price of freedom. There is a freedom that has allowed Phyllis Frye, who brought enough dresses to wear for this entire conference since she was going to be at the podium, to say "to heck with it, I can be a woman and wear blue jeans an T-shirt" and stand here at the podium.
There's another type of freedom. I don't know how many of y'all read the Esquire Magazine that appeared in April of 1995. But, they did an article on us and several people were interviewed. Martine was interviewed and other people were interviewed. They did a really nice interview on me. I was very pleased with it. And what I did was, instead of trying to tell the Esquire reporter about how good things were, while we were sitting in the privacy of my home or in my office, instead I showed him that I was out in the open by having him meet me downtown at the courthouse. And I had him follow me around the courthouse all morning while I visited about five different courts. After that, we went to lunch in an open restaurant at a table in the middle of the restaurant with other openly transgendered people. He went back to his hotel and that evening we picked him up an took him to four political fund raisers for elected officials, one Republican and three Democrats. He was flabbergasted by the freedom. He was flabbergasted to see that what I was describing to him was not just "the talk," but it was indeed "the walk."
Sharon Ann Stuart, as y'all know, or Tom Heitz, that we love dearly, presented her speech yesterday. She has known me for a long, long, long time. Even so, on Wednesday morning before I got to this hotel I had to go to court. I had things I had to do. I had six different courts I needed to visit. And Sharon went with me, as Sharon. I took her in to the back doors to visit with courtroom coordinators, and to visit with court reporters, and to visit with bailiffs, and to check out various details. It was actually one judge I had to talk with. The rest of it was D.A.'s, clerks, coordinators, stuff like this. I had to file papers. And all throughout I would go through the busy pedestrian tunnels between courthouse buildings. I would go here, I'd go there. "Hey, how are you?" People would holler to me from the side, "Hey Phyllis, how are you doing?" And even Sharon, knowing me as long as she had, was flabbergasted by the fact that outside of the office, Phyllis Randolph Frye, in her professional area was very much out, was well respected, was well known, and was even liked.
------------National Journal of Sexual Orientation Law, Vol. 3, Issue 1 ------------ ---------------------------------END PAGE 30---------------------------------------
I think that I need to emphasize this message. If you will take the initial heat, then it will eventually subside, and they will eventually see you as a real person and you can be free.
I even wear "Transgender MENACE" t-shirts in my neighborhood quite often. When I go to the bank, or I go to the grocery store, or I go to the pharmacy or anywhere else I need to go in my neighborhood, I'm wearing my "Transgender MENACE" t-shirt. And it's not necessarily just being in their faces because I can easily pass. I blend in very well. I don't wear a sign that says I'm transsexual, but sometimes I think it's important for people to be reminded. I discover otherwise that people forget about me, and then they think "well, I don't know any transgendered people. Who are they?" And all of the times that I've gone to my bank; and I've gone to my pharmacy; and I've gone to the grocery store; and all these places around the neighborhood, people see my MENACE t-shirts and most people don't even bat an eye. If you look at a MENACE t-shirt, it's pretty tame compared to some of the t-shirts that people wear nowadays.
Most don't even look at it, but every once in awhile somebody does. I had a clerk who said, "What does that mean?" And I said, "Well, it says transgendered menace. That means that I'm transgendered. But do I look like a menace?" And he looked at me, and he grinned and he said, "No, you don't look like menace!" I said that's the point. Click! He got it. The light went ON in his head. You can do an awful lot that way. I've never been chased. I've never been beat up. I've never been jeered. This is 1996. I'm not making any warranties or guarantees. That's the lawyer in me. But you might want to start stepping a little bit further out and see what happens.
With respect to the freedom from the "have-to" of the scapel, I want to preface discussion of this freedom by saying that Phyllis Frye is not, N-O-T, not against genital surgery. Now, I want to repeat this again. Phyllis Frye is not against genital surgery. ICTLEP is not against genital surgery. But what we of ICTLEP all stand for is that you should not "have-to-have" genital surgery just, merely, solely, to be allowed by society to get your legal stuff in order. Because then you really aren't faced with any real choice at all. A coerced choice or an intimidated choice or a peer pressure choice is no choice, is not a free and deliberate choice.
It is my contention and my experience that there is too much peer pressure. You all have -- all of you who are pre-op or non-op -- many of you who have friends who in the transgender community saying, "when are you going have your surgery? When are you going to have your surgery? It's been three years, when are you going have your surgery? I'm having my surgery." And everybody's rushing around to have surgery. It's a lot of peer pressure.
You look kind of like you're standing out in the wind if you're holding your ground waiting to see for yourself if it's the right thing for you to do. Your neighbor says, "Hey, I understand that you gotta be a woman" or "I understand that you gotta be a man, but I'd sure feel a whole lot comfortable when you have this surgery." Which, by the way, they'll never see. Church pressure, for those people who do have support of churches, they'll say, "yeah we'll accept you as a female" or "we'll accept you as a male once we know that you've had surgery. You're welcome into our congregation once you've had surgery. No, the Bible will not condemn you once you've had your surgery." Of course some people interpret the Bible to condemn us forever anyway. Some don't. People draw weird lines.
------------National Journal of Sexual Orientation Law, Vol. 3, Issue 1 ------------ ---------------------------------END PAGE 31---------------------------------------
But that's beside the point.
If you could get your legal identification and your legal passport and your legal birth certificate and other legal documents done without "having-to-have" genital reassignment surgery as a pre-condition, then my question for today is this, "Can't that person then, in their own private thoughts, decide whether or not they want to have genital surgery?" Quite frankly, I don't care whether you have it or not. Once all that legal work is done, if you still want to have genital surgery, then please do. If you run into any obstacles, let me know. I will try to smooth the way for you, point you in the direction where you can have what you desire. But what's going on in our society, in our medical community, and our legal community, our families, our churches and our peer groups? There's all this pressure to have genital surgery which they will, for the most part, never see the results of or even know for sure if you had it. Now I personally can't do anything about most of those pressures, but I can do and have personally done something about the legal aspect. When people can't get their legal paperwork done, they can't get their jobs, they can't get their insurance coverage, they can't get all this other stuff, until after, until after, until after they've had surgery. Yet, they make you run through a gauntlet to be "sure" that you "want" surgery. Well, what are you going to do if you're kind of not certain? Well, you're probably going to have surgery. And you may be happy with it. And if you are then that's great.
But what if you're not happy with it? Requiring genital surgery before allowing legal changes is the donkey before the cart.
Okay, so in August of 1993 in Proceedings II, yours truly made a speech. It's titled "The Non-Op Transsexual: Clitoral Hypertrophy". And clitoral hypertrophy is essentially when someone, who is a male-to-female/female-to-female transsexual who has had a bilateral orchiectomy; and has been on hormones for a long time; and has developed breasts and all the other secondary sexual characteristics, and has had electrolysis and all this other stuff. And due to the hormones, the long term irreversible hormone therapy, what some people used to call a penis has reduced radically in size. And so what we have is a person with the brain sex of a woman and the gender presentation of a woman and between her legs (where society spends so much time worrying about us) is a hyperextended clitoris or clitoral hypertrophy.
Now in the case of our brothers -- help me out with this Jamison if I screw it up. Although it's not the same -- it's not the same in its actual biological function -- in the outward appearance function, the metoidioplasty has this similar outward appearance. Through the hormone therapy, the beard comes, the muscles bulk out, vocal cords thicken, and all this other stuff. A hood over what others would call the clitoris has an incision. And what others would call a clitoris enlarges and is now an underdeveloped penis. Actually Jamison just corrected me to say it is not underdeveloped, it is simply a small penis. I apologize. You're correct. It isn't underdeveloped, it's just small. Just small.
Going again to the ICTLEP Health Law Standards which state in Standard No. 2, "physicians providing hormonal sex reassignment therapy." It talks about what they're supposed to do and what they're not. So, in Standard No. 2, there is a definite place for and an equal place for hormonal sex reassignment therapy, which is on par with genital sex reassignment therapy. In August of 1995 in Proceedings IV, there's also Standards of Care No. 2 again. And there's Documents Report on pages 150 to 153, wherein I said the following about how I learned about and came to terms as a legal practitioner with the
------------National Journal of Sexual Orientation Law, Vol. 3, Issue 1 ------------ ---------------------------------END PAGE 32---------------------------------------
nonsurgical, fully completed transsexual. And I was talking about the TG men in our community. This is where I learned this. And I'm quoting so if I say something stupid remember that was over a year ago and I've learned more since then. "That bunch, speaking of the men, with hormones and facial hair that took me years to get rid of. Their voices dropped just like that even though mine will never because my vocal cords are so thickened. And they bulk out with these muscles because they pump iron and take hormones. You know they wear wing tipped shoes while we're teetering around with our toes pinched in high heels. And in many ways, many ways, they do have it more difficult than we the transgendered women do. But, as far as their initial transition, quite often it doesn't take as long and it is a lot quicker because there isn't as much societal pressure on a woman who runs around in blue jeans and a T-shirt as there is on a guy that decides to wear a dress and hasn't finished with the electrolysis."
Continuing the quote, "The question is, from the point of evidence, what do they have between their legs? Well, they're men up here, up in their brains, because the brain is our biggest sex organ. So, what is it between their legs? If they believe that they have an enlarged clitoris due to hormone stimulation, then evidentially and through a deposition it could be argued very easily while opposing an insurance company; or opposing a spouse in a divorce; or the opposing who knows what, that they're still women. But, if their minds they believe that they have instead a small penis, and their doctor is willing to back up as a small penis, then evidentially and through a deposition it could be argued very easily while opposing an insurance company; or opposing a spouse in a divorce; or the opposing who knows what, that they're men. They have a small penis but they are men: it can and does work. It worked in the Baker vs Baker case that I mentioned earlier. There were depositions, legal depositions where our guys swore up and down, under intense cross examination, that no, they didn't have female sex organs; no, they didn't have a clitoris; they never had a clitoris; but that they've always had a small penis. They never budged on that in one case or another.
And as far as Phyllis Frye is concerned; if I were ever deposed, I would swear that I've always had a clitoris; it was merely hyperextended." There's a lot things you can do especially if you're creative and if your lawyer's creative. And if your lawyer is well trained. And that's the secret. If your lawyer is well trained. I don't care how good a lawyer is in their special area of law. If they can't conceive of clitoral hypertrophy; if their eyes wince every time they have to call you by the proper pronoun; if they're stumbling all over this in their minds, they're not the advocate for you. Body language really does communicate to a judge. It also communicates to opposing counsel.
Now consider your attorney's very, very first phone call from a opposing counsel. If your lawyer is stumbling all over pronouns, opposing counsel is in charge. Think of an example of some attorney who's representing our friend, Jamison Green out there in the audience, for the first crack out of the box. Attorney says "Mister" Green, HE" from the beginning with opposing counsel and doesn't budge one iota from that. This attorney is going to have a much easier time than some other attorney who from the very first phone call communicates to the opposing counsel that they're not comfortable by saying, "well, um, um, um, Mister, um, uh, Miss, uh, Mister, Green, uh she, I mean he . . ." and all this other stuff. The opposing counsel already knows that your attorney isn't comfortable with your being TG. And so you must get an attorney with good body language and good skills concerning you and you press it to the max. And the way you get that information is through Proceedings III, pages 102-106, the "Non-Lawyer Checklist for Transgenders Who Consume Legal Services."
------------National Journal of Sexual Orientation Law, Vol. 3, Issue 1 ------------ ---------------------------------END PAGE 33---------------------------------------
There's another interesting thing. Lou Swartz, many of y'all met him at the last year's ICTLEP conference. He's a professor of law at New York State University in Buffalo, New York, and he presented a paper to the Harry Benjamin Symposium, September 7 through the 10th of 1995 in Bavaria, entitled, "The Legal Responses to Transsexualism: Scientific Logic Versus Compassionate Flexibility in the United States and the United Kingdom." He gave ICTLEP a limited copyright to present it in Appendix (A) of the 1995 Proceedings IV.
And when I read this I was flabbergasted, because he took what I said and he put it in language that meant something to him. Now it doesn't matter what I think I say. What matters is what people hear. And I was so flattered when I read what he had heard. And it is the basis for what I'm fixing to you show you in just a minute. On page A-12 of the Proceedings IV, it says in item "c. Sex at birth: fact or prediction? Phyllis Frye of the International Conference on Transgender Law and Employment Policy, ICTLEP, asserts the designation of sex on a birth certificate (usually done in the United States by the physician) does not involve merely a statement of observed medical fact, as is usually assumed. It is more accurately seen as involving an implicit prediction, usually correct, based upon observed medical fact. The observed medical fact concerns the structure of neonatal genitalia as falling within a range of typically male or typically female. The prediction -- so often true that its contingent and probabilistic aspect has in the past not usually been recognized -- is that as the infants grows further into childhood and then into adulthood, there will almost always be a congruence between the anatomical indicia of sex (male and female) already noted, and an emerging subjective gender identity, yet to develop. One might therefore say, in cases of transsexual gender" (here Swartz uses the word "dysphoria" -- which makes me puke) "dysphoria, that in filling out an infant's birth certificate the physician made a mistake, a mistake in predicting the emerging congruence of psyche and soma. From this point of view revision of legal documents of a transsexual, such as a birth certificate, involves not a sex change but a documentary correction of an error, an error in prediction.
Ordinarily such predictions are so trustworthy that for practical reasons they can be regarded as statements of fact. It is only unusual cases such predictions turn out to be wrong, and then -- it is argued -- they should be corrected without any special need for apology."
Continuing with the Swartz quote: "From this different angle of vision the original record contains what is now revealed to be non-negligent misstatement. Pragmatically interpreted, we are thus merely dealing with a correction of a relatively uncommon type of official documentary error. This would seem, then, no longer to present a direct conflict of a highly conservative position stated in the Corbett cases by others elsewhere. . . ."
In other words, according to Swartz, if you take this view, and if your doctor will adopt this view, and if your lawyer takes this view; and if she or he can convince the judge to take this view, then Corbett and all the other "B.S." cases that follow it, don't apply. You're not trying to change anything. You're trying to make a mere correction.
Earlier you were handed a photocopy of a court order, and I want you to look at that, and I want you to take it home. And I want you to do with it whatever you need to. But there's some very significant language in that order. I've been preaching this for a long time. I've decided I was going to see if we could do it. So, I met with my doctor, who does my annual
------------National Journal of Sexual Orientation Law, Vol. 3, Issue 1 ------------ ---------------------------------END PAGE 34---------------------------------------
endocrinological workup. Thank goodness he did, because last year he found out why I was so sick. It was an unusual anemia. But I told him -- I pretty well keep him up on my legal theories -- I said to him that I wanted to write a letter; and I wanted him to look at it, and I wanted him to tell me what he can sign and what he can't sign; what he can be comfortable with and what he can't.
And so, I wrote a letter, and we talked about it on the phone. Then I made a few changes, and he signed it before a Notary. And with that sworn document and with a petition that followed a lot of the logic that I've already discussed, and that quoted a lot from the Swartz thing I just read, and that quoted a heck of a lot from the various Proceedings, we got this order that you hold. It says that the judge understands that Phyllis Frye has never had genital surgery. In the order the judge essentially says,"Yeah, I know you've never had genital surgery, I'm aware of that". But with that the judge signed the order that you hold. Obviously I wrote the order, but if he didn't like it, he would've changed it.
In the order is a recitation of court findings. The Court found that the petitioner has completed her long term irreversible hormonal alteration. Long term is important. What long term is, nobody knows. Irreversible is very important. Again, what it means, the doctor essentially said that she's been on hormones for so long that it's rendered her chemically sterile. And if she went off the hormones she would have to have surgical intervention to take her back the other way. Obviously I'd have to have a mastectomy and other things. So, that's hormonal alteration. The court found that I was a complete transsexual female. And then the court went on to find that the original birth certificate listing Ms. Frye as a male has been revealed to this court to now be a non-negligent misstatement. And that the birth certificate should be corrected to read female. And therefore, the court deemed my sex to be female all the while knowing that I was non-surgical.
It is not a big deal that Phyllis Frye is now legal. The big deal and the point of this is that now we are all legal and now we are all free from the "have-to" of the scalpel. We can, if we are clever and if we frame our arguments right and if we push our attorneys to do the right thing and if we push our attorneys to understand -- and if you can't get an attorney to do the right thing or to understand or to read or to study the indicia and the nuances of transgendered conversation, then get another attorney. We can, in all of our states, come up with these. From now on, before you've had your genital surgery, yes, before, it should be a matter of course to have your birth certificate amended. Before surgery, have your birth certificate amended. And then if you want to go on and have genital surgery, have it. It is then a real choice without legal coercion.
But, you don't "have-to-have" surgery to get your birth certificate amended. That is what I just demonstrated. I think that this is a very emancipating thing in our community. I think that this will be another water shed. This is why I'm so committed to what ICTLEP is doing. This is real freedom: to be able to make a real choice to be the full whoever you are inside and no more and no less.
The final freedom I want to talk about is the dollars and cents price of freedom. And this is a little squib that was published in Proceedings II, August of 1993 on page 172. I talked about the dollars and cents price of freedom. We all have choices. We can all make any choice we want. The question is, what is the price? And what is the risk? And what are we willing to take? The dollar and cents price to Trish and me was that with inflation and with routine but conservative advancements and promotions, in 1993 dollars, when I gave this speech, our accumulated wealth was somewhere between
------------National Journal of Sexual Orientation Law, Vol. 3, Issue 1 ------------ ---------------------------------END PAGE 35---------------------------------------
$400,000.00 and $600,000.00 less than it would've been. Well, $400,000.00 and $600,00.00 worth of accumulated wealth could've been several cars, could've been a lot of jewelry, could've been a much bigger house and paid for. Because I was essentially unemployed or underemployed for a period of 10 years. But the point is that I'm free. And if only $400,000.00 or $600,000.00 was the price of being free, that's a cheap price to be free for the rest of your life.
So, I recommend these things to you. I offer these things to you. I invite you to go home knowing that your marriage is valid and that you are now free from the "have-to" of the scalpel and that you are now liberated, emancipated, in that area.
I love you all so very much.
* Ms. Frye is an Eagle Scout, a Texas A&M University graduate with additional degrees from the University of Houston, a veteran, a licensed engineer and a licensed attorney. She has been active and out-of-the-closet for over two decades. In 1980 she led the successful repeal of the Houston anti-crossdressing ordinance. Openly, she has held elected offices in social and professional organizations and has had articles published in professional journals. In 1991 she founded the International Conference on Transgender Law and Employment Policy. In 1993 she was the sole transgendered platform speaker for the "3rd March on Washington for Lesbian, Gay and Bisexual Rights." She and Karen Kerin of It's Time America initiated the first efforts to lobby Members of the US Congress in July 1994. Those two, and Riki Wilchins of Transexual Menace, organized the two-day event that put over 100 transgenders into 510 of the 535 Senate and Congressional Offices in October 1995.
write the editor
back to our home page