The Unspoken Reality of the Transgendered and their Need for a Judicial Revolution

By: Richard McCulloch


The essence of technology centers on the ability to provide permanent solutions to chronic problems that plague members of society. Through medical technology, individuals that once succumbed to kidney failure were given a new lease on life through the use of dialysis machines. Automotive technology evolved to create the airbag, which provided a viable solution to the devastating effects of high impact automobile accidents. With every tragic aviation accident, aeronautical engineers utilize data in an effort to bring about technological advances that will help prevent the recurrence of these accidents.

Technology has allowed this society to dream of a future where nothing stands in the way of individual happiness. Technology has afforded the masses the ability to envision a life that can be manipulated to the point of actually creating new realities. To some individuals, the ability to create a new reality for themselves is imperative to their ability to function in this society. One such group is the transgendered population.

The advent of sex reassignment surgery (SRS) has offered a gender haven for the thousands of transsexuals that exist worldwide. Here in the United States, the number of documented transsexuals has reached well over the ten thousand mark. Despite these substantial numbers, the legislative and judicial arms of society have been slow in keeping up with the medical technology that affords these individuals a more appropriate lifestyle.

The plight of the transsexual in America is an example of how technology is rendered impotent without the support of the legal system. Without protection, the transsexual’s new reality creates new obstacles, instead of dismantling the ones that existed prior to surgery. The societal dysfunction felt by pre-operative transsexuals is often replaced by ostracism in the workplace and non-existence in the realm of jurisprudence.

History has shown, that the stripping of individual civil rights has precipitated the most heinous atrocities of humanity. From the auction blocks of Southern Slave states to the gas chambers and concentration camps of Nazi Germany, the denial of human and civil rights has predicated the oppression of select groups. Without a judicial revolution, members of the transgendered population will be the next victims.

Where do transsexuals come from?

"Many transsexuals feel that they are the victims of a handicap that clouds every aspect of their lives and causes them such severe emotional pain that it interferes with their day to day functioning." These are the words of clinical sexologist Mildred Brown. In her book True Selves, which she co-authored with Chloe Ann Rounsley, Brown describes the inner torment suffered by transsexuals as they evolve into adulthood. The culprit responsible for this emotional trauma is called gender dysphoria. The term dysphoria comes from the Greek word meaning "hard to bear", and reflects the difficulty that transsexuals find in truly accepting the gender that was bestowed upon them at birth. Some psychologists do argue, however, that the anxiety that is felt is not directed solely towards gender but towards the genitalia of the gender. This would explain the extreme cases of gender dysphoria in which the victim indulges in genital self-mutilation. The conflict of gender and genital orientation is so traumatic in these individuals that suicide attempts are not uncommon. Recent estimates show that attempted suicides by transsexuals range from 17 to 20 percent. The fact that almost one out of every five transsexuals have, or will try to take their own life is a staggering statistic which has prompted the psychiatric community to take the appropriate notice. The Diagnostic and Statistical Manual of Mental Disorders, 3rd Edition (DSM-III), released in 1980, documented and validated the term transsexual for gender dysphoric individuals who demonstrated at least two years of continuous interest in removing their sexual anatomy and transforming their bodies and social roles. In addition, the ICD-10 (International Code of Diseases, 10th Edition) has been used in conjunction with the DSM III and IV in an effort to organize treatment and research for members of the populous suffering from gender dysphoria

Though the psychological and medical communities have recognized the social and mental dysfunction suffered by transsexuals, society has been somewhat reticent in truly understanding the transsexual dilemma. The condition of gender dysphoria is often referred to as " The Invisible Handicap" due to its non-acceptance in mainstream society. Transsexuals are often lumped into the same category with crossdressers, drag queens and female impersonators. This all-inclusive nomenclature has tainted the reality of transsexuals and their more intense gender dysphoric conditions. Crossdressers and drag queens often don cross gender attire for entertainment and sexual reasons. They do not feel the same intense desire to permanently change gender as do their transsexual counterparts. Mainstream society sees entertainers such as RuPaul and the late Divine as "gender-benders" who choose to adopt the clothing and mannerisms of the opposite sex. These images propagate the false impression that gender dysphoric individuals choose their lifestyle and hence, have the option of ignoring their inclinations to live as a member of the opposite gender. The clinical transsexual does not feel as though they have a choice. To these individuals, gender reassignment is a necessity if they are to ever enjoy a somewhat normal life. Through gender reassignment, transsexuals are finally able to substitute a new, more fulfilling reality for the anxiety ridden existence of their gender dysphoric past.

A New Reality

Modern medical technology is responsible for innovations in synthetic realities that have made the transgendered person better able to conform to the phenotypic and cosmetic expectations of their new gender. Breasts can be augmented, and a vaginal structure constructed in the male-to-female transsexual to look as feminine as those of a genetic woman. The male phallus can be constructed to complete the total transition process of a female-to-male transsexual. Through these cosmetic changes transgendered individuals begin to face a new reality where their appearance is finally consistent with their intrinsic gender orientation. Despite these new cosmetic adjustments, the harsher reality for the transgendered person is getting others to accept their new reality.

Prior to actual surgery, transsexuals are required to go through what is termed RLT, or Real Life Test. During this period the transsexual must live as a member of their desired sex for one entire year. It is during this time that most transsexuals start to realize that their efforts to cure their gender dysphoria may lead to discrimination in certain areas of society. Though spouses and family members may have a difficult time in accepting the change in gender, the workplace is often where the most discriminatory actions occur.

A transitioning or post-operative transsexual is often confronted with major decisions regarding employment. The need for employment is usually exacerbated during this time due to increased expenses. The cost of the surgery, hormone therapy, electrolysis and a new wardrobe, are financial issues that come along with the territory. At the same time, a transsexual who stays at their place of employment during their transition has to deal with a plethora of social and professional issues on a daily basis. The use of inappropriate pronouns ("he" versus "she", "him" versus "her"), exclusion from certain meetings, removal from customer service duties and reduction of hours are just a few of the psychological, professional and economic obstacles that may emerge.

Should a transsexual opt to begin anew in their professional life, there are other issues that interfere with their ability to thrive. A transgendered person is usually forced to divulge their status as a transsexual because all of their credentials and documents (i.e diplomas, birth certificates and certifications) will bear their pre-transition name that is usually inconsistent with their current gender presentation. The normal anxiety of interviewing is exacerbated by not knowing whether to choose "male" or "female" on the application. Throughout the interviewing process many transsexuals resign themselves to the fact that they may have to accept a lesser position at a reduced salary due to their gender reassignment. These concessions are usually made because the transsexual does not enjoy the comfort of being unequivocally protected under the auspices of anti-discrimination laws.

The ramifications of being a transsexual in certain professions can be a matter of life and death. Transgendered police officers have been the subject of non-existent or tardy police back up in dire circumstances. Certain transgendered individuals have been assigned perilous duties without appropriate training in an effort to force them out of their jobs. The perpetrators of these discriminatory practices are free to do so without the fear of judicial repercussion. In fact, with the exception of Minnesota, there are no states that include transsexuals and the transgendered in their anti-discriminatory laws.

Many employers have actually succeeded in dismissing an individual from their position due to their transgendered orientation. These employers usually cite the rights of their other employees to enjoy a "comfortable" work environment as the justification for these dismissals. Bathroom issues serve as convenient excuses for employers to terminate a transgendered employee. Co-workers may express concern that they feel as though their privacy is being compromised if the transgendered employee is allowed to use the same restrooms as they do. In certain cases, the restroom dilemma has spawned employer resolutions that reek of discrimination based humiliation. Some employers have chosen to resolve the bathroom question by requiring that the transgendered employee put a cloth or flag on the restroom door when they are inside. This "sign" gives the other employees the option of using the bathroom or waiting until the transsexual has vacated the facility. One cannot help but reflect on the legal and moral implications of having the same kind of system in place for African-Americans, Jews, homosexuals or any other group in society. The thought of an African-American being required to indicate his presence in a restroom by displaying a flag on the door is almost laughable in this day and age. Despite a long history of prejudice and segregation within the borders of the United States, in 1964 a judicial system inspired by the vision of John F. Kennedy and Lyndon B. Johnson, passed the Civil Rights Act. The ratification of the Civil Rights Act served as a milestone in the judicial revolution against racism and the abridgement of inalienable human rights. Throughout subsequent years, the umbrella of legislative protection has been opened wide enough to cover most groups within society. The transgendered remain the only group still vulnerable to the elements.

Revolution Time

The transgendered remain the sole denizens of the judicial closet. With only one state assuming legislative responsibility to their transgendered citizens, most of transgendered America remains silent throughout incidents of bias and discrimination. Without outspoken advocates such as Al Sharpton or Elie Wiesel, these victims of the silent handicap become more silent as they remedy their gender dysphoria. Despite the blatant incidents of unmerited termination based on discrimination, jurists involved in these cases have repeatedly echoed the decision that since Congress did not pass the Civil Rights and Equal Employment Opportunity Acts with consideration for the transgendered, it is not within the scope of the courts to fashion its own interdictions in these matters. To allow discrimination of this type to exist in a society that possesses the technology to change a person’s gender, is contradictory to the spirit of progress. To simply ignore the rights of a group of human beings who have simply remedied a documented illness is abhorrent in its practice and is indicative of a culture that has stagnated in its commitment to civil rights.

As scientists strive to create artificial beings comprised solely of synthetic parts and materials, they must look at the legal plight of the transgendered as a precedent for the protection of these new synthetic beings. If the government refuses to be proactive in their protection of organic humans that have been modified in order to improve their functionality in society, how much protection can these totally artificial beings really expect?

Technology is not the sole barometer of progress. Justice, and society’s comittment to justice is a more relevant measurement of progress. The castration of Jim Crow in the South was a clear sign of progress. The liberation of camps such as Auschwitz and Dachau was a clear sign of progress. Through the enforcement of basic civil liberties, society has been able to turn the corner after some of its most inhumane chapters in history.

We as a society have an obligation to support and protect those who suffer or are in need. How do we justify the continued mistreatment of a segment of our population that suffers from a socially and emotionally debilitating disorder such as gender dysphoria? If an employer were to deny an HIV positive person the opportunity to work because of the speculation of "co-worker discomfort", the legal remedies would be swift and potent. The plight of the transgendered should be attacked with the same legal fervor as any other instance of employment or civil rights discrimination.

The transgendered seek their medical remedy in an effort to simply liberate themselves from the emotional and psychological barriers that preclude them from undertaking their own pursuit of happiness. In a poem entitled Freedom, one transsexual writes:

Free from the prison of my mind
Free from the fear that bound me
Free from the denial and guilt and pain
Free of the sorrows of the past
Free to experience passion and joy
Free to grow, free to feel, free to love, free to laugh
Free to cry, free to sing, free to live rather than merely exist
Free to walk my own path
Free to follow my dreams
Free to embrace the splendor and the beauty
Free to explore; free to be me.

It may be difficult for some to empathize with the feelings that are associated with gender dysphoria, however the concept of freedom is universal. Let us march forward as a society who utilizes technology to initiate emotional freedom for the transgendered, and promotes unconditional justice to preserve their newfound social liberation.


Brown, M.,and Rounsey, C. True Selves.San Francisco: Jossey-Bass Publishers, 1996.

Green, J. "Investigation into Discrimination against Transgendered People". A report by
The Human Rights Commision, City and County of San Francisco, Sept. 1994.

McCloskey, D. Crossing: A Memoir. Chicago & London: The University of Chicago
Press, 1999.


Internet Sites Transgender
Law and Policy, 2000 The Americans with Disabilities Act of 1990, Titles I and
V Amendments 11- 27 to
the Constitution of the United States


Currah, P. Professor at Brooklyn College, July 2001.