Medical Treatment and Medicalisation of Identity
(a) Gender Dysphoria/Gender Identity Disorder
The cause of gender dysphoria is not known. Recent scientific evidence suggests that there are biological influences before birth. If so, gender identity, along with other physical characteristics, is established long before environmental factors influence individual socialisation. A recent experiment suggests that both biology and some environment influences may play a role in determining gender identity. Other experts, such as Professor Michael Gilbert (also known as Miqqui Gilbert) construct philosophical approaches. Professor Gilbert, a self-identified cross-dresser, looks at gender rationality and integration of the existence of the identified gender “coming together in a pan-gendered whole that will combine the best of both worlds”.
In the medical model, transsexual men and women are diagnosed with gender dysphoria and gender identity disorder. In the DSM IV the American Psychiatric Association presents several components of what it calls ‘gender identity disorder’:
- a strong and persistent cross-gender identification, which is the desire to be, or the insistence that one is, of the other sex;
- not merely a desire for any perceived cultural advantages of being the other sex but evidence of a persistent discomfort about one’s biologically assigned sex; and
- clinically significant distress or impairment in social, occupational or other important areas of functioning.
While some forms of gender identity dysphoria may be temporary, transsexualism is immutable. Specialised medical clinics such as the Gender Identity Clinic at the Clarke Institute of Psychiatry treat individuals diagnosed with gender dysphoria.
(b) The ‘Real Life Experience’, Gender Reorientation and Sex Reassignment Surgery
Gender reorientation is a form of medical treatment that takes place in phases through what used to be called the ‘real life test’ and is now called the ‘real life experience’. The phases of the ‘real life experience’ include interpersonal transition from the biologically assigned sex to the felt gender identity; document transition, which includes changes of birth certificate, driver’s licence etc.; and physical transition, which includes hormone therapy and surgery. The ‘real life experience’ requires the pre-operative individual to ‘live’ in their felt gender for a prolonged period of about one to two years, depending on the criteria established by the gender identity clinic that is authorising the sex reassignment surgery.
Although there is some agreement that time and complete information are required for gender reorientation, there is significant controversy within the transgendered community about ‘real life experience’ and its medical necessity. Many, but not all, gender identity clinics, including the Gender Identity Clinic at the Clarke Institute of Psychiatry, use ‘real life experience’ as a prerequisite to sex reassignment surgery. In consultation, one individual with a medical background stated that the ‘real life experience’ does not provide useful information to the patient about what should be expected in sex reassignment surgery. It is rather a period of compliance with a rigid set of criteria. Several people did acknowledge that it takes time to make the decision to have sex reassignment surgery and what really should be provided to individuals is a process of informed consent, as with any other type of surgery.
The costs of sex reassignment surgery vary. Female to male surgery in Toronto costs approximately $10,000 to $12,000. In the UK, where the Gender Identity clinic of the Clark Institute of Psychiatry used to sent its clients, male to female surgery costs approximately £9,000 (approximately $18,000 Canadian). The information that is available on costs of sex reassignment surgery indicates that in the United States male to female surgery can cost between $10,000 and $28,000 (U.S.). According to the 1996 British Columbia law reform project on human rights and the transgendered community, male to female sex reassignment surgery ranges from between $5,000 and $10,000. Female to male sex reassignment surgery costs considerably more, ranging from $20,000 to more than $60,000.
In consultations with the transgendered community, a number of people expressed concerns with the Gender Identity Clinic at the Clarke Institute of Psychiatry and their use of a medical model for gender dysphoria and gender identity disorder. The Clinic was criticised for their stringent standards, for the timing of and access to hormone therapy and for eligibility requirements. Consultees felt that the requirements do not reflect the real life needs of most transsexuals and therefore are accessible to only a few. For example, presenting as the other sex is especially difficult for birth assigned men transitioning to women. Before hormone therapy has begun, and without a lengthy period of electrolysis, the likelihood that the person will ‘pass’ as a woman is low. The result is that living as one's felt gender can be highly stressful and may open the door to discriminatory treatment.
In Myth, Stereotype, and Cross-Gender Identity in the DSM-IV, Barbara Hammond notes that there is
¼ substantial historical precedent for the enforcement of rigid gender roles by medical practitioners. For example, from the early to mid-1900’s women who exceeded the bounds of gender conformity in demanding civil rights and the right to vote were discredited and often institutionalized with a diagnosis of "hysteria". Homosexuality ...was classified as mental illness until 1973, representing a violation of “appropriate” gender role. At the heart of the current medical policy is a presumption of gender essentialism, perpetuating the doctrine of two sexes, immutable, and determined by genitalia. A growing body of literature that considers gender a social construction, not a biological imperative ¼ has been inexplicably disregarded.
Other social considerations include the power inequity in transsexual psychotherapy and the validation of medical caregivers¼A therapist serving as a gatekeeper to the availability of surgical or hormonal treatment holds absolute power over a transsexual client. This undermines the therapeutic relationship, leaves the client little motivation for honest expression¼, and creates a distorted view of transgenderism by psychiatric caregivers reflected in the current medical policy. Finally, medical practitioners and researchers have a self-interest in the present diagnostic categories, which are perceived to lend respectability to gender work¼and legitimize association with transgendered subjects¼” 
(c) Legal and Medical Issues
In Finding our Place: The Transgendered Law Reform Project, the authors note that the legal system and the medical system have engaged in the ‘medicalisation of identity’. For example, the courts ask whether, medically speaking, a person is a woman or a man:
There is very little conceptual space in law for the idea that to ask if one is a “real man” or a “real woman” is to ask the wrong question... In order to protect themselves from lawsuits, the medical profession requires that a transsexual have a psychiatric diagnosis requiring the surgery. Though you may be able to have breast reduction or enhancement surgery, or facelift, etc. essentially on demand, you cannot have SRS [sex reassignment surgery] without a psychiatrist’s letter saying you need it.
The legal preoccupation with a medicalised gender identity means that individual ability to self-identify is limited unless the person has supporting documentation. In Ontario, the government interpretation of the Vital Statistics Act  requires a medical letter and sex reassignment surgery before allowing a change in the birth certificate. Government policies for other documentation vary, but many ask for medical proof that the individual is transsexual rather than accept self-identification. Consultees reported instances of court cases such as custody disputes where the transsexual parent was required to undergo medical assessment to confirm the person's gender identity.
Problems arise when the medical profession is responsible for all aspects of gender identification rather than allowing self-identification by a person who has consistently identified themselves as transgendered. Despite self-identification as transsexual, for example, many institutions require medical certification of what an individual has already stated to be true. The law, in its enforcement and administration, allows for only a minimal capacity to self-declare as transgendered. Thus when dealing with official institutions (i.e. court system, corrections system) even if a person self identifies as transgendered they have no access to medical documentation to support their felt gender identity so that they can be dealt with in the appropriate manner.
Medicalisation means that a transgendered person must receive ‘official’ recognition from a gender identity clinic, which is not always accessible, in order to receive appropriate service or treatment from the health care system and other organizations that they may come in contact with. General practitioners often do not have the resources or expertise needed to provide appropriate services to transgendered patients. As a result, there are many transgendered individuals who self-medicate and self-treat with hormone therapy, which subsequently puts their health at risk. Many individuals in this situation reported that they felt they have no other option.
During the consultation, one pre-operative transsexual woman and one intersexed woman showed letters written by their doctors. The letter ‘introduced’ the individual, advised that the individual had been diagnosed as having ‘gender identity disorder’ and that people should address the individual as a woman. These two individuals indicated that they carried this letter at all times in the event that they were stopped by the police, stopped when using women’s change rooms or washroom facilities, questioned at government agencies or in any other official setting.
A growing number of people who are transgendered no longer consider sex reassignment surgery as a suitable option for them either due to cost, medical risks, medical barriers, or on principle. Many do not wish to assimilate into a society with rigid bifurcated standards of sex and gender congruence, but rather ask that society accepts and adapts to transgendered people. Nevertheless, a large number of transsexuals in Ontario seek sex reassignment surgery but due to a recent change in government policy, and economic and medical barriers, they cannot access it. These factors also effectively preclude transgendered people from accessing hormone therapy.
(d) Disability Diagnosis
Although cross-dressing and transsexualism are considered psychiatric disorders, there is controversy about treating either as a disability. However, a diagnosis of gender identity disorder is the ‘disability’ that must be established for sex reassignment surgery. Many jurisdictions (including Ontario) limit access to health insurance coverage for medically approved procedures to those procedures available from a gender identity clinic. Medicalisation may also be a barrier to an individual's ability to self-determine and self-declare a gender identity that varies from their birth assigned identity.
British advocate and law professor Stephen Whittle supports the move away from the medical model that focuses on disorder - and hence disability - toward a rights-based approach that focuses on accommodating persons based on their gender identity:
Transsexuals are seeking for the law to acknowledge that they have rights, not as transsexuals, but as men and women who have finally become appropriately recognizable through medical intervention. They are seeking for the law to recognize the gender assertions they have made through seeking reassignment.
During the consultation, some individuals indicated that they were not in conflict with the diagnosis of gender dysphoria. Indeed, the diagnosis facilitated their ability to identify in their felt gender and allowed them to access sex reassignment surgery. One group involved with transgendered individuals who are homeless, street workers or living with HIV/AIDS stated that the medical diagnosis is especially important for lower income transsexuals who cannot afford private medical care or who are employed during the transition from the birth assigned sex to their felt gender. Others were, at the very least, concerned with the negative stereotyping attached to a diagnosis of a psychiatric disability.
Most community members stated that access to medical services for sex reassignment should not be barred even if the psychiatric diagnosis is removed. One group made an analogy between the accommodation of medical needs related to aligning one’s physical appearance to one's gender identity on the one hand and the medical care that is required during pregnancy on the other. The Supreme Court of Canada in Brooks recognized pregnancy as a health issue rather than a disability and required that accommodation be provided on the former basis. Similarly, it is argued that transgendered persons should be able to obtain accommodation without being ‘pigeon-holed’ as persons with disabilities.
HIV/AIDS is a significant health consideration for transgendered individuals who engage in high-risk behaviours such as unprotected sexual activity or intravenous drug use. This issue is highlighted by a research report done in Vancouver, which indicated that 70 to 80 per cent of transgendered sex trade workers are HIV positive.
(b) Transgendered Youth
Transgendered youth have limited access to professionals who understand the nature of gender identity and how to support a transgendered individual. Continued homophobia and transphobia in the social services directed to gay, lesbian and bisexual and transgendered youth compound this. This was stated several times in the consultations. One woman related the story of her incarceration in youth group homes before her sex reassignment surgery. She was told to act like a man, disciplined for not doing so, and survived the process simply by denying her transgendered status.
Further, consultees stated that the educational system does not understand transgendered issues. Transgendered youth and transgendered parents both face barriers dealing with the school system. Some social service agencies are beginning to recognize the need to address these issues. For example, the Catholic Children’s Aid of Metropolitan Toronto has developed a policy that includes transgendered youth in its intervention policy. The policy states that all staff care providers and volunteers must undergo training with regard to the needs, concerns, language, symbols and culture of gay, lesbian, bisexual and transgendered youth and families. Issues concerning sexuality that arise in service delivery to transgendered youth should be treated with the same respect, concern, sensitivity, and confidentiality accorded to heterosexual youth and families.
(c) Services and Media
Service delivery to the transgendered community is generally reported to be poor. In consultations, individuals reported that they had been stopped by the police and told to identify who they were. Hospital workers show prejudicial attitudes in treatment once the birth assigned sex of the individual is discovered. Insurance companies give differential treatment once the transsexual identity of an individual is discovered. Transgendered women have difficulty accessing women’s shelters and other social service agencies. Families of transgendered people, including spouses, children and parents also lack the resources to obtain the support and understanding they need and to be free from discrimination.
The media generally shows a misunderstanding of the issues faced by transsexuals. There is often confusion of terminology used to describe individuals, i.e. not distinguishing between the issues of transsexuals, cross-dressers, etc. The result is that derogatory or sensationalistic language is frequently used when reporting on issues that are related, in whole or part, to transgender issues.
(d) OHIP Coverage
From 1970 to 1998, OHIP coverage had been provided for sex reassignment surgery for individuals approved by the Clarke Institute of Psychiatry. Ontario’s Ministry of Health treated most aspects of sex reassignment surgery, including out-of-province procedures, as reimbursable services under OHIP. Section 7 of the Health Insurance Act outlines that breast enlargement, augmentation, mammoplasty or breast reconstruction in a male to female conversion is not an insured benefit unless prior authorisation is received from the Ministry of Health. In all cases, health coverage for sex reassignment surgery in Ontario was contingent upon having completed the program at the Gender Identity Clinic at the Clarke Institute of Psychiatry and having been recommended by the Clinic for sex reassignment surgery.
In October 1998, the Ontario government decided to remove sex reassignment surgery from the list of services covered by provincial health insurance. This decision was met with public outcry from the transgender community and is interpreted as a statement that the government does not consider the issues of transgendered people as valid, significant, or important. This decision has a profound impact on transgendered people who are part of a highly marginalised community and who are also often in a lower income bracket which means they lack the financial resources to pay for surgery.
The Ministry of Health has not provided any rationale behind the decision to delete health insurance coverage for sex reassignment surgery. An article in the Toronto Sun, based on information apparently provided by the government, states that the savings will be applied to cardiac surgery. However, the public funds allocated for sex reassignment surgery are insignificant when compared to the budget of the Ministry of Health. The article ignores the fact that qualified professionals have identified surgery to be a medical necessity. Moreover, the consequences of not covering surgery may include additional or increased costs in other areas such as counselling and health care. It may also result in an elevated risk of suicide in the transgendered community because individuals are unable to obtain appropriate services.
(e) Fear of discovery
Transsexuals and transgenderists fear discovery of their birth-assigned sex. Likewise, for cross-dressers, the fear of being discovered is a significant concern. The repercussions of being discovered can include termination of employment, loss of housing, loss of services, social isolation and other forms of discrimination, harassment and possibly violence.
(f) Hate Crimes and Transgendered Individuals
Crime statistics indicate that transgendered people are victims of hate crimes that may also involve violence. Furthermore, such crimes may not be taken as seriously or dealt with appropriately. As noted in a draft brief by the Canadian Task Force for Transgendered Law Reform:
Many live in a constant state of fear for their lives and physical security. Should they openly acknowledge who they are, they risk not only hateful retaliation but the loss of their family, relationships and jobs.
Author Ki Namaste notes that ‘a perceived violation of gender norms is at the root of many instances of assault, harassment and discrimination’. She also notes that when female to male transsexuals are assaulted, rape is part of the violence endured and that a high percentage of transgendered individuals are the victims of violence. The Ottawa police’s Hate Crimes Unit has begun to record incidents of transgendered hate crime as a specific category. It would appear that to date, this is the only Ontario unit known to do so; others likely include incidents in the category of sexual orientation. A one page memo regarding transsexual issues notes that human rights violations and acts of violence range from verbal abuse to murder and are perpetrated daily against transgendered and transsexual people in Canada. The memo highlighted the 1996 murders in Toronto of Shawn Keagan and Deanna Wilkinson, who were transgendered prostitutes.
Other jurisdictions have recognized the issue of hate crimes against transgendered people. In 1998, the state of California passed a hate crimes bill which clarified the protection for transgendered people. In March 1999 a bill entitled the Hate Crimes Prevention Act of 1999, which includes the ground ‘gender’, was introduced in the U.S. House of Representatives and is currently being reviewed in committee.
There is no statistical data about the rates of poverty for transgendered people. However, it was noted during consultation that transgendered persons experience severe economic hardship. This could be due to the difficulties in accessing medical and insurance services, discrimination in the workplace, and social and economic marginalisation. Mirha-Soleil Ross, the co-ordinator of ‘Meal Trans’ a program for transgendered people in Toronto, states that 90% of those people who utilise the program earn less than $10,000 a year.
(h) International Persecution of Transgendered People
The social rejection of transgendered persons manifests itself internationally through cross-border issues of recognition of transgendered individuals as refugees and related issues of returning them to their country of origin under international law. For example, a transgendered woman who claimed refugee status in Canada was deported to Mexico although she alleged fear of persecution if returned.
The International Gay and Lesbian Human Rights Commission (IGLHRC) frequently reports on human rights violations against sexual minorities, including transgendered people. For example, in June 1998 their newsletter reported the failure of ambulance personnel to assist a transvestite, Marcela, who had been stabbed and was left bleeding in the street for two hours until she died. There are also reported incidents of human rights violations toward transgendered women in Argentina, incidents of gay and transgendered people being murdered in Guatemala and police abuse in Turkey.
 See Moir, A. and Jessel, D., Brain Sex: The Real Difference Between Men and Women (New York: Viking Penguin, 1989).
 See S. Bradley, G. Oliver, K. Zucker, A. Cherniak, Experiment of Nurture: Ablatio Penis at 2 months, Sex reassignment at 7 months and a psychosocial follow up in Young Adulthood, in PEDIATRICS vol. 102, No 1, July 98, pg. 9.
 See M. Gilbert, Beyond Appearances: Transgenderism and Gendered Rationality, in Gender Blending, (Buffalo: Prometheus Press, 1997) at 58-69.
 See L. Master, Extended Informed Consent, (Transequal, 1994); See also Canadian Task Force for Transgendered Law Reform, note 14. For general discussion on the real life experience See L. H. Clemmensen, The Real Life Test for Surgical Candidates, M.A. Ch 7 1990 American Psychiatric Press U.S.A. Clinical Practice Number 14: Clinical Management of Gender Identity Disorders in Children and Adults) Ch 8, same book: Hormone Treatment and Surgery Robert Dickey, Betty W. Steiner; See also Blanchard, R. Gender Identity Disorders in Adult Men, Clinical Management of Gender Identity Disorders; Blanchard, et al., "Prediction of Regrets in Postoperative Transsexuals (34) Canadian J.of Psychiatry (Feb 1989); Blanchard et al., "Gender Dysphoria, Gender Reorientation, and the Clinical Management of Transsexualiam" J. of Counselling and Clinical Psychology at 295. See also referenced in note xiv above; Brown, M.L. and Rounsley, Chloe Ann, True Selves Understanding Transsexualism: For Families, Friends, Co-workers, and Helping Professionals (Jossey Bass, San Francisco: 1996).
 This surgery does not include a phalloplasty (a medical term that refers to the procedure to construct male external genitalia); at this time it is not medically recommended by the Gender Identity Clinic at the Clark Institute of Psychiatry.
 See note 8.
 See B. Hammond & Wilson, Myth, Stereotype, and Cross-Gender Identity, 21st Annual Feminist Psychology Conference in Portland, Oregon (1996) <http://www.transgender.org/tg/gic/awptext.html>.
 See note 8.
 Vital Statistics Act, R.S.O. 1990, Chapter V.4.
 S. Whittle, Legislating for Transsexual Rights: A Prescriptive Form, PRESS FOR CHANGE, 6/3/98 <http://www.pfc.org.uk/legal/whittle3.htm>.
 Brooks v. Canada Safeway Ltd.,  1 S.C.R. 1289.
 A. V. Scott, HIV/AIDS in the Transgendered Prison Population: A Comprehensive Strategy (Toronto: Prisoners’ HIV/AIDS Support Action Network [PASAN], 1998). See also: K. Namaste, Access Denied: A Report on the Experiences of Transsexuals and Transgenderists with Health Care and Social Services in Ontario, Submitted to Project Affirmation, July 1995; HIV/AIDS and Transgender Communities in Canada (Ontario: Genderpress, 1995).
 A. V. Scott, Do Transgendered Youth wish to be part of a Harassment and Discrimination Policy, which includes Gay, Lesbian and Bisexual Youth? (Unpublished, April 8, 1996).
 See also: K. Namaste at note 36.
 Health Insurance Act, R.S.O. 1990, Chapter H.6.
 See J. Harder, "Sex change surgery gets axe: Ontario cuts funding for expensive ‘lifestyle’ procedure", Toronto Sun (3 Oct 1998) 18; also see letter from Dr. Paul E. Garfinkel, President of the Clarke Addiction Research Foundation to Sandra Lang, Deputy Minister of Health, Ministry of Health, dated Oct 20, 1998.
 See note 8.
 See K. Namaste, Genderbashing: sexuality, gender, and the regulation of public space, Environment and Planning D: Society and Space (1996) Volume 14, pages 221-240.
 See note 8.
 See information flyer distributed at the Toronto Human Rights Film and Video Festival (December 1998).
 On September 28, 1998, Governor Pete Wilson signed into law AB 1999, a bill which clarifies that gender and gender expression are protected categories under California's existing hate crimes laws. District attorneys in San Francisco and Los Angeles counties, who supported AB 1999, already prosecute such hate crimes under existing law, but other district attorneys do not use this interpretation of the statute. The new law creates uniformity of application of the broader reading of the law across the state.
 The Hate Crimes Prevention Act of 1999 was introduced in the U.S. House of Representatives on March 11, 1999. This Act would: provide new authority for federal officials to investigate and prosecute cases in which the hate violence occurs because of the victim's real or perceived sexual orientation, gender, or disability; and remove the overly-restricted obstacles to prosecution by eliminating the current proof requirement that the victim was attacked because he or she was engaged in a federally-protected activity, such as going to vote. The Act is currently before the Senate Judiciary Committee.
 San Francisco Human Rights Commission, Investigation into Discrimination against Transgendered People, Chapter 4 - Findings and Recommendations (California: San Francisco, 1994).
 See note 44. (Info flyer in part references the recent deportation of transsexual community activist Shadmith Manzo by the Canadian government to Mexico where she now lives in hiding, unable to leave her place of residence without fearing for her life).
 See International Gay and Lesbian Human Rights Commission, Newsletter Vol. III, Issue 1(June 1998). See also Human Rights Watch IGLHRC, 1997 Year in Review.