The degree of legal recognition provided to transsexualism has been varied throughout the world. Many countries now extend legal recognition to sex reassignment by permitting a change of gender on the [birth certificate]?. A controversial question is the marriage of transsexuals, a question to which different jurisdictions have come to different answers. Issues also arise in areas such as the right to change one's name, eligibility to compete in single sex sports, and insurance and social security when the benifits available depend on one's sex.
In England, it was decided in the case of [Corbett v. Corbett]? that for the purposes of marriage a post-operative transsexual was to be considered to be of the sex they had at birth. South African courts have accepted this decision, but New Zealand courts, and more recently an Australian court (see Re Kevin - validity of marriage of transsexual), have rejected it. Some Canadian courts have also accepted the decision, though the law in question appears to vary from province to province.
Several European countries recognize the right of transsexuals to marry in their post-operative sex. France, Germany, Italy, the Netherlands, Portugal, and Sweden all recognize this right.
In [Rees vs. United Kingdom]?, the [European Court of Human Rights]? refused to strike down the English law refusing to recognize sex reassignment surgery for legal purposes. The applicant argued that the English law as in violation of Article 12 of the European Convention on Human Rights, which guarantees the right of men and women to marry and form a family; the Court however held that the Article only protected "traditional" marriage between persons of opposite biological sex. The Courts decision was based on the doctrine of the margin of appreciation, by which State Parties to the Convention are given some discretion, especially in regard to controversial social matters such as transsexualism and marriage.
The United States law on this issue varies from state to state, since the issuance of birth certificates and the recognition of marriages are largely state matters. Several courts have come to the conclusion that sex reassignments are not to be recognized for the purpose of marriage, including courts in Ohio, Texas and New York. Other courts (including courts in Kansas and New Jersey) have recognized the reassignments. Most U.S. states permit the name and sex to be changed on a birth certificate, either through amending the existing birth certificate or by issuing a new one. But Idaho, Ohio and Tennesee refuse to permit a change of sex, and Florida will not even change the name.
Singapore has also recently recognized the right of transsexuals to marry in their reassigned sex.
The first case to consider transsexualism in the U.S. was Mtr. of Anonymous v. Weiner, 50 Misc. 2d 380, 270 N.Y.S.2d 319 (1966), in which a post-operative transsexual sought from New York City a change of their name and sex on their birth certificate. The New York City Health Department refused to grant the request. The person took the case to caught, but the court ruled that granting of the request was not permitted by the New York City Health Code, which only permitted a change of sex on the birth certificate if an error was made recording it at birth. In the case of Matter of Anonymous, 57 Misc. 2d 813, 293 N.Y.S.2d 834 (1968), a similar request was also denied. However, in that case, and in the case of Matter of Anonymous, 64 Misc. 2d 309, 314 N.Y.S.2d 668 (1970), a request was granted for a change of name. The decision of the court in Weiner was again affirmed in Mtr. of Hartin v. Dir. of Bur. of Recs., 75 Misc. 2d 229, 232, 347 N.Y.S.2d 515 (1973) and Anonymous v. Mellon, 91 Misc. 2d 375, 383, 398 N.Y.S.2d 99 (1977). However, despite this, there can be noted as time progressed an increasing support expressed in judgements by New York courts for permitting changes in birth certificates, even though they still held to do so would require legislative action.
Another important case was Darnell v. Lloyd, 395 F. Supp. 1210 (D. Conn. 1975), where the court found that substantial state interest must be demonstrated to justify refusing to grant a change in sex recorded on a birth certificate.
The first case in the United States which found that post-operative transsexuals could marry in their post-operative sex was the New Jersey case M.T. v. J.T., 140 N.J. Super. 77, 355 A.2d 204, cert. denied 71 N.J. 345 (1976). Here the court expressly considered the English Corbett v. Corbett decision, but rejected its reasoning.
In K. v. Health Division, 277 Or. 371, 560 P.2d 1070 (1977), the Oregeon Supreme Court rejected an application for a change of name or sex on the birth certificate of a post-operative transsexual, on the grounds that there was no legislative authority for such a change to be made.
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