Study Of The Legal Issues Of Gender Change

Although there is the principle of "prohibit discrimination on the basis of gender"in the law and there is no relation between gender and legal rights, gender is a significant factor in certain legal relations and legal concepts. The announcement of gender is made on the basis of biological characteristics by the birth attendant and then entered onto legal documents. Most of us will be satisfied with the assignment that we received moments after our birth, the legal recognition is correct. However, some people who will think the gender assignment at birth is God's wrong hope to change the gender. The disputes relevant to gender transition raise with transgender people increasing. There is neither provision which expressly deals with right to change gender, rules of sex reassignment surgery and gender recognition nor with transgender rights in household register, family, employment, health care and social security aspects, the transgender rights are hard to get legal safeguard.This dissertation explores legal issues on legal basis of gender transition,medical care to gender transition, legal recognition for gender transition, transgender family, nondiscrimination policy in employment systematically at the angle of respecting and protecting transgender personal rights though research and analyze foreign legislations, cases, theories and current situation in China on gender transition issues.This dissertation is divided into 5 chapters.Chapter I explores the legal basis of right to gender transition. Firstly reviews the articles of human right international convention, articles of European Convention on Human Rights, case ruling of European Court of Human rights, articles of International Bill of Gender Right and the new transgender athlete policy of International Olympic Committee, gets a conclusion that the right to gender transition is firstly human rights.Secondly, analyzes the constitutions of America and China, argues that the right to gender transition is constitutional right which basis are right to freedom, right to equality and personal right. At last explores the civil law basis of the right to gender transition, argues that it belongs to personal right and absolute right.Chapterâ…¡deals with the legal issues on medical care of gender transition.The medical care of gender transition itself depends on autonomy in private law, but the state must make laws to regulate it because it's of high ethic, high risk and no possibility to reverse. This chapter reviews Health Law Standards of Care for Transsexualism made by International Conference on Transgender Law and Employment Policy, compares the requirements for sex reassignment surgery, combines with the medical and judicial situations in China, proposes to delete the articles which will impose restrictions on patients in Sex Reassignment,such as the articles "the patient should submit the no-crime certificate", "the patient should obtain the agreement of police department in the record in advance", "the patient's sexual orientation should not be same sex","the patient should not have a marriage"and so on. At last proposes to set up medical security and medical insurance systems under market systems prudently.Chapterâ…¢discusses issues on legal recognition of gender transition. Reviews three models of legal recognition of gender transition:the Biological model, the medical model and the self-identity model.Suggests that the self-identity model adopted by some developed countries is the best model which is in line with the interests of transgender and is and will be the trend of law development. There is no condition for China to adopt this model, however, we can relax the requirement for the categories of sex reassignment surgery in medical model, transgender may choose one or several category of surgery, the determining role of genitals surgery in recognition of gender transition should be lessened. When every condition meet requirement in the future, we should adopt the self identity model for legal recognition of gender transition. In addition, we should establish the legal system of amending the gender designation on their birth certificate besides on besides on household register and identity document. The England model in which new birth certificate is issued and the old one is kept as a secrete should be referenced.Chapter IV is directed mainly toward transgender family legal issues which includes transgender marriage validity, divorce, custody to children and giving birth or adoption. Proposes transgender people have right to get marriage, divorce should not be required as a precondition before gender transition and divorce procedure should be applied after gender transition, gender transition should be specified as a reason to end the marriage. Transgender people have the right to reproduce or adopt children though artificial reproduce technology or adoption. Transgender parent has the right to raise and visit child after divorce which should not be deprived just because of the transgender identity.Chapter V explores the legal issues on how to protect transgender employees from discrimination. Starts out with an overview of American legislative system as well as a discussion of the cases interpreting and developing the statutes, analyzes both American federal constitution, Disability Law, Civil Rights Act and the state laws, administrative orders which played the significant roles in protecting transgender employees from discrimination and their history developments. At judicial angle analyzes the cases contents relevant to benefits, restroom assignment, harassment, demotion,termination,constructive discharge and retaliation,as well as the testimony and the legal ground. Then combining with current legislative and judicial situation in China, suggests to make up nondiscrimination laws expressly prohibiting discrimination against transgender employees. Courts should protect transgender employees from discrimination though interpreting laws before the laws are perfected. The constitutional procedure should be established to deal with discrimination cases.In terms of research innovation, there are four aspects in this paper:1.It's the first time to systematically research legal issues on legal basis of gender transition,medical care to gender transition, legal recognition for gender transition, transgender family and nondiscrimination in employment, which may have effect to make up for a deficiency.2. The right to change gender is content of gender right which is not yet to express in the law. It is human right, constitutional right and civil right. As constitutional right, it's corresponding country's obligation is to establish law to recognize and protect this right. As civil right, it's corresponding other civil subjects'obligation is not to infringe on this right.3. The self-identity model of gender recognition without requirement for sex reassignment surgery is the trend of law development. There is no condition for China to adopt this model, however, we can relax the requirement for the categories of sex reassignment surgery in medical model, transgender may choose one or several category of surgery, the determining role of genitals surgery in recognition of gender transition should be lessened.When every condition meet requirement in the future, we should adopt the self identity model for legal recognition of gender transition.4.divorce should not be required as a precondition before gender transition and divorce procedure should be applied after gender transition, gender transition should be specified as a reason to end the marriage.Transgender people have the right to reproduce or adopt children though artificial reproduce technology or adoption. Transgender parent has the right to raise and visit child after divorce which should not be deprived just because of the transgender identity.