Jurisprudential-Legal Analysis About Criteria and Origin of the Transsexual`s Gender Recognition

Document Type : Original Article

Authors

1 Associate Professor, Shahid Beheshti University. Family Research Institute

2 Assistant Professor. Shahid Beheshti University, Family Research Institute,

3 MA in Family Law. Shahid Beheshti University. Family Research Institute

10.48308/jlr.2023.230362.2438

Abstract

A group of rights are imposed on people based on their gender, therefore, gender recognition is a requirement for belonging of this part of rights to people. In most of the cases, it is possible to identify the gender easily and without the requirement of specialized precision, but in some cases, gender and sexual ambiguities make the identification difficult. One of these cases is transsexual status, who consider themselves to have a different gender from their physical structure.

The possibility of gender reassignment surgery prompted a group of jurists to consider the changed body structure as the basis for identifying a new gender. Following the custom, they considered the apparent gender to be the criterion of recognition and because of changing of gender due to the surgery, they considered the surgery to be the origin of the new gender recognition; An approach that is currently accepted in the legal system of our country. On the other hand, the results of scientific studies rejecting the effectiveness of the previous criteria, indicated the key role of gender identity in identifying the gender of transsexuals.

In contrast to these two views, the effectiveness of gender identity in the identification of transsexual and also the greater compatibility of this criteria with jurisprudential-legal foundations, all testify to the superiority of this criteria. The conclusion is that it is appropriate for the legislator to adopt a new approach for the identification of transsexuals while trying to enter the concept of gender identity into legal concepts.

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Legal Research Quarterly

Articles in Press, Accepted Manuscript
Available Online from 23 October 2023

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History

  • Receive Date: 13 February 2023
  • Revise Date: 26 July 2023
  • Accept Date: 23 October 2023

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