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 InstituteTehran, Iran.

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

3 L.L.M, Family Research Institute, Shahid Beheshti University, Tehran, Iran.

Abstract

A group of rights and duties are imposed on people based on their gender. Therefore, gender recognition is a requirement for belonging this part of rights and duties 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. Transsexuals consider themselves to have a different gender from their physical structure and therefore, they want to harmonize their body structure with their self-conscious gender.The advancement of medical science and 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 and decide to change the rules related to 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 criterion, indicated the key role of gender identity in identifying the gender of transsexuals. Revealing the effectiveness of gender identity in the identification of transsexuals and also the greater compatibility of this criterion with jurisprudential-legal foundations, all testify to the superiority of this criterion. It is appropriate for the legislator to adopt an effectiveness approach for the identification of transsexuals while trying to enter the concept of gender identity into legal concepts and consider to pulic order and good morals.

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Main Subjects

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History

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

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