gender reassignment act 2000

Caldwell, Natasha --- "Workplace Appearance Standards" [2009] CanterLawRw 1; (2009) 15 Canterbury Law Review 1

WORKPLACE APPEARANCE STANDARDS: UNDRESSING THE LAW

NATASHA CALDWELL*

I. INTRODUCTION

If a lady rebels against wearing high-heeled shoes, she should take care to do so in a very smart hat. (George Bernard Shaw, 1928)

As dress and appearance are forms of social language, serving to communicate 'a panoply of social messages', 1 it is unsurprising many employers seek to impose restrictions on the appearance of their employees in the workplace. Although the imposition of gendered appearance standards in the workforce may appear unobjectionable to many, such requirements not only have problematic normative underpinnings but also present significant difficulties for individuals whose gendered identities do not conform with societal norms. Significantly, the issue as to whether a gender based appearance requirement can contravene New Zealand's human rights legislation has been left open by the New Zealand Employment Court, and judicial examination of this pertinent issue has been sparse in this jurisdiction. However, a significant corpus of law regarding the legality of sex-differentiated employment dress codes has developed under the comparable legislative frameworks of America and England. In both jurisdictions the relevant legislation prohibits unlawful discrimination in employment, with reference to the less favourable treatment of employees on the grounds of 'sex', and the definitions of unlawful discrimination in both jurisdictions thus bear a striking similarity to that found in the provisions of New Zealand's domestic human rights legislation. This article therefore aims both to analyse the legal reasoning employed by the overseas courts in their determination of the legality of gender based dress codes and to evaluate the policy concerns that have been relied upon to reject recognition of such discrimination claims. This analysis is undertaken with a view to ascertaining the appropriate judicial path that the New Zealand courts should take in determining the legality of gendered appearance standards under New Zealand's human rights framework. A comparative analysis of the international jurisprudence has not been previously undertaken in academic literature; and the question of how the New Zealand courts would determine the legality of appearance standards under current legislation has not been subjected to previous examination. This article therefore seeks to uncover the impact that the international jurisprudence could have in New Zealand's legislative setting and, finally, to propose a way forward.

II. PRELIMINARY ISSUES

'Sex' and 'Gender'

In order to examine the significant role that dress and appearance can play in the construction of one's gendered identity, it is necessary to examine the theoretical exposition that has developed in regards to the distinctions to be drawn between the categories of 'sex' and 'gender'. The term 'sex' is used to refer to the irreducible biological classification that is made between the sexed male and female body, pursuant to the medical procedure of chromosomal typing or the ascertainment of an infant's genitalia at the time of birth. 2 An individual's classification into the sexed category of male or female thus amounts to no more than a simple biological delineation. In contrast, the conception of 'gender' encapsulates the more elusive concept of the masculine or feminine characteristics that identify an individual as male or female. 3 The two concepts are quite distinct. Essentialist ideology has historically prescribed that an individual's gendered identity is inherently linked to his or her biological sex. Accordingly, under the essentialist theoretical framework, the behaviours and characteristics associated with the concepts of masculinity and femininity are regarded as intrinsically entwined with the sexed body. 4 This rigid binaristic division leaves no room for any acceptance of the possibility of gender fluidity occurring within its confines. However, a conflicting proposition which emerges from post-modernist thought is the assertion that gender is in fact inherently fluid. In contrast to the essentialist notion that an individual's gendered identity is biologically predicated upon the sexed body, post-modern scholarship proposes that gender can be viewed as a 'free floating artifice' that remains unlinked to an individual's biological sex. 5 The perceived intrinsic nature of gender identity is argued to be created through a series of repeated acts that include 'bodily gestures, movements and the stylisation of the body', rather than through biological dictates. 6 Gender is accordingly viewed as essentially performative. In light of the fundamental role that the 'stylisation of the body' holds in the construction of gender identity, it is no surprise that dress, grooming, and appearance, are generally seen to be the most important indicator of gender difference in daily social interactions. 7 The use of gender based dress and appearance standards in the workplace is thereby an effective tool by which gender differences can be accentuated. 8 However, while gendered dress requirements may appear to be superficially benign, such standards do have harmful normative implications. It is accordingly instructive to examine the fundamental policy concerns that arise with the imposition of such standards in the workplace.

Female Equality

A fundamental aim of sex discrimination law is to ensure that women are assured of access to the same rights and freedoms as are granted to men. 9 However, any judicial approach that allows employers the ability to impose standards of grooming or dress that perpetuate dominant gender norms will inevitably hinder the achievement of this objective. In order to understand the feminist concerns regarding the imposition of gendered dress codes in the workplace, it is necessary to explore briefly both the normative underpinnings of dominant gender ideologies, and the societal structure within which they are created. The prevailing gender ideologies that pervade Western society are premised upon the purported contrast between male and female behavioural characteristics. Under dominant cultural dictates, true masculinity is equated with the traits of aggressiveness and power, while the ideal characteristics of femininity are believed to include the traits of submissiveness and servility. 10 Such gender norms are thus framed within a patriarchal structural framework predicated upon a societal belief in masculine dominance and superiority. 11 A logical corollary of this cultural framework, which reinforces the purported inferiority of females, is the subsequent societal emphasis placed on the importance of a female's aesthetic appearance. Under patriarchal ideology the significance of a female's appearance gains paramountcy, as it is considered vital that women are able to both please and remain attractive to men. 12 Female dress is a powerful tool by which such oppressive norms can be propagated. Orthodox items of female attire, such as high heeled shoes and skirts, communicate the demeaning messages of female weakness, dependency, and availability for sexual or emotional service. 13 Such social messages are inherently degrading for all women.

Accordingly, the reproduction of dominant gender appearance norms in the employment arena is particularly problematic. Dress and grooming standards that mandate conformity with stereotypical forms of feminine appearance reinforce derogatory ideals which can effectively inhibit female progression in the workforce. Skill, competence, and work ethic should always hold greater priority in the workplace than the ability of a female employee to portray a feminine appearance. 14 However, any judicial acceptance of workplace appearance standards that encompass traditional notions of femininity reinforces the view that a female employee's ability to conform to aesthetic feminine ideals can legitimately amount to an important and relevant employment consideration. Such a prospect has far-reaching implications, and is hardly conducive towards ensuring attainment of the goal of achieving female equality in the workforce. It is apparent that any emphasis placed upon the appearance of females in the workplace will hinder intellectual and job development in a number of ways. The American Psychological Association has established, for instance, that concerns held by females about their appearance reduces the availability of their cognitive resources required to process actions and thoughts. 15 Mandating compliance with a traditionally feminine appearance in the workplace has also been found to interfere with the respect accorded to the professional capabilities of female employees. 16 Such consequences are manifestly undesirable.

Transgender Equality

Not only do gendered based dress codes present obstacles to the goal of attaining female equality in the workforce, they also create significant employment barriers for transgendered individuals. The term 'transgender' is used to refer to a 'person whose identity does not conform unambiguously to conventional notions of male or female gender, but combines or moves between these'. 17 Thus, a transgendered individual will often outwardly present a gender identity that may not reconcile with his or her biological sex. As emphasised by the Human Rights Commission, all transgendered people should, by virtue of their common humanity, be entitled to the protection and promotion of their human rights. 18 However, an employment dress policy that requires a connection between gendered presentation and biological sex will often carry significant psychological implications for transgendered people, and may create unassailable barriers towards their entry and assimilation in the workforce. 19 The imposition of gender based appearance requirements will thus both marginalise and subordinate transgendered individuals. Such an outcome cannot be seen to accord with the ideals of social justice underpinning anti-discrimination legislation.

III. NEW ZEALAND JURISPRUDENCE

The Human Rights Act 1993

The Human Rights Act 1993 20 was enacted with the goal of ensuring the effective protection of human rights in New Zealand, and of honouring New Zealand's commitment to international human rights covenants. 21 A fundamental tenet that permeates such international instruments is the principle that all individuals should be granted the right to equality of opportunity and treatment in employment; 22 and s 22 of the Human Rights Act reflects the importance of this right through its explicit proscription of unlawful discrimination in employment on any of the prohibited grounds. 23 This prohibition of unlawful discrimination in employment is also reflected in s 104 of the Employment Relations Act 2000, 24 contravention of which can give rise to a personal grievance claim. 25 The particular ground of discrimination that is the subject of discussion in this article is that of 'sex, including pregnancy and childbirth' under s 21(1)(a) of the Human Rights Act. 26 Although this is a prohibited ground of particularly longstanding, the potential breadth of the parameters of the term 'sex' remains largely untested. 27 In light of the uncertainty surrounding the possible scope of s 21(1)(a) of the Act, the issue as to whether the prohibition of unlawful discrimination on the grounds of 'sex' could extend to the prohibition of gender based dress codes is one of some significance.

Williams v Kimberlys Fashions Ltd

The potential utility of New Zealand's human rights legislation in prohibiting gendered appearance standards remains an unresolved issue, following the decision of the Employment Court in Williams v Kimberleys Fashions Ltd. 28 In Williams, the Court was presented with the opportunity of exploring the issue of whether the defendant's requirement that the complainant (a female sales assistant in its retail fashion store), wear facial make-up was in contravention of New Zealand's human rights legislation. The complainant objected to the wearing of make-up, on the grounds that cosmetic foundation reacted badly with her skin, and she believed that because 'it was no longer the 1950s' women should be able to choose whether or not to wear make-up at work. 29 While it was accepted by the Court that the defendant's requirement had had a significant effect on the complainant's psychological well-being, by creating feelings of despondency over her appearance, and exacerbating symptoms of depression, 30 the Court, through opting to resolve the issue on a contractual basis, successfully evaded undertaking any substantive analysis of the wider discrimination issues that the compulsory make-up requirement could entail. Holding that there was neither a contractual condition necessitating the use of facial make-up for the complainant, nor any evidence that attempts to introduce the requirement as part of the employer's house rules were properly communicated to the complainant, the Court concluded that the respondent had no contractual entitlement to insist upon compliance with this appearance standard. Accordingly, the respondent's insistence on the complainant's use of facial make-up, despite knowledge of the complainant's aversion to cosmetics, was held to amount to a breach of its duty to 'not act in a manner calculated to destroy or seriously damage the employment relationship'. 31 This breach formed one of the 'major factors' 32 that contributed to the success of the complainant's alternative claim of constructive dismissal. The resolution of this issue on contractual grounds allowed the Court to avoid examination of the question as to whether a contractual condition necessitating the use of facial make-up for female employees could fall foul of New Zealand's human rights legislation. The possibility of a full substantive analysis of the matter was in fact given short shrift. Simply acknowledging that the issue was 'fraught with difficulties' the Court declared that any substantive engagement with the matter was better left for 'argument on another occasion'; 33 and thus the key issue, which is of considerable importance for human rights law in New Zealand, was very briefly dispensed with and remains unresolved. Although the Employment Court in Williams declined to provide any determinative guidance on the legality of the compulsory facial make-up requirement, a few brief obiter observations made by the Court do shed some light on the current judicial attitude towards the imposition of gender based grooming requirements in the workplace. Both the Court's observation that 'there may well be workplaces where the nature of the work requires facial make-up, such as a women's cosmetic retail shop', and its reasoning that it was 'not beyond argument' that an employer in a woman's clothing boutique could require its staff to wear facial make-up if it was a 'mutual contractual requirement', 34 indicated a judicial belief in the assumed innocuous nature of this grooming requirement. This judicial attitude is of some concern. Considerable legal and policy issues surround the imposition of gender based appearance requirements, and the Court's cursory treatment of these issues was therefore unfortunate. The reluctance to examine the issues in greater depth was not, however, altogether surprising. Any judicial determination of the legality of gender based appearance standards would require the courts to explore the intricacies of sex and gender identity, and to grapple with significant arguments of policy. The task does not lend itself to easy resolution. We are thus drawn to question how the New Zealand courts should attempt to confront this crucial matter. And in order to ascertain the appropriate judicial path that should be taken, it is instructive to examine and evaluate the legal principles that have arisen from the international jurisprudence surrounding the legality of the imposition of gender based appearance standards in the workforce.

IV. AMERICAN JURISPRUDENCE

Title VII Civil Rights Act 1964

A very substantial body of jurisprudence regarding the legality of sex-differentiated dress codes has developed under America's federal anti-discrimination legislation, Title VII Civil Rights Act 1964. This legislation provides that it shall be an unlawful employment practice for an employer to discriminate against any individual with respect to his or her terms or conditions of employment because of his or her 'sex'. 35 While the concept of discrimination is not defined by the legislation, it has been judicially established that direct discrimination will be established under the Act when an employer treats some employees 'less favourably' than others pursuant to a prohibited ground of discrimination. 36 Accordingly, discrimination under Title VII would be found to have occurred where an employee receives less favourable terms or conditions of employment, because of his or her sex. It becomes immediately apparent that this concept of direct discrimination is analogous to the prohibition under the Human Rights Act 1993 of 'less favourable' terms or conditions of employment by reason of sex pursuant to s 22(1)(b). 37 While the concept of indirect discrimination is also prohibited under Title VII, 38 an appearance standard sex discrimination claim inevitably falls within the scope of a direct discrimination claim. A gender based appearance standard, such as a requirement to wear make-up, does not apply equally to all male and female employees, and is thus not a term or condition that is neutral on its face. 39 The American cases therefore concern direct discrimination alone. Very significantly, the legislative prohibition of discrimination on the grounds of 'sex' under Title VII has been accorded a liberal interpretation by the United States Supreme Court, pursuant to its proscription of sex stereotyping in the seminal decision of Price Waterhouse v Hopkins. 40 Here, the female claimant, employed as a senior manager within the employer's accounting firm, was denied a promotion to partnership level, despite having attained consistent recognition for her professional capabilities. The coup de grace of her subsequent sex discrimination claim, brought under Title VII, was the advice given by an employing partner to the claimant to 'walk more femininely, talk more femininely, dress more femininely, wear make-up, have [her] hair styled and wear jewellery'. 41 Justice Brennan, delivering the plurality judgment, held that the employer's refusal to promote the claimant — an employment decision that was motivated by sex stereotyping amounting to an 'impermissibly cabined view of the proper behaviour of women' — contravened the legislative protection provided by Title VII. 42 Hereby, it was established that employment decisions driven by stereotyped gendered ideals could amount to employment discrimination that occurred because of 'sex', and the Supreme Court's acknowledgement that requiring an employee to conform to stereotypes associated with his or her sex would contravene Title VII was a groundbreaking step in the progression of America's sex discrimination law. 43 Explicitly recognising the dangers of propagating gendered ideals in the workplace, the plurality judges' landmark pronouncement that 'gender must be irrelevant to employment decisions', 44 and their emphatic affirmation that 'Congress intended to strike at the entire spectrum of disparate treatment of men and women deriving from sex stereotypes', 45 revealed an unmistakable willingness to look beyond the rigid dichotomies of biological sex so as to recognise the harms perpetuated through employer adherence to the orthodox ideals of masculinity and femininity.

Jespersen v Harrah's Operating Company

The United States Supreme Court has not yet been presented with the opportunity to provide definitive guidance on the appropriate judicial approach to be taken towards the specific dress code issue, but the recent decision of Jespersen v Harrah's Operating Company, 46 heard en banc by the Ninth Circuit Court of Appeals, is now widely accepted as having provided authoritative framework by which dress code discrimination claims are to be decided in the United States. 47 This appellate decision accordingly provides an excellent platform from which the prevailing American judicial approach towards the imposition of gender based dress codes in the workplace can be explored.

In order to examine the legal analysis employed by the Ninth Circuit in Jespersen, it is necessary first to traverse the factual background. The impetus behind this sex discrimination claim was the complainant's dismissal from employment as a bartender following her non-compliance with the employer's requirement that female bartenders wear full facial make-up during their hours of work. This make-up stipulation, encompassed within the employer's wider 'Personal Best' dress policy, had been introduced under the guise of a wider 'Beverage Department Image Transformation' scheme. 48 Although the dress policy mandated use of the same unisex uniform for male and female bartenders alike, the grooming standards under the policy differed significantly for both sexes. In contrast to the requirements that males had to wear their hair above collar length, and have clean hands with neatly trimmed nails, the hair of female bartenders was to be presented in a style that was 'teased or curled', while finger-nails were to be adorned with nail-polish. 49 The make-up requirement included within the policy stipulated that face powder, blush, mascara and lip colour was to be worn in 'complementary colours' at all times. 50 The claimant, an exemplary employee who had provided the employer with twenty years of service, objected to the make-up requirement, on the grounds of the alleged degradation that compliance with the obligation entailed. The Court was presented with two alternative grounds upon which the dress policy was argued to amount to discrimination because of sex. First, it was asserted that, in accordance with established precedent, the female dress code contravened Title VII through imposing an unequal burden on female employees. Secondly, the Ninth Circuit was urged to apply the Price Waterhouse principle to recognise the illegality of the make-up rule pursuant to its requirement that women conform to sex stereotypes as a condition of employment. These contrasting approaches will now be discussed in turn.

Unequal Burdens Approach

American jurisprudence has established that a sex-differentiated dress code will amount to a less favourable term or condition of employment under Title VII, if compliance with the overall gender based dress code as a whole can be seen to be unduly burdensome for one sex. Bearing in mind that this approach is simply a judicial interpretation of what constitutes less favourable terms of employment and conditions of work, 51 it is apparent this approach would be open for the New Zealand courts to adopt under New Zealand's comparable legislation. The unequal burdens approach has not in fact always prevailed in American law. An examination of the vast American jurisprudence surrounding the legality of sex-differentiated dress codes reveals a significant maturation of the judicial approach to the issue over recent decades. In the embryonic stages of the dress code jurisprudence, judicial reliance was placed on the intrinsically mutable nature of dress requirements in order to successfully defeat discrimination claims, 52 and aggrieved claimants were confronted with a virtually insurmountable hurdle. However, with the increasing recognition that the scope of the legislative protection provided by Title VII extended beyond the protection of only immutable characteristics, the previous judicial dependence on the concept of mutability to defeat dress code discrimination claims began to be superseded by the alternative inquiry as to whether a sex-differentiated dress code could be seen to unduly burden one sex over the other. 53 Thus, requirements where a workplace uniform was imposed on female employees alone, 54 or where the requisite female uniform was sexually revealing, 55 or where only female employees were required to comply with workplace weight requirements 56 were all found to be unduly burdensome. A salient feature of this judicial approach is that the effect of the dress code as a whole is examined, rather than the particular appearance requirement that may be the subject of complaint. While no clear judicial explanation has been offered for the underlying reasoning behind this principle, 57 it would appear, as explained below, to be driven by a judicial reluctance to recognise the viability of such discrimination claims. The judicial proclivity towards comparing the purported burdens associated with compliance with a sex-differentiated dress code was formalised by the Ninth Circuit in Frank v United Airlines. 58 Illustrating a tacit acceptance of gender differentiated appearance standards, the Court established the governing principle that gendered appearance codes which impose 'different but essentially equal burdens on men and women' will not amount to direct discrimination under Title VII. 59 Thus, although the court in Jespersen was presented with the proposition that a sex-based difference in appearance standards should of itself amount to direct sex discrimination, such an assertion was rejected. Rather, the Court held that the unequal burdens analysis was required in order to establish that the complainant was treated less favourably with regards to her terms and conditions of employment. 60 The Jespersen majority's unquestioning acceptance of this formulation has now firmly entrenched the unequal burdens test as the guiding framework to be followed in dress code discrimination claims in the United States. Despite the majority's explicit endorsement of the unequal burdens approach in Jespersen, their subsequent application of the test vividly illustrates the inherent difficulties that arise with this judicial formulation; and the intrinsically amorphous nature of the test was revealed through the Court's preferred construction of the respective 'burdens' to be compared under the male and female dress codes. Opting for a narrow construction of the 'burdens' that were to be measured, the majority focused solely on the monetary and temporal constraints created by compliance with the differing dress policies. 61 Following this approach, the female dress policy was held to impose no greater burden on female employees than that experienced by their male counterparts. Although the majority accepted that the policies contained different grooming standards for male and female employees, it was nevertheless argued that when the overall codes were respectively considered neither could be seen to be more onerous for one sex than the other. 62 Unfortunately, no comprehensive analysis accompanied this finding. Rather, reliance was placed on the lack of documentary evidence provided by the claimant in regards to the time and cost requirements necessitated by compliance with the dress policy. 63 The possibility that the unequal burdens test could potentially be satisfied by clear and compelling evidence of both monetary and temporal disparities was left open by the majority, but the majority's clear reluctance to countenance that the time and cost constraints of the 'Personal Best' code could have satisfied the unequal burdens test was questionable. When a comparative analysis of the male and female dress codes is undertaken, in the fiscal and temporal terms prescribed by the majority, a stark discrepancy in the burdens associated with the respective appearance standards is in fact revealed. As acknowledged in the pragmatic dissent of Judge Kozinski, when a comparison is made between the differing grooming standards for the hands, hair and face, it is indisputable that a greater burden was created for female employees. 64 As cogently argued by the Judge, any appearance standard that requires female employees to wear facial make-up creates a significant temporal burden, as the application of cosmetic make-up involves 'an intricate and painstaking process [that] requires considerable time and care'. 65 The financial expenditure associated with the required use of cosmetic products was also alluded to by Judge Kozinski, who appeared perplexed that the majority could be in 'any doubt that putting on makeup costs money'. 66 The judge's reasoning here is surely persuasive. It is well established that the economic burdens associated with make-up use can be substantial, 67 and given that there was no equivalent expenditure required of male employees under the 'Personal Best' policy, the greater economic burden should have been self-evident. If the unequal burdens test were to be accepted, it is clear that the dress code at issue in Jespersen should have satisfied the test's requirements. While the dress code examined by the Ninth Circuit in Jespersen could readily have satisfied the unequal burdens test, it must be emphasised that the foundations of the actual test itself are questionable, if not fundamentally flawed, and that judicial adherence to this approach is undesirable. First, the focus by way of comparison on the total effect of the dress code for women when compared with the effect of the dress code for men is obscure. As argued by Judge Pregerson, the fact that a dress policy contains sex-differentiated requirements for both male and female employees should not exempt a particular requirement from scrutiny. 68 Secondly, the test itself is plagued with imprecision, as no definitive guidance as to the parameters of the burdens to be measured currently exists. Surprisingly, the vagueness surrounding the intended scope of the test has not perturbed the judiciary but rather been seemingly embraced. The remarks of the lower Court that there was no need to clarify the boundaries of the judicial approach, as it did not 'equate to an exact science yielding results with mathematical certainty' 69 illustrates well the lack of judicial desire to clarify the parameters of the 'burdens' to be compared. This judicial ambivalence is unsatisfactory: the inherent flexibility of the test's boundaries grants the courts too much license to allow subjective policy matters to influence the scope of the test's parameters, and the outcomes of any judicial application of the approach will inevitably be highly variable. 70 Such concerns are well illustrated by the Jespersen decision itself. Although the consideration of the demeaning nature of a gender based dress code had previously fallen within the scope of a 'burden' to be compared, 71 the uncertainty surrounding the test's intended scope enabled the majority in Jespersen to restrict their consideration to concerns of a purely fiscal and temporal nature.

It must also be emphasised that the majority's narrow construction of the 'burdens' to be compared under the approach is inherently problematic from a normative perspective. In particular, the Court, by limiting its comparative analysis to a consideration of time and cost constraints, was able to eschew any examination of the implicit harms that can be occasioned through requiring employee compliance with the dominant norms of femininity. For instance, this restricted construction enabled the majority both to overlook the claimant's sense of ignominy, suffered as a result of the compulsory make-up requirement, and to evade exploration of the wider normative underpinnings that such a requirement entailed. 72 This approach, through enabling the Court to successfully side-step any normative discussion of the desirability of gendered appearance standards, seemingly ignores Title VII's fundamental aim of challenging harmful employment practices. It has accordingly been suggested that the unequal burdens test should be expanded to include consideration of the underlying harms occasioned by the perpetuation of dominant gender norms within its parameters. 73 This argument does have some merit. Nevertheless, it must be noted it fails to identify the core difficulty that arises with the unequal burdens test. Any argument that advocates the expansion of the test to include consideration of intangible burdens within its parameters implicitly accepts the validity of this form of comparative assessment. Such unquestioning acceptance of the test's foundations is dubious, as it is clear that any attempts to compare the purported burdens that arise with differing dress codes will inevitably require recourse to some form of arbitrary nominalism. 74 While it may be feasible to attempt to compare the time and costs associated with compliance, which still requires the court to engage in a somewhat protracted fact-finding inquiry, 75 any suggestion that a court is ostensibly able to measure and weigh the subjective degradation that may be experienced under each gender based dress code is untenable. Attempts to compare the severity of the implicit harm that may be occasioned through a restriction on a male employee's hair length, with the requirement that a female employee wear make-up will be entirely dependent upon the judiciary's subjective inclinations. However, it can be conceded that a judicial inquiry into the normative foundations of an appearance standard, under the more expansive approach, is certainly a more attractive option than adherence to the narrow approach advocated by the majority in Jespersen.

It must also be noted that the test operates upon the illogical premise that any burden associated with a sex-differentiated dress code is able to be considered as inherently benign if it can purportedly be compared to a restriction in the contrasting dress code for the other sex. 76 As will be discussed below, this illustrates well the significant difficulties that arise with the formal equality construct that permeates anti-discrimination law. The broad method of comparative analysis adopted by the Court demonstrated a judicial acceptance that any gender based dress requirements imposed upon the other sex are sufficiently similar in nature to be included within the comparison required to establish that less favourable treatment has occurred. 77 Such a premise offers little hope for any sense of progression in sex discrimination jurisprudence. This comparative approach offers no protection for employees whose gendered identities do not conform with societal norms, and it fails to allow for consideration of the undesirable ideologies propagated by the dominant norms surrounding female appearance. It would be unfortunate indeed if the New Zealand courts sought to adopt this flawed approach.

Sex Stereotyping Approach

As discussed above, the Supreme Court's judgment in Price Waterhouse provided an important and overt judicial recognition that any condition of employment which required compliance with gender norms could constitute discrimination on the grounds of 'sex'. 78 At first sight, this principle would appear to be of significant utility to employees seeking to challenge dress codes which encompass stereotypical gendered ideologies. It is clear that through proscribing the perpetuation of sex-stereotyping in the workforce the Supreme Court can be seen to have 'articulated a doctrinal framework' that provided federal courts with the tools to identify and proscribe any workplace rules that operated to reinforce gendered expectations. 79 Indeed, under the Price Waterhouse framework, it could easily be contended that an appearance requirement that requires a female employee to comply with the dominant norms of femininity would amount to a 'less favourable' term or condition of employment that arose because of the employee's sex.

The Ninth Circuit in Jespersen was presented with such an argument. In contrast to the District Court's rejection of this proposition, the Court did concede that any appearance standard encompassing 'impermissible sex stereotyping' could be challenged under the Price Waterhouse decision. 80 Such a judicial acknowledgment would at first sight appear to have been a significant step forward in dress code discrimination jurisprudence. However, any aspirations of truly noteworthy progression were rendered hollow by the majority's narrow interpretation of the 'impermissible sex stereotyping' standard. By emphasising that the 'Personal Best' policy was neither 'sexually provocative', nor driven by an intention to 'stereotype women as sex objects', the majority indicated that the 'impermissible sex stereotyping' standard should be confined to dress standards that explicitly sexualised female employees. 81 Such a proposition is rather puzzling, and is irreconcilable with the underpinning rationale of the Price Waterhouse decision that gender must be irrelevant to employment decisions. Additionally, the majority's failure to contemplate that the facial make-up requirement was driven by gendered stereotyping is at complete odds with the Price Waterhouse decision itself. As the Supreme Court had viewed the suggestion that the female claimant wear make-up to be evidence of sex stereotyping, it is certainly surprising that the compulsory make-up requirement at issue in Jespersen was not subjected to greater scrutiny. 82 The Jespersen decision thus appears to narrow the scope of the Price Waterhouse principle for no apparent reason. The majority's failure in Jespersen to consider the potentially pernicious effects of the employer's facial make-up requirement was made possible by their assertion that the requirement should not be considered in isolation, but rather that the sex-stereotyping that was evident in the policy as a whole should be considered. Following this approach, it was reasoned by the majority that in light of the unisex uniform included within the policy there was no evidence that the policy as a whole was adopted to 'make women bartenders conform to a commonly accepted stereotypical image of what women should wear'. 83 The majority's approach is troubling, and offers little hope for ensuring the attainment of female equality in the workplace. As argued by Judge Pregerson in his dissent, the majority's refusal to give separate consideration to the make-up requirement enabled otherwise impermissible gender stereotypes to be neutralised. 84 Incontrovertibly, the facial make-up requirement could have been subjected to challenge under the Price Waterhouse principle. As acknowledged in Judge Pregerson's dissent, any make-up requirement is inevitably driven by sexual stereotyping, because it produces the 'inescapable message, that women's undoctored faces compare unfavourably to men, because of the cultural assumption and gender based stereotype, that women's faces are incomplete, unattractive, or unprofessional without full make-up'. 85

As such, the normative underpinnings of make-up use are disturbing and well established. Make-up as a form of cosmetic adornment originated from the intention to replicate female sexual arousal, 86 and the prevalent use of cosmetic make-up in Western society is now widely acknowledged to be driven by the stereotypical assumption that women should appear ornamental in appearance, so as to appear attractive to men. 87 Accordingly, any employment requirement necessitating the use of make-up during working hours propagates stereotypical notions of femininity which will inevitably hinder the effective advancement of women in the workforce.

Price Waterhouse and Transgendered Rights

The majority's assiduous attempts in Jespersen to narrow the application of Price Waterhouse not only lacked a sound legal base but appeared to be fundamentally at odds with the developing American jurisprudence surrounding transgendered rights in employment. Historically, federal courts have been reluctant to hold that employment discrimination on the grounds of an employee's transgender identity could constitute discrimination on the grounds of 'sex', because of the judicial belief that Title VII was only intended to prohibit 'discrimination against women because they are women, and men because they are men'. 88 However, the judicial treatment of transgendered discrimination has recently become marked by an increasingly liberal attitude. In the seminal decision of Smith v City of Salem, 89 the Sixth Circuit of the Court of Appeals indicated that any judicial denial of the protection of transgendered individuals under Title VII had been 'eviscerated' by the decision of Price Waterhouse. 90 The Court upheld a sex discrimination claim brought by a male fire-fighter, diagnosed with gender identity disorder, who was dismissed from employment after informing his employers of his wish to present as a woman at work. It was argued by the Court that 'discrimination against a plaintiff who is transsexual, and fails to act or identify with his or her gender, is no different from the discrimination directed against Ann Hopkins in Price Waterhouse, who, in sex-stereotypical terms, did not act like a woman'. 91 This reasoning is compelling. In light of the growing judicial acceptance that Price Waterhouse can be invoked to protect transgender individuals who do not conform to societal gender norms, it appears all the more anomalous that under Jespersen such individuals could nevertheless be dismissed for a failure to comply with gendered appearance standards

Bona Fide Occupational Qualification

The Ninth Circuit's questionable application of the unequal burdens test, and its narrow reading of the Price Waterhouse principle, resulted in a finding that facial make-up requirement did not contravene Title VII's prohibition of discrimination on the grounds of sex. Accordingly, there was no need for the respondent employer to attempt to justify its dress policy under the statutory 'Bona Fide Occupational Qualification' (BFOQ) defence. Nevertheless, in light of the unpersuasive reasoning employed by the majority in Jespersen, the potential application of the BFOQ defence to the Jespersen case merits some comment, for while this defence is far wider than the equivalent exception provided by s 27 of the Human Rights Act 1993 92 the established principles surrounding the justification might provide some assistance to the New Zealand courts. 93 Title VII provides that employment discrimination which occurs 'because of sex' will be justified in situations where the 'discrimination is reasonably necessary to the operation of the business or enterprise'. 94 In contrast to the judicial ambivalence discernable in the approach taken by federal courts towards the recognition of sex discrimination in the workplace, the BFOQ defence is treated with a significant degree of respect. The Supreme Court has stipulated that the justification is 'meant to be an extremely narrow exception to the general prohibition of discrimination on the basis of sex', 95 and Federal courts have taken heed of this rigorous instruction. It is now well established that an employer's desire to accede to the demands of customer preferences does not satisfy the stringency of the narrow exception. 96 For instance, in the influential decision of Wilson v Southwest Airlines, 97 it was confirmed that any judicial inquiry under the BFOQ defence must focus 'on the particular service provided and the job tasks and functions involved, not the [employer's] business goal'. 98 It was also emphasised by the court that the BFOQ provision cannot be employed to justify the exploitation of female sexuality to ensure the generation of profit. 99 Accordingly, the employer's claim that the financial viability of its airline was dependent upon hiring solely young and attractive females was emphatically rejected. While the scope of the BFOQ justification has been subjected to considerable interpretative rigidity by the courts, various grounds upon which the defence can succeed have been established. 100 Of most significance to our discussion of gendered dress policies, is the judicial acceptance that female sexuality can be legitimately exploited in instances where the primary purpose of the business is sexual entertainment. For instance, in St Cross v Playboy Club of New York, 101 it was accepted that the employer's practice of hiring solely female waitresses, who were required to wear revealing 'bunny' outfits whilst serving cocktails, was justified on the basis that the dominant purpose of the Playboy Club was to 'titillate and entice male customers'. 102 Thus, sexually charged uniforms would be permissible in businesses that aimed to provide some form of sexual gratification for their customers. Examining these established precedents, it emerges that the employer in Jespersen would have struggled to surmount the hurdle posed by the BFOQ defence. As the bartenders' job description was to 'maintain courteous professional working relationships with customers and co-workers, and to make drinks effectively and efficiently', 103 it becomes clear that the purported need for female staff to maintain a traditionally feminine appearance could not be seen to fall within the essence of the job tasks and functions required by the employer. Indeed, when the potential applicability of the BFOQ justification to the Jespersen case is examined, the absurdity of the compulsory make-up requirement is well and truly highlighted.

V. ENGLISH JURISPRUDENCE

The limited English jurisprudence that has developed in regards to the legality of gender specific dress codes reveals a similar judicial reluctance to countenance the notion that gender based appearance standards could contravene England's legislative framework on discrimination. Under s 1(1)(a) of the Sex Discrimination Act 1975, 104 discrimination is defined as 'less favourable treatment' on the grounds of 'sex', and this definition of discrimination is thus analogous to the proscription of 'less favourable' terms of employment and conditions of work under s 22(1)(b) of the Human Rights Act 1993. The leading English decision on the discriminatory effects of gender based dress codes was delivered by the Court of Appeal in Smith v Safeway, 105 and here the Court was presented with the opportunity to examine the validity of the seminal approach taken towards such policies by the Employment Appeals Tribunal in Schmidt v Austicks Bookshops. 106 Phillips LJ delivered the leading judgment in Safeway, with separate concurring judgments being delivered by Peter-Gibson LJ and Leggatt LJ

The approach taken by the Employment Appeals Tribunal in Schmidt, was strongly endorsed by their Lordships, and the reasoning employed by the Tribunal in that decision therefore needs to be examined first.

Schmidt v Austicks Bookshops

The Schmidt decision involved the dismissal of a female sales assistant for non-compliance with her employer's dress code that prohibited female employees from wearing trousers at work. Unsurprisingly, this restriction did not apply to male employees. Dismissing the complainant's claim, the Employment Appeals Tribunal urged that an expansive approach towards the establishment of 'less favourable treatment' should be taken. 107 Noting that it was not possible to identify a comparable dress restriction that applied to male employees, it was nevertheless held that through engaging in a comparative analysis of the restrictions encompassed within the contrasting dress codes it was 'possible to approach the matter a little more broadly'. 108 Following this approach, it was reasoned that because the wearing of T-shirts, and other 'out of the way' clothing was prohibited for male employees, the employer, 'as far as a comparison was possible ... treated both female and male staff alike, in that both sexes were restricted in the choice of clothing for wear whilst at work'. 109 It can thus be seen that a notable feature of the Employment Appeals Tribunal's judgment was its refusal to consider the form and extent of the restrictions imposed under the respective dress codes. Such an approach meant that the Employment Appeals Tribunal's preferred form of comparative analysis was pitched at an extremely high level of abstraction.

Smith v Safeway

Two decades after the delivery of the Schmidt decision, the Court of Appeal was presented with the opportunity to reconsider the broad method of comparison favoured by the Employment Appeals Tribunal. In Safeway, the male complainant had been dismissed from employment as a delicatessen assistant, having failed to comply with the employer's appearance standard prohibiting male employees from having hair that fell below collar length. As female assistants were permitted to have long hair (provided it was clipped back during working hours), the employer's restriction was driven by appearance concerns rather than those of health and safety. A discrimination claim under s (1)(1)(a) of the Sex Discrimination Act was duly lodged. Dismissing the complainant's sex discrimination claim, the Court of Appeal affirmed the Schmidt approach and clarified the principles to be derived from the decision. While the majority of the Employment Appeals Tribunal in the Safeway case had taken the somewhat innovative approach of attempting to distinguish Schmidt on the grounds that the hair restriction would impact the male claimant's appearance outside working hours, such an intrusion being deemed to be 'fundamentally unfair', 110 the Court of Appeal was sceptical of that reasoning. Rather, the Court stated that Schmidt's application extended beyond the simply ephemeral to include the more permanent of appearance characteristics. 111 The distinction that had been drawn by the Tribunal between differing forms of appearance was thus discredited. The broad comparative approach advocated in Schmidt was explicitly endorsed by the Court in Safeway, and Phillips LJ accepted that any comparison undertaken of differing dress standards should not be taken garment by garment but rather that a comparative 'package approach' should be taken of the policies as a whole. 112 The emphasis placed by the Employment Appeals Tribunal in Schmidt on the need to compare the restrictions imposed under each code, was similarly reflected in Phillips LJ's finding that as the employer had taken an 'even-handed' approach towards the dress policies by imposing restrictions on the hair-styles of both men and women the Sex Discrimination Act had not been contravened. 113 As to what exactly would constitute the specific hair restrictions for females was left unclear - although, apparently influenced by having viewed a 'variety of unconventional hairstyles' while 'walk[ing] through Camden Lock market on a Saturday afternoon', his Lordship did assert that female employees would hypothetically have been prevented from 'shaving part of [their] scalp' under the dress code. 114 The Court's reasoning thus reflected the same unwillingness witnessed in the Employment Appeals Tribunal decision in Schmidt to delve into a deeper examination of both the type and extent of restrictions imposed under the contrasting codes. Although the reasoning of the Court in Safeway has not been the subject of sustained judicial or academic examination, the intended scope of the 'even-handed' requirement stipulated by the Court was the subject of consideration by the Employment Appeals Tribunal in the later case of Department for Work and Pensions v Thompson. 115 In Thompson, the Employment Appeals Tribunal was presented with the proposition, advanced by the Manchester Employment Tribunal (MET) that the 'even-handed' approach prescribed by the Court of Appeal necessitated the imposition of an employment dress code requiring both sexes to wear clothing of a similar kind. Following this interpretation, the MET had upheld a sex discrimination claim brought by a male administrative assistant, who had been disciplined for non-compliance with his employer's gendered dress code requiring male employees to wear a collar and tie at work. As the female dress code simply required female employees to 'dress appropriately and to a similar standard', the Tribunal's restricted interpretation of the 'even-handed' formulation had resulted in its recognition of the sex discrimination claim, on the grounds that women had a greater choice of options for workplace attire as they were not required to wear clothing of a particular kind at work. 116 Overturning the MET's decision, the Employment Appeals Tribunal opined that the evenhandedness stipulation simply required the tribunal to investigate whether 'applying standards of conventional dress wear, the level of smartness which [the employer] required of all its staff could only be achieved for men by requiring them to wear a collar and tie'. 117 This broader interpretation, it could be commented, was more consistent with the higher level of comparative abstraction favoured by the Court of Appeal in Safeway.

Problems with the Safeway Approach

While the Court of Appeal's decision in Safeway remains the governing approach to be taken towards dress code discrimination claims under English law, fundamental difficulties arise with the legal analysis employed by the Court in the decision. First of all, the Court in Safeway overlooked the definitive 'but for' causal test established by the House of Lords in James v Eastleigh. 118 In a pivotal statement, Lord Goff in James had stipulated that the court must determine whether a complainant would 'have received the same treatment from the defendant but for his or her sex'. 119 Under a straightforward application of the 'but for' test, a claim of sex discrimination could readily have been founded in Safeway. It has been mistakenly assumed that the complainant's dismissal in Safeway amounted to 'less favourable treatment' that would not have occurred 'but for' his sex. 120 This argument, though, overlooks the fact that 'less favourable treatment' under the Sex Discrimination Act is a test that needs to be established before the examination of any employment detriment suffered, as a result of this treatment, is undertaken. 121 However, as the denial of a choice that holds value for the complainant does constitute 'less favourable treatment', under the Act, 122 the hair restriction imposed on the male employee in Safeway can easily be seen to fall within the scope of s (1)(1)(a). 123 Quite simply, the restriction imposed on the male's hair length would not have occurred 'but for' his sex.

Additionally, the Court of Appeal neglected to follow the approach taken by their Lordships in James with respect to the appropriate formulation of a comparator to whom a sex discrimination claimant must be compared when determining whether 'less favourable' treatment has occurred. In James, their Lordships emphasised that when the comparison to establish the occurrence of 'less favourable treatment' is undertaken, any gender based criterion imposed on the other sex should not be included within the scope of the comparison. 124 The Safeway approach cannot be reconciled with this imperative. Following the James analysis, the gender based restrictions imposed on the hair styles of female employees in Safeway should not have been considered in the Court's examination as to whether 'less favourable treatment' could be seen to have occurred. 125 The Court's failure to consider the implications of the James decision is inexplicable. The clear discrepancy that arises between the James and Safeway approaches was briefly alluded to by the Employment Appeals Tribunal in the Thompson decision. Observing that the causal 'but for' test could not be used to establish less favourable treatment in and of itself, the Employment Appeals Tribunal was careful to emphasise that the causal test was to be applied only after the occurrence of less favourable treatment had been established. 126 However, the Employment Appeals Tribunal declined to provide any comment on the general inconsistency that currently exists between the Safeway and James principles. Rather, it was acknowledged by the Employment Appeals Tribunal that 'it should be left to the Court of Appeal to decide what impact the James case had on the principles enunciated in the Safeway case'. 127 The law in England thus remains inconsistent. It is not only the legal analysis of the Safeway decision that gives cause for concern: the normative implications of the decision are equally worrying. A salient feature of the Court of Appeal's decision in Safeway was the Court's explicit endorsement of employment dress codes that embraced conventional appearance standards. Phillips LJ's affirmation that gendered dress codes enforcing a 'common principle' of 'conventionality' could not be seen to be discriminatory was unfortunate, 128 and the unquestioning judicial acceptance of the standard of conventionality seemingly contradicts the overriding goal of the Sex Discrimination Act, which is to combat societal adherence to traditional sex stereotypes. 129 The potential discrepancy between the employer imposition of gender based dress standards, and the normative aims of the Sex Discrimination Act had been judicially recognised before the Safeway decision. Early concerns were voiced by the Industrial Tribunal, in the unreported decision of Rewcastle v Safeway Plc, 130 that a 'policy which is designed to mirror 'conventional differences' between the sexes cannot be reconciled with the underlying rationale of the sex discrimination legislation which is to challenge traditional assumptions about sexes, not only as to their roles in society, and the tasks they perform, but also as to their appearance and dress'. 131 The reasoning is surely persuasive, and Phillips LJ's explicit rejection of the Industrial Tribunals' unease 132 revealed a seeming indifference to the fact that the conceptual underpinnings of the Sex Discrimination Act cannot be easily reconciled with the judicial acceptance of conventional appearance standards in the workplace. Upon close examination of the Safeway decision it also becomes apparent that the Court's conception of conventionality encompassed highly questionable ideals of gender normativity. Phillips LJ's contention that a purportedly conventional female dress code could include '18 inch hair, earrings and lipstick' 133 shows the underlying dangers of employing an inherently fluid standard that is so obviously prone to manipulation at the judiciary's whim. The concept of conventionality employed by Phillips LJ illustrates that the entirely subjective opinions of judges will permeate and shape the standard of conventionality which is to be treated as the benchmark of apparent fairness. The approach thus enables the courts to bypass any consideration of the harms that can be occasioned by the perpetuation of gendered stereotyping in the workplace, and it should be eschewed by the New Zealand courts.

VI. THE FAVOURED MODEL OF JUDICIAL COMPARISON

The Comparative Approach

The comparative model endorsed by the Court of Appeal in Safeway remains the guiding approach for dress code discrimination claims under English law, and it is clear the abstracted comparative approach favoured by the Court bears a striking similarity to the unequal burdens test applied by the Ninth Circuit in Jespersen. Both approaches allow the courts to avoid any sustained analysis of the particular dress or grooming requirement that is the subject of complaint, through focusing on a wider comparative analysis of the restrictions encompassed within the dress codes as a whole. The Safeway approach can thus be subjected to many of the same criticisms leveled above at its American counterpart. As the Safeway analysis requires the courts to compare the 'restrictions' imposed under contrasting dress codes, without providing any guidance as to what such restrictions may entail, the framework enables the courts to avoid any normative evaluation of the implicit harms occasioned by the imposition of gender based dress codes in the workplace. Although the Safeway form of comparison is analogous to the unequal burdens test, it must be emphasised it remains significantly less developed. And as no incisive analysis of the form of restrictions to be compared was required by the Court of Appeal, its preferred form of comparison was pitched at a significantly higher level of abstraction than that adopted by the Ninth Circuit in Jespersen. In short, exactly what may comprise such a restriction under the Court of Appeal's approach remains elusive, and a greater amount of judicial flexibility will thus be accorded to sex-differentiated dress codes in England. This is well illustrated by the fact that while the imposition of uniforms on only female employees has been regarded as unduly burdensome under the American jurisprudence, 134 a compulsory dress requirement that obliged only female nurses to wear a starch linen cap was upheld under the broad Schmidt approach. 135 A significant issue that surprisingly has not been raised in previous academic comment is that the concerns arising from the abstracted form of comparative analysis in both the American and English jurisdictions bring to the fore wider difficulties arising from the general conception of formal equality as a whole. The formal equality principle is predicated upon the Aristotelian ideal that like should be treated alike, and this normative aspiration underpins the concept of direct discrimination. 136 At first sight this ideal appears to be both morally sound and laudable. However, any hopes that this form of equality will achieve liberal aspirations are rendered illusory upon closer examination. Acute difficulties arise with the definition of what constitutes the intrinsically nebulous concept of 'likeness', as any attempt at definition of likeness is bound to result in tautology. 137 The lack of any substantive justification underpinning the normative foundations of the formal equality construct presents significant obstacles to the goal of ensuring that social justice is achieved under anti-discrimination legislation. As the conception of formal equality is predicated upon the objective of consistency in treatment, the normative aims of this construct simply amount to a principle of relativity containing no substantive underpinnings. 138 Thus, under the conception of formal equality there is no difference between treating individuals equally badly or equally well. 139 It can accordingly be argued that the sheer illogicality of the fact that an employer, under the Jespersen or Safeway approach, is granted the license to balance the restrictions associated with differing gender based dress codes is symptomatic of the wider difficulties that plague the general concept of formal equality as a whole.

The greatest difficulty associated with the formal equality construct is the need for a form of comparison to be undertaken between the complainant and another individual in similarly situated circumstances. 140 Such a task is necessitated by the construct's normative underpinnings, and the very notion that like must be treated alike inevitably requires the courts to select an appropriate comparator to whom the claimant can be compared. The freedom given to judges in the construction of a comparator gives cause for concern, as the judicial determination of an appropriate comparator inevitably requires a 'complex value judgment as to which of the myriad of differences between two individuals are relevant, and which are irrelevant'. 141 The fact that hidden moral and ideological underpinnings will inevitably influence the form of comparison to be undertaken is seen in the international jurisprudence surrounding gendered appearance standards. And, as discussed above, the judicial preference towards a broad form of comparative analysis enables the courts to avoid considering the possibility that an appearance requirement, incorporated within a wider dress policy, could contravene sex discrimination legislation. The courts' implicit acceptance that differing gender based appearance standards, imposed on employees of the other sex, are sufficiently alike to be included within the comparison required for the establishment of less favourable treatment 142 means the substantive justifications of such restrictions are never adequately explored. As there is no good reason why the courts should consider the net equality of a sex-differentiated dress code, instead of examining the particular dress requirement that is the subject of complaint, 143 the judicial tendency to favour the more abstracted form of analysis is revealing. The reluctance to narrow the comparison to be undertaken indicates a deep-seated aversion towards the recognition of such discrimination claims, and it thus becomes necessary to explore the jurisprudential foundations of this judicial unease and to examine whether the concerns have any validity.

VII. POLICY CONSIDERATIONS

Acceptance of Societal Norms

An underlying judicial assumption that the perpetuation of prevailing societal norms in the workplace is unobjectionable can be perceived in the American and English jurisprudence surrounding sex-differentiated dress discrimination claims, and a clear judicial reluctance to interfere with prevailing hegemonic ideologies can be discerned from the case law analysed above. The earliest stages of the American jurisprudence was noteworthy for its avowed acceptance of the purported innocuous nature of societal norms. For example, the assertion in the early case of Carroll v Federal Savings Bank 144 that a dress code with some justification 'in commonly accepted social norms' was acceptable, 145 illustrates well the prevailing judicial attitude. While such judicial sentiments were not as pronounced in the Jespersen decision, the majority's intuitive acceptance of the apparent innocuousness of dominant gendered norms was still evident; and Justice Schroeder's refusal to contemplate that a compulsory make-up requirement could constitute a form of 'impermissible sex stereotyping' provided an illuminating illustration of the majority's unquestioning acceptance of prevailing gendered appearance standards. Judicial receptiveness towards the permissibility of gendered norms remains even more explicit under English law. As seen above, the conventionality threshold established by the Court of Appeal in Safeway ensures that dress codes encompassing dominant gender norms will be viewed as unobjectionable. Unfortunately, any judicial support of the viability of gender norms serves to effectively reinforce their validity, and societal progression and development is thereby inhibited. 146 Although it has been argued that the task of challenging societal norms should not fall to the judiciary, 147 such assertions fail to recognise that a quintessential aim of all anti-discrimination legislation, which the judiciary is required to interpret and apply, is to challenge traditional assumptions and prejudices. A broad and purposive construction of such legislation would therefore require a deeper questioning of the validity of dominant gender norms, rather than an unquestioning acceptance of their permissibility.

Inability to Comprehend Gender Fluidity

A deep-seated judicial unwillingness to disrupt the dichotomous boundaries of gender normativity can also be discerned from an examination of the international jurisprudence discussed above. Although the concern voiced in an earlier federal decision that abolition of gender based dress codes would result in male employees 'minc[ing] around in high heels', 148 was not so colourfully expressed by the majority in Jespersen, lingering concerns about gender transgressions in the workplace were still evident in the judgment. For instance, the reasoning that the sex-differentiated grooming standards were necessary to create a 'professional' look for the bartenders, 149 illustrated the majority's inability to embrace the existence of gender fluidity in the workplace. In Safeway the Court of Appeal was significantly less restrained in communicating its unease surrounding the occurrence of workplace cross-dressing. Phillip LJ's highly questionable assertion that the necessity of gender based dress codes was obvious, in view of the fact that men could otherwise be subjected to the requirement of having to wear '18 inch hair, make-up, and high heels' 150 to work, was certainly revealing. Notwithstanding the irrationality of the assumption that recognition of a sex discrimination claim would inevitably result in compulsory cross-dressing in the workplace, Phillip LJ's analysis unwittingly disclosed a deeply ingrained perception that the practice of cross-dressing was simply unfathomable. In light of the progressive liberality that has begun to pervade international jurisprudence surrounding transgender rights in employment, the judicial disdain accorded to gendered presentations that destabilise hegemonic gender ideologies is rapidly losing force. As discussed above, some Federal courts in the United States are beginning to engage in a broad construction of Title VII in order to provide protection from discrimination to transgendered employees. Moreover, the European Court of Justice's recognition that protection of discrimination on the grounds of gender re-assignment should fall within the scope of the Equal Treatment Directive's prohibition of sex discrimination, 151 led to the enactment of the Sex Discrimination (Gender Reassignment Regulations) 1999 in the United Kingdom. 152 As the protection from discrimination provided by the legislative amendment extends to the pre-surgical period of transition, the concerns over men wearing high heels voiced in Safeway appears all the more anomalous. 153 A fundamental chasm currently exists between the restrictive dress code jurisprudence, and the progressive attitude that has begun to be taken towards transgender rights in the international arena.

Employer's Right to Control Business Image

At first glance, the current anomaly that exists between the judicial recognition of transgender rights in employment and the contrasting rejection of gendered appearance standard discrimination claims would appear entirely incomprehensible. However, upon a deeper examination of the current jurisprudence a clearer picture begins to emerge. In the United States, evidence of a significant judicial deference towards an employer's prerogative to control its business image surfaces from an exploration of the case-law, and the purported need for an employer to be free to create a particular business image, through the imposition of gender based dress codes, has long pervaded American judicial thinking. Recourse to such a policy concern was well illustrated by comments made in the early decision of Fagan v National Cash Register, 154 to the effect that 'no facet of business life is more important than a company's place in public estimation'. 155 As the unfortunate perception that the 'spectre of men in dresses' may be 'commerce threatening' 156 still lingers amongst the American judiciary, this could explain the underlying judicial reluctance to embrace any approach that accepts the possibility of fluidity in gender presentation occurring in the workplace. The pivotal role that an employer's business image plays in the imposition of gender differentiated dress policies was also demonstrated in the Jespersen decision itself. The overt aim of the 'Personal Best' policy was to maintain a 'brand standard of excellence,' and the majority's emphasis that the policy was imposed within 'the context of the entertainment industry' 157 illustrated belief in the importance of an employer's brand image. The clear judicial acquiescence towards the protection of the employer's business judgment is surprising. Under a broad and purposive construction of human rights legislation, the employee's right to remain free from discrimination would surely need to be accorded paramountcy. Additionally, judicial consideration of the effect that the appearance of employees may have on profit margins has been explicitly excluded from the BFOQ justification. The policy considerations concerning the employer's right to control its business image are correspondingly quite weak. A similar judicial yielding to the purported need to protect an employer's managerial discretion can also be discerned from an examination of the English jurisprudence. For instance, the Employment Appeals Tribunal in Schmidt placed reliance on the now discredited Court of Appeal judgment of Peake v Automotive Products Ltd 158 to assert that because an employer was entitled to 'a large measure of discretion in the control of his establishment', judicial interference with the imposition of gender based dress codes was ill-advised. 159 However, as this element of the Peake judgment had been rejected by the time of the Safeway decision, 160 the absence of any attempts by the Court of Appeal to scrutinise the Employment Appeals Tribunal's endorsement of Peake is telling. 161 In fact, the purported right for an employer to control the image of its business was explicitly recognised by the Court. Holding that the employer in question was at liberty to impose differing hair requirements for its staff, on the supposedly 'sound commercial' grounds that such appearance standards were what the customers of the business required, 162 the Court's rejection of the discrimination claim appeared to be driven by the perceived imperatives of customer preference. Such policy concerns are unsound: there is no justification provided for direct discrimination of this kind under the Sex Discrimination Act, 163 and the court's deference to the requirements of customer preference was in flagrant disregard of the anti-discrimination statute. 164 Moreover, it is clear that in ascertaining whether or not direct discrimination has occurred, the employer's underlying motives of maintaining commercial viability should be of no relevance. 165 The Safeway reasoning is, in brief, flawed.

Floodgate Concerns

A profound objection to the potential judicial recognition of the illegality of a gender based dress standard is based on the fear that any judicial proscription will inevitably open the floodgates to an unadulterated flow of discrimination claims brought by employees dissatisfied with their workplace dress requirements. 166 Such concerns were evident in Judge Schroeder's contention in Jespersen that judicial recognition of the claimant's sex stereotyping claim would come precariously close to holding every grooming apparel or appearance requirement that an individual finds personally offensive to be a successful sex discrimination claim. 167 These concerns may at first sight have some superficial attraction. However, assertions that recognition of the illegality of gender based dress requirements would inevitably result in the downfall of all employment dress codes are unnecessarily alarmist. First of all, it must be noted that judicial recognition of a sex discrimination claim would not prevent the imposition of standards of cleanliness and tidiness in the workplace, and a gender-neutral prohibition of casual attire, such as T-shirts, jeans or trainers, would not infringe any sex discrimination legislation. 168 Secondly, and on an entirely pragmatic note, it is clear that compliance with dominant gender norms is unproblematic for many individuals. The eradication of compulsory gender based dress requirements is therefore most unlikely to alter greatly the appearance of an employer's workforce, as the very nature of dominant norms entails that the majority will seek to comply with them. The policy concerns over the prospect of a flood of discrimination claims are groundless.

VIII. NEW ZEALAND'S FUTURE JUDICIAL PATHWAY

The Approaches Open to the New Zealand Courts

It can be seen from the above analysis that the policy objections raised against judicial recognition of the discriminatory effects of gender based dress concerns are ill-conceived, and should not impede the New Zealand courts from recognising the illegality of gender based appearance standards under our human rights legislation. On the contrary, considerations of policy should in fact propel future judicial proscription of the use of such standards in the workplace. The ever-increasing recognition of the need to ensure transgendered individuals have access to fundamental human rights, and the desirability of combating oppressive gender ideologies in the workforce, lend force to the argument that such gender based dress codes should be judicially declared to be prohibited under New Zealand's human rights legislation. However, while there is clear normative validity in the judicial recognition of dress code discrimination claims, we are drawn to question how such a claim could feasibly succeed under New Zealand's current legislative framework. It is first necessary to observe that the Employment Court's obiter contention in Williams that a 'mutual [facial make-up] contractual requirement' 169 could not contravene New Zealand's human rights legislation was misguided. A fundamental tenet of anti-discrimination law is that an employee's consent to a discriminatory term or condition of employment does not serve to dilute its discriminatory effect. 170 The Court's emphasis of the purported mutuality of the appearance requirement was therefore doubtful, and should not unduly influence thinking on this issue. While any substantive examination of unjustified disadvantage grievances falls outside the scope of this article, it must also be noted that under New Zealand's legislative framework the purported imposition of gender based dress standards, pursuant to the introduction of a new employment policy, could amount to a unilateral variation of an employee's terms of employment 171 and thus provide grounds for an alternative disadvantage grievance to be brought under the Employment Relations Act. 172 Such an approach would side-step the requirement for an employee to prove discrimination, and could be an attractive possibility for the claimant. However, the fundamental question for this article is whether, under New Zealand legislation, a gender based appearance standard could constitute unlawful discrimination 'by reason of' sex under s 22 of the Human Rights Act 1993 (or s 104 of the Employment Relations Act 2000). The essential question is, therefore, whether the courts could find that a gendered dress or grooming requirement equates to a 'less favourable term of employment' than that afforded to employees in 'the same or substantially similar circumstances' as the complainant. 173

Some guidance can be gleaned from the overseas jurisprudence discussed above. First of all, the issue could be resolved by following the authoritative House of Lords' approach in James, a judgment so assiduously avoided by the Court of Appeal in Safeway. As the 'by reason of' causal test, provided by the Human Rights Act, has been judicially interpreted in New Zealand to accord with the House of Lords' 'but for' causal test, 174 it can readily be argued that a sex-differentiated appearance requirement (which denies an employee a specific choice that is open to the other sex) 175 constitutes a 'less favourable term of employment' that has occurred 'by reason of' the employee's sex. Under this approach a grooming requirement that obliges female employees to wear make-up to work, when men are not so obliged, would contravene the legislation. Similarly, a restriction placed on the ability of men to wear makeup, or to wear dresses or skirts in the workplace, would contravene s 22 of the Human Rights Act. While such an approach is attractive for its simplicity, it must be noted that it is not explicitly premised upon the normative harms of such requirements. In the alternative, guidance could be gleaned from the Ninth Circuit's acceptance in Jespersen that any term of employment that requires an employee to conform to an impermissible sex stereotype associated with his or her sex amounts to a 'less favourable' term of employment by reason of 'sex'. Such an approach does have stronger normative justifications, as it is explicitly premised upon the undesirability of the perpetuation of gendered norms in the workplace. Obviously, as argued above, the more progressive dissent of Judge Pregerson in Jespersen should be preferred. And, significantly, the principle of sex stereotyping has already been recognised in the New Zealand judicial system. In obiter discussion in N v F 176 the Equal Opportunities Tribunal argued that discriminatory treatment driven by employer reliance on the notion that females should not have an 'assertive nature,' when this requirement was not applied to men, could have breached New Zealand's human rights legislation. 177 The use of the sex-stereotyping principle to proscribe gendered dress requirements could therefore be readily adopted by the New Zealand courts. If the New Zealand courts were to be guided by the dissent of Judge Pregerson in Jespersen, the issue does arise as to how the 'impermissible sex stereotyping' prohibited by the judgment, could be identified. Certainly, the need for the court under Jespersen to make the differentiation between permissible and impermissible gendered ideologies will pose some difficulties. Nevertheless, many scholars claim that a judicial examination of the sociological implications of a gendered appearance standard could be undertaken to investigate its normative underpinnings. 178 Under this approach, any compulsory requirements for females to adhere to orthodox standards of grooming or dress would be seen as invidious, and thus proscribed. However, such an approach would initially appear to provide little protection to male employees with a female gender identity, as male dress norms serve to communicate messages of power and dominance 179 and arguably might not be seen as intrinsically invidious. On the other hand, the origins of the derision accorded to males who seek to wear female attire derives from the deeply held societal beliefs in the inferiority of women. 180 The argument can accordingly be made that any dress requirement that prohibits men from adopting a form of appearance open to women is inherently objectionable, as it reinforces the subordinate nature of women in society. This inquiry into the validity of gendered stereotyping would not be required if discrimination on the grounds of gender identity was explicitly proscribed by the statute. While the Crown Law Office has asserted 'it is unnecessary to amend the Human Rights Act 1993 in order to ensure protection from discrimination on grounds of gender identity' 181 this pronouncement is somewhat optimistic. The Crown Law opinion appeared to be simply based on the fact that Canadian and United Kingdom jurisprudence has established that transsexual individuals who have undergone gender reassignment procedures are to be protected from discrimination on the grounds of sex. 182 While these decisions may well be of some assistance to the New Zealand courts, it is necessary to emphasise that none are binding. Moreover, it must be observed that the House of Lords decision in Chief Constable of Yorkshire v A, 183 that was relied upon in the Crown Law opinion, only widened the scope of the term 'sex' to include gender-reassignment within its parameters. 184 This is quite distinct from providing protection from discrimination on the wider grounds of gender identity 185 and it is surprising that Crown Law reached its conclusion so confidently. As recently recognised by the Human Rights Commission, there still remains a pressing need for a statutory amendment to ensure that discrimination on the grounds of gender identity is explicitly proscribed by the statute, 186 and it is by no means clear that an individual's right to the expression of gender identity is currently protected. Thus, the discriminatory nature of dress codes may still have to be recognised pursuant to the proposed approaches analysed above. In order for the courts to focus on the discriminatory nature of a specific appearance standard, the James approach regarding the formulation of an appropriate comparator in sex discrimination claims will need to be followed. This would ensure that gender based dress requirements imposed on employees of the other sex are excluded from the determination of what constitutes a 'substantially similar circumstance' under New Zealand's legislation, and such an approach clearly accords with the broad and purposive construction of human rights legislation that is required under New Zealand law. 187 It must, however, be noted that the James analysis cannot be easily reconciled with the Court of Appeal's recent decision in Air New Zealand v McAlister. 188 Here it was held by the Court that an age based restriction on a pilot's ability to fly international flight paths could be purportedly compared to a hypothetical operational restriction imposed on younger pilots in its determination of what amounted to a 'same or substantially similar circumstance' under s 104(1)(a). 189 The discriminatory impetus behind the age restriction therefore appeared to hold no relevance for the Court 190 and the implications of the decision are unfortunate. Following McAlister, a gender based dress restriction imposed upon the other sex could well be included within the scope of the comparison needed to determine if unlawful discrimination has occurred. Regrettably, it is apparent that under McAlister the current abstracted method of comparative analysis prevailing in international legal analysis would clearly be open for the New Zealand judiciary to adopt.

The Section 27 Exception

If, however, the discriminatory nature of gendered appearance standards was to be recognised by the New Zealand courts, the issue will arise as to whether an employer is ever able to impose a gendered based dress requirement on its employees. Under s 27(1) of the Human Rights Act 'different treatment' based on sex is permissible where, for reasons of 'authenticity,' being of a particular sex is a 'genuine occupational qualification'. While no legislative or judicial guidance has been given as to the meaning of the two critical terms within the section, it is apparent that the term 'authenticity' greatly reduces the potential scope of the provision. The term arguably refers to concepts of genuineness or validity, 191 and it has been argued that this will inform the nature of what could be considered to be a 'genuine occupational qualification'. 192 As noted above, the New Zealand courts are likely to follow the American approach so as to exclude considerations of customer preference under this provision. 193 The exception is likely to be construed very narrowly. The term 'different treatment' under s 27 is also left undefined. It could, however, be assumed that a 'less favourable term of employment' would fall within the scope of this phrase. The question thus arises as to the circumstances under which a gender based dress requirement constituting 'different treatment' would be acceptable because, for reasons of 'authenticity', being of a particular sex is a 'general occupational qualification'. It is clear that in industries premised upon physical attributes an individual's sex is likely to amount to an authentic general occupational qualification. 194 Thus, in the modelling, sex, and dramatic performance industries, an employer could require a female to comply with appearance requirements that reinforce dominant gender norms. Nonetheless, the issue arises as to whether the contention of the Employment Court in Williams, that a compulsory make-up requirement could be viably imposed upon a female cosmetic sales assistant, would survive the rigorous s 27 test. Under the Wilson framework, it is clear that an employer would be unable to argue that customers prefer to buy cosmetics from female sales assistants. Moreover, as the 'essence' of a retail sales job is to assist customers with inquiries, and to operate a cash register, it is apparent that the job could just as easily be performed by a male employee. Accordingly, the Employment Court's assertion does not appear to accord with the spirit and wording of the s 27 exception.

IX. THE WAY FORWARD

The above examination shows that the international jurisprudence surrounding the imposition of gender based standards in the workplace lacks both legal and normative soundness, and that the New Zealand courts would be therefore be ill-advised to seek guidance from it. Clearly, considerations of policy should provide the underlying impetus for the judicial proscription of gendered dress codes in New Zealand, and the possible approaches proposed in this article provide a workable framework by which the illegality of such dress policies could be recognised under New Zealand's current legislation.

However, in light of the New Zealand Court of Appeal's questionable approach towards the comparator issue in McAlister, there is a real danger that that the broad method of comparative analysis evident in both the Jespersen and Safeway decisions could be adopted by the New Zealand courts. Accordingly, as recently acknowledged by the Human Rights Commission, the most appropriate means by which an individual's right to express his or her gender identity can be protected is through legislative intervention. The international dress code jurisprudence demonstrates that such a right will often not be recognised under any general legislative proscriptions on sex discrimination. It is therefore to be hoped that Parliament will see fit to follow the Human Rights Commission's recommendation, and amend the Human Rights Act to ensure the statute specifically provides explicit protection from discrimination on the grounds of gender identity. 195 In the light of the overseas jurisprudence, such a legislative amendment appears necessary and should hopefully ensure that gendered based dress codes are rendered curious artifacts from the past.

* LLB(Hons), BA. Natasha is currently employed as a Judge's Clerk at the Court of Appeal. This paper was awarded the Canterbury Law Review prize for the best undergraduate Honours paper completed in 2008. The law discussed in this article is as at 31 January 2009.

• Seaman, 'The Peahen's Tale, Or Dressing Our Parts at Work' (2007) 14 Duke Journal of Gender Law and Policy 423 , 424.
• West and Zimmerman, 'Doing Gender' in Lorber and Farrell (eds), The Social Construction of Gender (1991) 14; Oakley, Sex, Gender and Society (1972) 66.
• Alsop, Fitzsimons and Lennon, Theorizing Gender (2002) 116.
• For discussion see: Ramazanoglu, 'Heterosexuality, Biology and Why Men Stay on Top' in Maynard and Purvis, (Hetero)Sexual Politics (1995) 30; Lindesmith, Strauss, and Denzin, Social Psychology (1999) 224.
• Butler, Gender Trouble: Feminism and the Subversion of Identity (2nd ed 1999) 43. For general discussion see: Lloyd, 'Sexual Politics, Performativity, Parody' in Carver and Mottier (eds), Politics of Sexuality: Identity, Gender, Citizenship (1998) 125; Jagger, Judith Butler: Sexual Politics, Social Change and the Power of the Performative (2008) 5.
• Butler, ibid 179.
• West and Zimmerman, above n 2, 15.
• Flynn, 'Gender Equality Laws and Employers' Dress Codes' (1995) 24 Industrial Law Journal 255 , 256.
• See generally: Aggarwal, Sex Discrimination: Employment Law and Practices (1994) 41-45; Fredman, Women and The Law (1987) 1-37; Gregory, Sex Race and The Law (1987) 1-9; Pannick, Sex Discrimination Law (1985) 1-24.
• Richardson, Theorizing Heterosexuality: Telling it Straight (1996) 20.
• Alsop et al, above n 3, 116.
• Bordo, Unbearable Weight, Feminism, Western Culture and the Body (1993) 16; Bartky, 'Foucault, Femininity, and the Modernisation of Patriarchal Power' in Diamond, and Quinby (eds), Feminism and Foucault: Reflections on Resistance (1988) 67; Morgan, 'Women and the Knife: Cosmetic Surgery and the Colonization of Women's Bodies' in Weitz (ed), The Politics of Women's Bodies: Sexuality, Appearance and Behavior (2003) 168-173; Wolf, The Beauty Myth (1991) 59.
• Devor, cited in Ponte and Gillan, 'Gender Performance over Job Performance: Body Art Work Rules and the Continuing Subordination of the Feminine' (2007) 14 Duke Journal of Gender Law and Policy 319 , 359; Lurie, The Language of Clothes (1981) 215-29.
• Avery, 'The Great American Makeover: The Sexing Up and Dumbing Down of Women's Work' (2007) University of San Francisco Law Review 299 , 301.
• American Psychological Association, Report of the APA Task Force on The Sexualisation of

Girls (2007) 22.

• Cox and Glick, 'Resume Evaluations and Cosmetic Use: When More is Not Better' (1986) 14 Sex Roles 51, 57; Yurako, 'Sameness, Subordination and Perfectionism: Towards a More Complete Theory of Employment Discrimination Law' (2006) 43 San Diego Law Review 857 , 880.
• Oxford English Dictionary, < www.oed.com >. See generally: Hines, Transforming Gender: Transgender Practices of Identity, Intimacy and Care (2007); Stryker 'De-Subjugated Knowledge: An Introduction to Transgender Studies' in Stryker and Whittle (eds), The Transgender Studies Reader (2006); Halberstam, In A Queer Time and Place: Transgender Bodies, Subcultural Lives (2005).
• Human Rights Commission, To Be Who I Am: Report of the Inquiry into Discrimination Experienced by Transgender People (press release, 18 January 2008) [8.1].
• McCarthy, 'Trans Employees and Personal Appearance Standards under Title VII' (2008) 50 Arizona Law Review 939 , 924; Chow, 'Smith v City of Salem: Transgendered Jurisprudence and an Expanded Meaning of Sex Discrimination under Title VII' (2005) 28 Harvard Journal of Law and Gender 207 , 215.
• Sometimes hereafter referred to as 'the Act'.
• Long Title to the Act. See generally: Director of Human Rights Proceedings v Cropp (HC,

Auckland AP7-SW03, 12 May 2004, Baragwanath and Harrison JJ) 17.

• See, for example, UN Convention on Discrimination in Respect of Employment and Opportunity 1958, Art 2; Universal Declaration of Human Rights 1948, Art 23; International Covenant on Economic, Social and Cultural Rights 1976, Art 7.
• (1) Where an applicant for employment or an employee is qualified for work of any description, it shall be unlawful for an employer, or any person acting or purporting to act on behalf of an employer,—

(b) To offer or afford the applicant or the employee less favourable terms of employment, conditions of work, ... than are made available to applicants or employees of the same or substantially similar capabilities employed in the same or substantially similar circumstances on work of that description;

by reason of any of the prohibited grounds of discrimination.

• The relevant provision of s 104(1) provides that an employee is discriminated against where the employer by reason directly or indirectly of any of the prohibited grounds of discrimination specified in s 105:

(a) refuses or omits to offer or afford to that employee the same terms of employment, conditions of work ...as are made available for other employees of the same or substantially similar qualifications, experience, or skills employed in the same or substantially similar circumstances.

Note, while this requirement of the 'same terms of employment' appears less stringent than the 'less favourable' standard provided by s 22 of the Human Rights Act the Equal Opportunities Tribunal did note that the comparable term under s 15(1)(b) Human Rights Commission Act 1977 bore similarity to the standard of less favourable treatment: Proceedings Commissioner v Air New Zealand Ltd [1987] NZEOT 1 ; [1998] 7 NZAR 462 , 470.

• Employment Relations Act 2000, s 103(1)(c). Note, any grievance that amounts to a discrimination, or raises a strong presumption of discrimination, might also be brought as a case of unjustified dismissal or unjustified disadvantage under ss 103(1)(a) or (b), which would not require the claimant to prove that discrimination has occurred. See Mazengarb Employment Law (hereafter Mazengarb) [104.3].
• This is repeated as a prohibited ground under the Employment Relations Act 2000, s 105(1)(a).
• See: Brookers Human Rights Law [21.10 (9)]; Mazengarb [4021.10].
• Employment Court, Auckland AC 72/06, 12 December 2006, Judge Perkins. Hereafter, Williams.
• As noted in Williams v Kimberleys Fashions Limited (Employment Relations Authority AA 300/05, 8 August 2005), 4.
• Williams, above n 28, [30].
• 42 U.S.C 2000e(2) (a)(1).
• As outlined in International Bhd of Teamsters v United States, [1977] USSC 90 ; 431 U.S 324 , 335 (1997) (Supreme Court). Direct discrimination is labeled 'disparate treatment' in the United States. See generally: Gregory, Women and Workplace Domination: Overcoming Burdens to Gender Equality (2003) 2.
• Note, as both the Human Rights Act 1993 and Employment Relations Act 2000 define unlawful discrimination under s 22 and s 104, respectively, conceptual debates surrounding the definition of discrimination, such as those outlined in CPAG v Attorney General (Human Rights Tribunal, 16.2.08, Decision 31/08) [116]-[119], do not arise in the same way. This was noted in Air New Zealand v McAlister [2008] NZCA 264 , [45].
• A discrimination claim on the grounds of disparate impact can be brought when an employer's practice is 'facially neutral ... but ... in fact fall[s] more harshly on one group than another': International Bhd of Teamsters v United States, [1977] USSC 90 ; 431 U.S 324 , 335. Note, this is similar to the indirect discrimination prohibited by the Human Rights Act 1993, s 25 and the Employment Relations Act 2000, s 104. See generally: Brookers Human Rights Law [65.01]-[65.10]; Mazengarb [4065.3]-[4065.9.4] and [1045]; Mize, 'Indirect Discrimination Reconsidered' [2007] New Zealand Law Review 27.
• See generally: Case, 'Disaggregating Gender from Sex and Sexual Orientation: The Effeminate Man in the Law and Feminist Jurisprudence' (1995) 105 Yale Law Journal 1 , 5; McCarthy, n19, 952. This argument is likely to be applied in the New Zealand context.
• [1989] USSC 85 ; 109 S Ct 1775 ; 490 U.S. 228 , (1989). Hereafter referred to as 'Price Waterhouse'.
• See generally: Goodsell, 'Toward Real Workplace Equality: NonSubordination and Title VII Sex-Stereotyping Jurisprudence' (2008) 23 Wisconsin Journal of Law, Gender & Society 41 , 41; Franke, 'The Disaggregation of Sex from Gender' (1995) 144 University of Pennsylvania Law Review 1 , 95.
• Price Waterhouse, above n 40, 1785.
• [2006] USCA9 195 ; 444 F.3d 1104 (9th Cir. 2006).
• See, for example, Lewis v Heartland Inns of America (Iowa District Court, No 4:07-CV-00287, Nov 13, 2008).
• It must be noted that under New Zealand law, for employment policies to be incorporated as terms of employment contracts, the policies, and their notification, must be 'fair and reasonable': Carter Holt Harvey v Pawson [1998] NZEmpC 38 ; [1998] 2 ERNZ 1 , per Judge Colgan, and an employer's attempt to change employment policies that change existing terms and conditions of employment requires the consent of employees: NZALPA v Air New Zealand Ltd [1991] NZEmpC 62 ; [1992] 1 ERNZ 880. The purported unilateral variation of terms without the employee's consent could give thus give rise to an unjustifiable disadvantage grievance under s 103(1)(b) of the ERA. See generally: Brookers Employment Law [103.27(2)(b)-(4)]; Mazengarb [103.69] and following.
• Above n 46, 1107.
• It is recognised that the test has added a gloss to the meaning of less favourable treatment. See generally: Shin, 'Vive La Difference? A Critical Analysis of the Justification of Sex-Dependent Workplace Restrictions on Dress and Grooming' (2007) 14 Duke Journal of Gender Law and Policy 491 , 506.
• See, for example, Baker v California Land Title Co, [1974] USCA9 557 ; 507 F.2d 895 (9th Cir.1975); Earwood v Continental Southeastern Lines Inc, 594 F.2d 1349 , (4th Cir. 1976); Knott v Mo Pac RR Co, [1976] USCA8 53 ; 527 F.2d 1249 (8th Cir. 1975); Willingham v Macon TelPubl’g Co, 507 F.2d 1054 (5th Cir.1975); See generally: Williamson, 'Moving Past Hippies and Harassment: A Historical Approach to Sex, Appearance and the Workplace' (2006) Duke Law Journal 681 , 692.
• Levi, 'Misapplying Equality Theories: Dress Codes at Work' (2008) 19 Yale Journal of Law and Feminism 353 , 353; Conway, 'Leaving Employers in the Dark: What Constitutes A Lawful Appearance Standard after Jespersen v Harrahs Operating Co?' (2007) George Mason University Civil Rights Journal Association 107, 115.
• Carroll v Talman Fed Sav & Loans Ass'n of Chicago, [1979] USCA7 555 ; 604 F.2d 1028 (7th Cir. 1979); O'Donnell v Burlington Coat Factory Warehouse Inc, 929 F. Supp. 263 (S.D. Ohio 1987).
• EEOC v Sage Realty Corp, 507 F.Supp.599 (S.D.N.Y.1981).
• Gerdom v Continental Airlines Inc, [1982] USCA9 1965 ; 692 F.2d 602 (9th Cir. 1982).
• Levi, above n 53, 363-364.
• [2000] USCA9 335 ; 216 F.3d 845 (9th Cir. 2000).
• Ibid 854-55.
• Jespersen, above n 46, 1109.
• Ibid 1117. Note, it has been established that women spend approximately five and a half hours a week on grooming. 'How We Spend Time' Time Magazine ( 30 October 2006) 53.
• Rhode, 'The Subtle Side of Sexism' (2007) 16 Columbia Journal of Gender Law and Policy 613, 630; Wolf, above n 12, 254.
• Jespersen, above n 46, 1116.
• Jespersen v Harrah's Operating Co, 280 F. Supp.2d, 1190.
• See Lifson-Leu, 'Enforcing Femininity: How Jespersen v Harrah's Operating Co. leaves women in Typically Female Jobs Vulnerable to Workplace Sex Discrimination' (2008) 42 University of San Francisco School of Law 849, 876.
• In O'Donnell, above n 54, it was suggested it was demeaning for one sex to wear a uniform when members of the other sex holding the same position were allowed to wear professional business attire.
• For comment see: Friedman, 'Gender Non-Conformity and the Unfulfilled Promise of Price Waterhouse v Hopkins' (2007) 14 Duke Journal of Gender Law and Policy 205 , 210; Steinle, Appearance and Grooming Standards as Sex Discrimination in the Workplace' (2007) 56 Catholic University Law Review 261 ; 286; Kelly, 'Making-Up Conditions of Employment: The Unequal Burdens Test As A Flawed Mode of Analysis in Jespersen v Harrah's Operating Co' (2006) Golden Gate University Law Review 45 , 60; Avery, above n 14, 316.
• As argued by Judge Kozinski, Jespersen, above n 46, 1118. See also Kelly, ibid, 60; Miller, 'Lost in the Balance: A Critique of the Ninth Circuits Unequal Burdens Approach to Evaluating Sex-Differentiated Grooming Standards Under Title VII' (2006) North Carolina Law Review 1356 , 1365.
• Williamson, above n 52, 707.
• Raskin, 'Sex Based Discrimination in the American Workforce: Title VII and the Prohibition Against Gender Stereotyping' (2006) 17 Hastings Women's Law Journal 247 , 257.
• See criticism in Pizer, 'Facial Discrimination: Darlene Jespersen's Fight Against the Barbie-Fixation of Bartenders' (2007) 14 Duke Journal of Gender Law and Policy 285 , 303; Seaman, 'The Peahen's Tale, Or Dressing Our Parts at Work' (2007) 14 Duke Journal of Gender Law and Policy 423 , 433.
• It is important to note that 'less favourable treatment' under Title VII can be established when the complainant is compared to an employee of the other sex who is 'similarly situated.' See, for example, Marshall v American Hospital Association, [1998] USCA7 890 ; 157 F.3d 520 (7th Cir. 1995). This bears similarity to the comparison that must be made between the complainant and an employee in the 'same or substantially similar circumstances' mandated under s 22(1)(b) Human Rights Act and s 104(1)(a) of the Employment Relations Act.
• Significantly, the possibility that discrimination on the basis of stereotypes associated with an individual's sex could amount to sex discrimination has been recognised under New Zealand's legislation. See N v F (EOT, Decision NO 2/91, EOT 15/89, 14 August 1991, H Sargisson, Chairperson, CWP Pascoe, and LM Wilson, members). See also: Proceedings Commissioner v Armourguard Security (1992) EOC 92-412 ; Proceedings Commissioner v Boakes (EOT Decision 1/94, EOT 14/92, 13 April 1994).
• See Friedman, above n 60, 205. Also see, Case, above n 39, 61; McGinley 'Exclusive Hiring Arrangements and Sexy Dress Codes' (2007) 14 Duke Journal of Gender Law and Policy 257 , 261.
• Jespersen, above n 46, 1112.
• Seaman, above n 1, 436.
• As noted by Judge Pregerson, Jespersen, above n 46, 1115.
• As noted in Steinle, above n 72, 294.
• Cruz, 'Making Up Women' (2004) 5 Nevada Law Journal 240 , 257; Miller, above n 73, 1370.
• Ulane v Eastern Airlines Inc, [1984] USCA7 784 ; 742 F.2d 1081 , 1085 (7th Cir. 1985). See also: Holloway v Arthur Anderson & Co, [1977] USCA9 1320 ; 566 F.2d 659 (9th Cir. 1977); Sommers v Budget Marketing Inc, [1982] USCA8 15 ; 667 F.2d 748 (8th Cir. 1982).
• [2004] USCA6 278 ; 378 F.3d 566 (6th Cir. 2004).
• Ibid 573. See also: Barnes v City of Cincinnati, [2005] USCA6 138 ; 401 F.3d 729 (6th Cir. 2005). This principle has been also been applied in sexual harassment cases. See: Rene v MGM Grand Hotel Inc, [2002] USCA9 736 ; 305 F.3d 1061 , 1068-69 (9th Cir. 2002); Nichols v Azteca Restaurant Enterprises Inc, 256 F.3d 854 , 874 (9th Cir. 2001).
• Section 27 of the Human Rights Act provides an exception for direct discrimination where, for reasons of authenticity, being of a particular sex is a general occupational qualification. This is reflected in the Employment Relations Act 2000, s 106(1)(d).
• Brookers Employment Law [27.04 (3)], [27.04(7)].
• 42 U.S.C. 2000(e)-(2)(e)(1).
• Dothard v Rawlinson, [1977] USSC 143 ; 433 U.S 321 , 334 (1977).
• See for example, Diaz v Pan American World Airways Inc, 442 F.2d 385 (5th Cir. 1971); Fernandez v Wynn Oil, [1981] USCA9 1232 ; 653 F.2d 1273 , 1276 (9th Cir. 1981).
• 517 F.Supp 292 (N.D. Tex. 1981).
• For example, Health and Safety: Bhatia v Chevron USA Inc, 745 F 2.d 1382, (9th Cir. 1984); Privacy in Healthcare: Backus v Baptist Medical Centre, 510 F.Supp 1191 , 1192-93 (E.D Ark
• Appeal No 773 Case No Cfs. 22618-70.
• Cited in Wilson, above n 97, 301. For criticism see: Yurako, 'Private Nurses, Playboy Bunnies and Explaining Permissible Sex Discrimination' (2004) 92 California Law Review 147 , 172-179.
• The job description is provided in Raskin, above n 75, 262.
• Indirect discrimination is also prohibited under the Sex Discrimination Act pursuant to s (1)(1)(b), but, as discussed in the text, challenges to sex distinct dress codes will be brought as direct discrimination claims. For discussion of this point in the English context see: Wintemute, 'Recognising New Kinds of Direct Sex Discrimination: Transsexualism, Sexual Orientation and Dress Codes' (1997) 60 Modern Law Review 334 , 337.
• [1996] IRLR 456 ; [1996] ICR 868.Hereafter 'Safeway.
• [1977] IRLR 360 ; [1978] ICR 85. Hereafter 'Schmidt'.
• Section 5(3) of the Sex Discrimination Act provides that any comparison undertaken under s (1) 'requires the relevant circumstances in the one case are the same, or not materially different, in the other'. This bears similarity to the comparison that must be made between the complainant and an employee in the 'same or substantially similar circumstances' mandated under the Human Rights Act 1993, s 22(1)(b) and the Employment Relations Act 2000, s 104(1)(a).
• Schmidt, above n 106, 88.
• [1995] ICR 472 , 481.
• Safeway, above n 105, 877.
• [2004] IRLR 248. Hereafter 'Thompson’.
• Case No 24 05602102, [83].
• Thompson, above n 115. [30].
• [1990] UKHL 6 ; [1990] 2 All ER 607. Hereafter, 'James'.
• G Bastin, 'Equity Varies With the Length of the Applicant's Hair' (1997) 2 Journal of Civil Liberties 115 , 120.
• Section (6)(2)(b). For a useful outline of the required elements of a discrimination claim under the Sex Discrimination Act see Thompson, above n 115, [15]. Note this is a different framework from the New Zealand legislation where a dismissal or detriment that occurs by reason of a prohibited ground is a separate ground of unlawful discrimination under the Human Rights Act 1993, s 22(1)(c) or the Employment Relations Act 2000, s 104(1)(b).
• R v Birmingham CC, ex P EOC [1989] IRLR 173 , 175 (HL).
• See Pitt and Clayton, 'Dress Codes and Freedom of Expression' (1997) European Human Rights Law Review 54 , 63; Flynn, above n 8, 262; Palmer, Moon and Cox, Discrimination at Work: The Law on Sex, Race, and Disability Discrimination (3rd ed, 1997) 32; Wintemute, above n 104, 337.
• James, above n 118, 611 per Lord Bridge, and 617 per Lord Goff.
• See McColgan, Discrimination Law (2nd ed, 2005) 484; Wintemute, above n 104, 334.
• Thompson, above n 115, [26].
• Safeway, above n 105, 876, 878.
• For background to the Sex Discrimination Act, see White Paper — Equality for Women 1974. For a helpful explanation of the legislative background to the Act generally see: K O'Donovan and E Szyszczak, Equality and Sex Discrimination Law (1988) 21-47.
• (unreported, 1 June 1990).
• Cited in Safeway, above n 105, 877.
• Carroll v Talman Fed Sav & Loans Ass'n of Chicago, above n 54; O'Donnell v Burlington Coat Factory Warehouse Inc, above n 54.
• Burrett v West Birmingham Health Authority [1994] IRLR 7. For comment on the decision, see Cunningham, (1995) 24 Industrial Law Journal 177. However, a different approach to the imposition of solely female dress requirements was taken in Stoke-on-Trent Community Transport v Cresswell EAT/359/94, noted in Flynn, above n 8, 261.
• See generally: McColgan, 'Cracking the Comparator Problem: Discrimination, 'Equal' Treatment and the Role of Comparisons' (2006) European Human Rights Law Review 650 , 650; Westen, 'The Empty Ideal of Equality' (1982) 95 Harvard Law Review 536 , 545; Gregory, above n 9, 12-30; Fraser, 'The Jurisprudence of Equality and Canada and New Zealand's International Human Rights Obligations' in Judicial Seminar on Gender Equity (1997) 7; Fredman, Discrimination Law (2002) 7.
• Westen, ibid, notes 'equality is entirely circular. It tells us to treat people alike, but when we ask who "like people" are, we are told they are "people who should be treated alike".' (at 547).
• Fredman, above n 136, 8.
• McColgan, above n 136, 656.
• Fredman, above n 136, 98.
• For the comparison required to establish less favourable treatment in America, see above n 77; for the comparison required in England, see above n 107.
• Wintemute, above n 104, 355.
• Above, n 54.
• See generally, Bartlett, 'Only Girls Wear Barrettes: Dress and Appearance Standards, Community Norms and Workplace Equality' (1994) 92 Michigan Law Review 2541 ; Klare, 'Power/Dressing: Regulation of Employee Appearance' (1992) 26 New England Law Review 1395 , 1420.
• Selmi, 'The Many Faces of Darlene Jespersen' (2007) 14 Duke Journal of Gender Law and Policy 467 , 481.
• Hamm v Weyauwega Milk Products Inc, [2003] USCA7 289 ; 332 F.3d 1058 , 1067 (7th Cir. 2003).
• Safeway, above n 105, 878.
• P v S [1996] ICR 795.
• Regulation 2A(1) provides that a person (A) discriminates another person (B) if he treats B less favourably than he treats or would treat other persons, and does so on the grounds that B intends to undergo, is undergoing or has undergone gender reassignment. For general explanation of the amendment see: McColgan, above n 125, 711-719.
• Above n 105, 482.
• [1973] USCADC 379 ; 157 U.S.App.D.C. 15 , 481 F.2d 1115 , (1973).
• Ibid 1124-25.
• As noted by Pizer, above n 75, 303, referring to the case of Oiler v Winn Dixie Stores Inc, (BNA) 1832 (E.D.La) 2002.
• [1978] QB 233.
• Jeremiah v Ministry of Defence [1980] ICR 13.
• Bastin, above n 120, 119-120.
• Safeway, above n 105, 881, per Peter-Gibson LJ.
• Section 7(1)(a) of the Sex Discrimination Act provides that the statuory 'general occupational defence' can only be relied upon in instances where discrimination has occurred pursuant to the employer's determination of who should be employer, or by refusing or deliberately omitting to offer employment.
• As noted by Wintemute, above n 104, 356.
• It was noted by Lord Goff in James, above n 118, 619, that questions of intention, motive and purpose hold no relevance in the determination of direct discrimination claims under s 1(1)(a) of the Sex Discrimination Act. See further Pitt and Clayton, above n 123, 62.
• Selmi, above n 147, 481.
• Safeway, above n 105, 1112.
• Skidmore, 'Sex, Gender and Comparators in Employment' (1997) 26 Industrial Law Journal
• Williams, above n 28, [49].
• See, for example: Proceedings Commissioner v NZ Post Ltd [1991] NZEOT 3 ; [1992] NZAR 111 ; Proceedings Commissioner v Air NZ Ltd [1987] NZEOT 1 ; (1987-1989) 7 NZAR 462. See generally: Clay Cross (Quarry Service) v Fletcher [1979] 1 All ER 474 , 477 per Lord Denning.
• For employment policies to be incorporated into employment contracts the policies and their notification must be 'fair and reasonable' Carter Holt Harvey v Pawson [1998] NZEmpC 38 ; [1998] 2 ERNZ 1 per Judge Colgan. In NZALPA v Air New Zealand Ltd [1991] NZEmpC 62 ; [1992] 1 ERNZ 880 the Employment Court held that discretionary changes of policies would require the consent of employees if they affected existing terms and conditions of employment. For general discussion, see Mazengarb [1018A].
• See generally: Brookers Employment Law [103.27(2)(b)-(4)]; Mazengarb [103.69] and following. Note, the Employment Court in Williams, at [45], did appear to recognise that the make-up requirement could not be unilaterally imposed, through its introduction under house rules, as it was judicially recognised that the employer's attempts to introduce the requirement as part of the house rules had not been communicated to the complainant, and had not been agreed to as a variation of the complainant's contract.
• Human Rights Act 1993, s 22(1)(b) ; or under s 104(1)(a) Employment Relations Act 2000 whether the complainant has been offered the 'same terms' of employment. See discussion, n 24.
• H v E (1985) 5 NZAR 333 , affirmed in Transportation Auckland Corporation Ltd v Proceedings Commissioner [1998] 1 ERNZ 282 (HC). See generally Brookers Human Rights Law [22.13]. It must, however, be noted that judicial preference for the 'substantial and operative factor' test has recently been demonstrated. See Claymore Management Ltd v Anderson [2003] 2 NZLR 537 , discussed in Mazengarb [4022.16.4]. As this causal test is less stringent, it would also satisfy the approach.
• The term 'less favourable' has not been defined by the New Zealand courts. See Brookers Human Rights Law [22.07]. The proposed interpretation is influenced by the approach taken by the House of Lords towards the term in R v Birmingham CC, ex P EOC [1989] IRLR 173 , as discussed above.
• EOT, Decision NO 2/91, EOT 15/89, 14 August 1991, H Sargisson, Chairperson, CWP Pascoe, and LM Wilson, members. See also Proceedings Commissioner v Armourguard Security (1992) EOC 92-412 ; Proceedings Commissioner v Boakes (EOT Decision 1/94, EOT 14/92, 13 April 1994).
• See, for example, Bartlett, above n 146, 2570; Miller, above n 73, 1366.
• Buchbinder, Masculinities and Identities (2004) 36.
• Case, above n 39, 7.
• Crown Law Opinion on the Human Rights (Gender Identity) Amendment Bill (2 August 2006). This opinion was commissioned to examine whether a Private Member's Bill to introduce gender identity as a prohibited ground of discrimination under the Human Rights Act was necessary. The opinion led to the withdrawal of the Bill.
• Ibid [29]. Reliance was placed on Chief Constable of West Yorkshire Police v A [2004] UKHL 21 ; [2005] 1 AC 51 (HL) , and Vancouver Rape Relief Society v British Columbia Human Rights Commission and British Columbia Human Rights Tribunal (2003) 35 CHRR 390.
• [2004] UKHL 21 ; [2005] 1 AC 51 (the decision was decided without reference to the Sex Discrimination (Gender Reassignment Regulations) 1999).
• For many transgendered individuals surgery is not required for the expression of their gender identity. See Report on the Inquiry into Transgendered Discrimination, above n 18, [8.23].
• Ibid [9.50].
• See Quilter v Attorney General [1997] NZCA 207 ; [1998] 1 NZLR 523 , 575.
• [2008] NZCA 264.
• Ibid [93]; also see paras [20]-[92]. Note, the New Zealand Supreme Court has granted leave to appeal this aspect of the decision [2008] NZSC 16.
• For general commentary on the decision see: Hughes, [2008] Employment Law Bulletin 80. It must be noted that the Human Rights Review Tribunal in CPAG v Attorney General (Human Rights Tribunal, 16.2.08, Decision 31/08) observed that in the analysis of discrimination a 'search for precise exactness of circumstances' carries a 'risk of injustice' and indicated a purposive approach should be taken towards the comparator issue under the New Zealand Bill of Rights Act 1990.
• See Brookers Human Rights Law [27.01-07]; Mazengarb [4027-2]. Under the Sex Discrimination Act 1975 (UK), s 7(2)(a), an exception is provided if 'in a dramatic performance or other entertainment, for reasons of authenticity, the essential nature of the act would be materially different if carried out' by a member of the other sex. It has been argued that the authenticity requirement provides inadequate protection for female actors, and that a model of 'societal casting' should be developed: see Pitt, 'Madam Butterfly and Miss Saigon: Reflections on Genuine Occupational Qualifications' in Dine and Watt (eds), Discrimination Law: Concepts, Limitations and Justifications (1996) 198-206.
• Mazengarb [4027.4.2].
• Above n 93.
• Mazengarb [4027.4.3].

195 Report on the Inquiry into Transgendered Discrimination, above n 18, [9.50].

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This Transgender Archive’s Oldest Artifacts Tell a Story of Courage and Community

The Digital Transgender Archive was born out of two researchers’ frustration with finding materials by and about transgender people

Erin Blakemore

Correspondent

People whose gender identity does not conform to the one assigned to them at birth have long faced discrimination, harassment and assault. Though it remains unclear  just how many people identify as transgender today, trans visibility in mass culture is higher than ever before. Now, a new digital archive is calling attention to the long history of transgender people—and its oldest artifacts highlight trans culture and remind people of just how long transgender people have been struggling for visibility and civil rights.

The Digital Transgender Archive is an online hub for materials about trans people. It encompasses more than 20 public and private collections of documents, ephemera and memorabilia from gender nonconforming people in an attempt to make their history more visible.

Gathering those materials hasn’t been easy. The archive itself was born out of two researchers’ frustration with finding materials by and about transgender people. The term “transgender” is only a few decades old, as  the archive’s team explains , which makes the search for older materials and the process of finding which institutions own which materials challenging. In response to the lack of a comprehensive, organized history, an international collaboration was born and thousands of documents have been collected and digitized.

The collection's holdings illustrate the courage and resilience of transgender people who lived long before things like gender confirmation surgery were widely available. Here are a few of the archive’s oldest (and most interesting) holdings:

Editor's Note, April 5, 2016: The world's largest transgender archives can be found at the  Transgender Archives  at the  University of Victoria .

Reed Erickson, 1931

This photograph is of Reed Erickson, a trans pioneer who helped educate the world about transgender people. Born Rita Erickson in 1917, Reed officially changed his name in 1963 and had gender confirmation surgery two years later.

A successful entrepreneur and wealthy businessman, Erickson founded the Erickson Educational Foundation (EEF) . His initiative funded innumerable research and education projects that taught the public about transgender people, sex reassignment and gender identity. At the time of this photograph, Reed was 14 years old and still lived as "Rita."

'Sexology', 1954

This volume of Sexology contains an early scientific attempt to characterize how gender nonconforming individuals in the 1950s behaved. It also showcases the biases common at the time, referring to transgender behaviors as “deviations” and blaming things like cross-dressing on “the smothering mother.”

Alison Laing, 1961

In this 1961 photo , Alison Laing poses in evening wear, one of 36 photos taken from 1956 to 1965 by an unknown individual—most likely, the Advocate speculates , her wife, Dottie. 

Laing is a pioneer in the trans community. She cofounded the Renaissance Education Association , a non-profit that educates and supports trans people, and helps transgendered people with presentation tips to this day.

'Female Impersonators on Parade', 1960

This 1960 magazine is just one edition of  Female Impersonators on Parade , a magazine highlighting drag queens and other gender nonconforming individuals. The pictures inside give a fascinating glimpse into the often-undocumented world of drag, along with commentary on how cross-dressers got used to women's clothing and accounts of the difficulties faced by men who dared to appear in public as women.

“The amateur female impersonator likes the gay social movements he finds in the company of others with the same likes and desires in experiencing the graceful life of a woman,” read one article. “The sympathetic understanding they derive in knowing that others are in the same plight as themselves often compels them to take the chance of being arrested by attending so-called ‘drag’ balls, where they can act and dance like women and discuss the latest feminine fashions of the day.”

Like drag balls, Female Impersonators on Parade itself wasn’t immune to prosecution and discrimination: In 1964, the magazine was investigated by a New York legislative committee studying “offensive and obscene material.”

'Vanguard Magazine', 1967

This edition of Vanguard Magazine: The Magazine of the Tenderloin gives a sense of the issues faced by transgendered individuals living in San Francisco in the late 1960s. Covering everything from poverty to anti-gay laws, prostitution to the hippie movement, the sometimes explicit magazine was founded by street youth.

A letter in the magazine illustrates one of the reasons why San Francisco was a haven for gay and transgender youth during the 1960s—community:

“In this letter to you, I want to give moral support to anyone who may want to do what I’ve done, but isn’t sure of quite how,” wrote an anonymous author. “The change in me came after years of living without an identity. Not long ago I didn’t know who I was. Now I know.” The letter was simply signed “A Tenderloin Resident.”

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Erin Blakemore | | READ MORE

Erin Blakemore is a Boulder, Colorado-based journalist. Her work has appeared in publications like The Washington Post , TIME , mental_floss , Popular Science and JSTOR Daily . Learn more at erinblakemore.com .

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• Published: 17 June 2024

Perceived social support, self-esteem, and depression among Indian trans men with and without sex reassignment surgery

• Sairaj M. Patki   ORCID: orcid.org/0000-0003-1699-4356 1 ,
• Poonam Gandhi   ORCID: orcid.org/0000-0003-4210-4636 2 ,
• Aditya P. Walawalkar 3 &
• Anukriti A. Goyal 4  

Humanities and Social Sciences Communications volume  11 , Article number:  772 ( 2024 ) Cite this article

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The psychological challenges associated with gender identity in developing countries like India are only recently receiving research attention. The study aimed to understand self-esteem, perceived social support, and depression among trans men in India. A comparative analysis was also undertaken between those who have and have not undergone sex reassignment surgery. The sample comprised 30 trans men, out of which 15 had undergone sex reassignment surgery and 15 had not. The Multidimensional Scale of Perceived Social Support, Rosenberg Self-esteem Scale, and Beck’s Depression Inventory-II were used. Perceived social support from family and friends was found to be a significant predictor of self-esteem. Support from all three sources—family, friends, and significant others significantly predicted depression among the total sample. Trans men who had undergone sex reassignment surgery, reported higher self-esteem and lower depression levels, as compared to those who were yet to undergo surgery. The findings highlighted the contribution of social support in fostering the mental health of trans men. The consequent psychological benefits of surgery were also demonstrated. The study has implications for planning and designing mental health interventions for this community.

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Introduction.

Gender has been discussed across academic and activist circles for several decades and the perspectives have evolved. There has been a shift in how people view gender and sex in recent years, but society at large has a long way to go in achieving acceptance and full comprehension of how people experience gender differently. Gender is a multidimensional structure and the word “structure” helps situate gender as central to a society’s core organization as the economic and political structure (Risman et al. 2022 , p. 4). There are many cultural and social implications for one’s gender identity since it determines many aspects of one’s existence and identity in day-to-day life. Literature on gender has traversed from the critique of binary understanding and hetero-normativity paradigm to a growing corpus of research on gender identities that makes transgender/cisgender issues complex involving concepts such as gender fluidity, queerness, gender ambiguity and non-binary gender categories (Schilt and Lagos 2017 ). Sociological scholarship in this area received attention with many considering Harold Garfinkel’s case study of Agnes to be the first sociological examination of a person going through a transition (Connell 2009 in Schilt and Lagos 2017 ). Schilt and Lagos in their analysis of the history of transgender studies in sociology distinguish between two main paradigms that have shaped sociological writing about transgender people: an emphasis on gender deviance and a focus on gender difference. Explaining the formation of “the transsexual” as a medical diagnostic and a collective group identity was the main focus of the gender deviance paradigm, which peaked in the 1970s and continued to be dominant until the 1990s (ibid p. 426). However, the term “transsexual” is outdated, having originated in early sexology literature to differentiate between cross-dressing and full-time transgender identity (Meyerowitz 2002 in Schilt and Lagos 2017 ). People whose gender identity does not necessarily match the sex category they were assigned at birth are referred to as transgender (Serano 2013 in Schilt and Lagos 2017 ). A variety of gender experiences, subjectivities, and presentations that lie outside, alongside, or in between the stable categories of “man” and “woman” are referred to as “transgender”. “Transgender” refers to a range of gender identities that challenge the conventional understanding of the relationship between gender identity and presentation and the “sexed” body, as well as gender identities that have historically been classified as “transexual”. Hines discussed how practices of gender diversity were distinguished from each other. In particular, ‘transsexuality’ was isolated from ‘transvestism’ (Hines and Sanger 2010 ). Harry Benjamin, a sexual reformer, played a key role in clearly classifying transsexuality and establishing surgical reconstruction a the proper “treatment” for the “transsexual condition” (Benjamin 1966 ).

Transgender studies as an academic field arose in the late 1990s as a critical approach that problematized the assumption that sex is an inflexible indicator of identity by exploring the cases where this assumption is challenged. A few cultural mechanisms that shape how gender personhood is assessed are laws, discrimination, social norms, medical advancements, and acknowledgement from others. These are some of the areas which social scientists have studied concerning transgender people (Sanger 2010 ). Being a gender minority in most regions of the world, they constitute a vulnerable section of society, with their identity-related challenges hampering their psychological health both at a personal and social level. The prevalence of psychopathology and mental health issues, especially depression, is higher in transgender people compared to the cis-gendered population (Bockting et al. 2013 ; Dhejne et al. 2016 ). Many changes and challenges come along with transsexuality. Some of them are feelings of isolation, depression, increased dependence, economic problems, and lowered self-esteem (Ardebili et al. 2020 ).

Moreover, while both trans men and trans women face social stigma, the challenges they face in their daily lives may differ significantly. For instance, transgender people often face availability and accessibility issues with public toilets since the existing infrastructure in the country mostly caters only to binary users. The plight of trans men is thought to originate from being assigned females at birth in a patriarchal society (Sarfaraz 2016 ). In an attempt to understand critical discourses around gender, transgender, trans queer and gender fluidity, the intersectionality lens can help show how trans people navigate the multiple hues of oppression revolving around their identities. The complex phenomena of identity and experiences of queer and trans requires an analytic framework like intersectionality which would capture a deeper understanding of the lives of trans and queer. The concept of intersectionality draws attention to the dynamic ways in which lived identities, structural systems, marginalization sites, forms of power, and resistance tactics “intersect” (May 2015 in Duran et al. 2019 ). Transgender people globally experience intersecting forms of social marginalization and are disproportionately affected by health inequalities. Due to prejudice, harassment, and healthcare professionals’ unwillingness to treat them, they encounter major obstacles while trying to get access to treatment (Wesp et al. 2019 ). Following the perspectives of the Queer Theory (Butler 2004 ), it is the social constructs enforced upon these individuals that force them to fit into culturally and rather arbitrarily determined gender categories and expectations. The struggle to meet these expectations while becoming aware of one’s desires may lead to significant psychological distress for trans men. The prevalence of non-suicidal self-inflicted injuries for instance is shown to be higher among trans men as compared to trans women (Claes et al. 2015 ).

The discourse around gender reassignment, genital surgery, and hormonal treatments gained momentum in sociological studies in the 1980s. Professor of women’s studies and medical ethics, Janice Raymond contends that transsexuality and surgical options for gender changes were created by the patriarchal and capitalist medical establishment in order to establish new medical markets and legitimize homosexual and gender non-conforming individuals (Raymond 1979 in Schilt and Lagos 2017 , p. 428). Margrit Eichler provides a solid critique of the medicalized elements of gender changes in a thesis that was extensively replicated in feminist sociology anthologies: “From a strictly physiological viewpoint, we must designate sex change operations as bodily mutilation—the willful destruction of physically healthy portions of the body for purely social reasons” (Eichler 1980 , p. 87). However, later empirical studies have highlighted the agency of transgender people to reclaim their identity by undergoing medical interventions to realign their gender and sexual identity. Ekins and King ( 2006 ) in their book argue that all transgender identities emerge within one of the four modes of trans gendering: those of ‘migrating’, ‘oscillating’, ‘negating’, and ‘transcending’. They identified five sub-principal processes variously operative within each mode: those of ‘erasing, ‘substituting’, ‘concealing’, ‘implying’, and ‘redefining’. Over the past decade ‘redefining’ identity and body by undergoing medical interventions has gradually gained acceptance through studies that have shown the process is a challenging one.

There is a growing body of literature that points toward the benefits of medical interventions like hormonal therapy and sex-reassignment surgery concerning variables like sexual health, sexual satisfaction, quality of life (Wierckx et al. 2011 ), and mental health. A meta-analysis by Murad and colleagues covering 1833 participants, revealed that sex-reassignment surgery led to a significant improvement in sexual functioning, gender dysphoria, and quality of life and significantly reduced psychological symptoms associated with gender dysphoria (Murad et al. 2010 ). The findings for hormonal therapy have not been as conclusive, with some studies indicating that the benefits are statistically significant, while others suggest insignificant to modest improvements in psychological variables. Considering the specific challenges faced by transgender people in developing countries with aggravated societal issues related to their gender identities and with compromised access to medical treatment owing to its acceptability, financial costs involved, and other hurdles, more such studies need to be conducted to obtain further empirical data.

Self-esteem among people with non-binary gender identities

Internalized transphobia due to stigma has a negative relationship with one’s self-esteem whereas there is a positive relationship between self-esteem and social connectedness (Austin and Goodman 2016 ). Data from a Pakistani sample showed that 74% of transgender people had low to moderate levels of self-esteem (Akhtar and Bilour 2019 ). Low self-esteem was found to be a predictor of symptoms of anxiety and depression (Bouman et al. 2017 ). Vosvick and Stem ( 2019 ) found that self-esteem is significantly important for the psychological quality of life of the LGBT community. It moderates the relationship between stress and psychological quality of life. It is common for trans men to experience dissatisfaction with their bodies, which often results in opting for medical procedures to increase their levels of satisfaction. Research suggests that the stress of being a sexual and gender minority can affect one’s self-esteem more than the general population. Mastectomy led to an improvement in body image in a study conducted among 33 transmen. This consequently played a role in improving the overall self-image and sense of self-worth (Van de Grift et al. 2016 ).

Prevalence and common correlates of depression among transgender people

Experiences of transphobia, stigma, and social rejection are all potential contributing factors to the onset of depression. A study found that the prevalence rates of depressive symptoms among transmen were significantly more than those in the general population (Budge et al. 2013 ). This is in line with the minority stress model since transgender people belong to a stigmatized minority group. The distress is likely to manifest as some mental disorder. Another study based in the United States found that 44.1% of their transgender participants had clinical depression followed by anxiety and somatization disorder. The psychological distress they faced was positively associated with social stigma, but support from peers acted as a moderator (Bockting et al. 2013 ). A review echoed these findings since the prevalence of psychopathology and mental disorders in transgender people was found to be higher than in the cis-gendered population. These were mostly depressive and anxiety disorders but there was also proof that the conditions improved after going through medical interventions that were gender-confirming (Dhejne et al. 2016 ). Studies have highlighted augmentation of quality-of-life post-reassignment surgery, fewer signs of depression post-surgery and an improved sense of self-identity.

Role of perceived social support in fostering mental health of transgender people

Social support plays a significant role in self-perception, resilience, attachment styles, and many other factors that contribute to having a good quality of life. Social support from family and friends was associated with better quality of life in people with gender dysphoria in Turkey (Basar et al. 2016 ). Poor social support was found more in people with gender dysphoria which was then associated with the presence of a psychiatric disorder (Kaptan et al. 2021 .) It has been identified that social support moderates the psychological distress that accompanies gender dysphoria-related discrimination (Testa et al. 2012 ). It adds to the resources an individual uses for coping with stress. Trujillo and colleagues conducted a series of surveys that found that discrimination based on gender identity acted as a positive predictor of deteriorating mental health or the emergence of clinical symptoms. The onset of depression would lead to suicidal ideation but it was found less in people who had moderate to high social support from their friends or significant others (Trujillo et al. 2017 ). Research done on an Australian sample had similar findings and suggested that a lack of perceived social support was the most significant predictor of symptoms of depression (Boza and Perry 2014 ). Social support from family has proven to be associated with diminished feelings of psychological distress (Bockting et al. 2013 ). It also leads to lower suicidal ideation and risk (Bauer et al. 2015 ).

Specific challenges faced by the transgender community in the Indian context

Some cultures are very rigid about their gender roles which can lead to difficulties for those who are unable to abide by them. India is one such country where conversations about gender identity and sexuality are still difficult because of the taboo and stigma attached to it. In the majority of cases, being anything other than cisgender or heterosexual is scorned by society. Formal gender sensitization interventions have only recently begun and these too are more prevalent in the developed sections of society in metros and big cities.

Structured policy-level efforts thrive on data. In 2011, an attempt was made to identify the size of the transgender population in India. The results identified approximately 4.88 lakh people belonging to the ‘other’ category that was neither male nor female (Ministry of Social Justice and Empowerment 2019 ). While the numbers themselves are thought to be a gross underestimation, exact official statistics on the various categories of non-binary people in the country are not available. Without an official identity beyond the umbrella transgender label, the various non-binary people in India are devoid of easy access to public facilities and to various schemes offered by the government.

In 2017, the Central Government issued guidelines under the Swachh Bharat Mission, making it mandatory for transgender people to be permitted into public toilets designated for both men and women, depending on their choice. In reality, however, the challenges faced by transwomen and transmen in accessing toilets according to their choice, continue to exist. Transmen who have not undergone phalloplasty are unable to use men’s toilets where there are no private stalls, while transwomen are often ill-treated or denied access to toilets meant for women (Behal 2021 ). Moreover, anecdotal evidence has found significant differences in the treatment that trans men and trans women receive in India. Trans men are lesser known and therefore have fewer helping bodies or aides as compared to the trans women community. The cost of treatment and surgeries are more expensive and they face stigma from the trans women community.

In India, the concept of ‘third gender’ has been introduced for individuals who do not identify as ‘male’ or ‘female’. There is a history of the third gender in the Indian context which reflects the embedded cultural-religious existence of the community of “hijras”. The hijras are a religious community of men who dress and act like women and whose life and culture centers on the worship of the Bahuchara mata (mother-goddess), one of the many versions of the mother goddess worshiped throughout India (Nanda 1990 , Preface). The Hijras may choose to undergo castration or are born intersex. Though the third gender is referred to in mythological tales and is visible in contemporary India, there is a mystery which surrounds them and hence instils fear about the community. There is very little understanding or knowledge however about the transgender community. Many associated misconceptions add to the negative stereotypes and taboo of being transgender. There is a general fear of revealing their identities and despite being promised confidentiality, it acts as an obstacle in the quest for information. This explains why there is little research in this field when it comes to scoping the demographic details of the transgender population or their experiences in India.

The present study

The concepts of self-esteem, perceived social support, and depression have been abundantly researched in the context of cis-gendered people, but the trans men community, especially in India, has been underrepresented if not completely excluded from such studies. Furthermore, the psychological experiences of trans men who have and haven’t undergone sex reassignment surgery have not been sufficiently documented in the country. Given this context, it becomes even more important to empirically explore the mental-health-related experiences of trans men in India. For a collectivistic country like India, social support is a crucial factor concerning psychological experiences and as demonstrated by earlier studies, a vulnerable population like that of trans men would benefit even more from such support amidst their ongoing identity-related struggles. Our study thus aimed at understanding the relationship between perceived social support, self-esteem, and depression among trans men in India, and at understanding the differences in psychological experiences between those who have and haven’t undergone sex reassignment surgery.

A purposive sampling technique was used to recruit participants that fit the requirements of the study. The primary researcher collected the contact details of prospective participants from a closed group of individuals who had already been in contact with the researcher through social media for medico-legal and social guidance for gender dysphoria and related issues. To minimize selection bias, all individuals who fit the inclusion criteria of being above 18 years of age, having a basic eighth-grade level of English proficiency, and identifying themselves as trans men, were contacted over the phone to request their participation. Considering the issues of taboo and lack of awareness associated with gender and sexuality in the country, the large number of closeted individuals in the queer community, and the lack of a formal census of the community, estimates of the population size of individuals that fit the inclusion criteria for the study would have been rather arbitrary. A statistical approach to estimate sample size adequacy was thus utilized for the study. The review of studies exploring similar variable relationships across similar populations indicated moderate to strong relationships. For instance, general social support was found to be a prominent predictor of depression among both trans men and trans women (Pflum et al. 2015 ), while self-esteem was found to be significantly related to depression among trans men and trans women (Catelan et al. 2022 ). The correlation coefficients in these studies were r  = 0.52 and r  = 0.73 respectively. Given these coefficients and alpha set at 0.05, sample size calculators suggest a sample size between 18 to 42 as adequate (Hulley et al. 2013 ). The final sample comprised 30 trans men ( N  = 30) above the age of 18 (Mean age = 30.63 years) who consented to participate in the study. Half of the sample were trans men who had not undergone sex reassignment surgery (Group A). The other half were trans men who had undergone sex reassignment surgery (Group B).

The Multidimensional Scale of Perceived Social Support (Zimet et al. 1988 )

Perceived social support from the individual’s family, friends, and significant others was measured using the Multidimensional Scale of Perceived Social Support. It has 12 items, four each for the three social groups. The test taker is expected to indicate their level of agreement on a seven-point scale. A high score indicates a high level of perceived social support. The internal reliability of the scale was calculated to be 0.88. The construct validity of the scale was established by correlating the scale scores with the depression subscale of the Hopkins Symptom Checklist (HSCL), with the results showing an overall negative relationship between perceived social support and depression (Zimet et al. 1988 ).

Rosenberg Self-esteem Scale (Rosenberg 1979 )

The Rosenberg Self-esteem Scale was used to measure the participants’ self-esteem levels. It is a 10-item scale and each item can have a minimum score of zero and a maximum score of three, based on how much the test-taker agrees with the statement. The total is calculated for all 10 statements and higher scores are indicative of higher levels of self-esteem. The test-retest correlations are reported to range from 0.82 to 0.88 and its internal consistency ranges from 0.77 to 0.88, making it a reliable measure of self-esteem across various populations. The scale also showed good construct and concurrent validity (Wongpakaran and Wongpakaran 2012 ).

Beck’s Depression Inventory—II (Beck et al. 1996 )

The study used Beck’s Depression Inventory to measure the occurrence and severity of depressive symptoms among the participants. The test was developed to measure the severity of depression in individuals between the ages of 13 to 80. It is not a diagnostic tool but has been used widely in clinical and applied psychology research. It has 21 items and can be self-administered. The author provides categories based on the severity of depression, with high scores indicating higher levels of experienced depression. The test-retest reliability and internal consistency are both highly acceptable (0.93 and 0.92 respectively). It is also known to demonstrate good overall construct validity based on ratings from experts (The National Child Traumatic Stress Network 2018 ).

The research proposal was formally approved by an independent external reviewer appointed by the Indira Gandhi National Open University (Study Centre 16144, PCE16/PP1219/19, for enrollment no. 185947736). The researchers conducted the study in accordance with all necessary ethical principles of human participants’ research and research with vulnerable communities as mentioned in the Declaration of Helsinki (World Medical Association 2013 ). Written signed consent when dealing with sensitive topics can potentially raise trust issues and hindrances in rapport establishment in developing countries (Krogstad et al. 2010 ) and work with certain communities, wherein oral consent is deemed to be preferable (Gordon 2000 ). Thus, oral consent was obtained from all participants before recruitment in the study. Data was collected by the primary field researcher who already had an established rapport with the trans men groups and no external agencies or research assistants were involved in the entire process to ensure the complete anonymity of the participants and confidentiality of the data.

Pearson’s Product Moment Correlation coefficients were calculated to investigate the relationship between perceived social support, self-esteem, and depression among the trans men. To understand the possible differences across these variables between those trans men who had not undergone sex reassignment surgery and those who had, an independent samples t -test was used after ascertaining that the assumptions for the independence of observations and normality of data are met.

This section presents the findings of the correlational analysis performed to study the relationship between perceived social support, self-esteem, and depression among the sample studied. These are followed by findings of the comparative analysis performed to assess the psychological benefits of sex reassignment surgery.

Perceived social support, self-esteem, and depression among Indian trans men

As seen in the summary of the correlation matrix (Table 1 ), results showed significant positive correlation between perceived social support from family and self-esteem and between perceived social support from friends and self-esteem. Regarding the relationship between perceived social and depression in the sample studied, there was a significant negative correlation between depression and perceived social support from family, friends, and significant others.

Following the results of the correlation analysis, a multiple linear regression analysis was performed. The first model with perceived social support from family and friends as predictors of self-esteem was significant, ( F (2, 27) = 34.23, p  < 0.001, R 2  = 0.72). The individual predictors were examined further and indicated that both social support from family ( t  = 5.22, p  < 0.001) and friends ( t  = 3.96, p  < 0.001) were significant predictors in the model. The second model tested perceived social support as a predictor of depression and emerged significant ( F (3, 26) = 20.08, p  < 0.001, R 2  = 0.70). Perceived social support from family ( t  = −4.85, p  < 0.001), friends ( t  = −2.79, p  < 0.01) and significant others ( t  = −2.48, p  < 0.02) were all significant predictors in the model.

The independent samples t -test analysis (Table 2 ) shows that while perceived social support was higher among those trans men who had undergone sex reassignment surgery as compared to those who hadn’t, the difference was statistically significant for perceived social support from friends. Trans men in the sample who had undergone surgery also demonstrated significantly higher self-esteem and significantly lower levels of depression, with the mean scores indicating mild to moderate depression as compared to moderate to high depression among those who hadn’t undergone surgery. Given the small sample size of the study, a post hoc power analysis was performed using Daniel Soper’s online statistical calculator. Across the analyses performed, the obtained power was found to range between 0.81 and 1.00 (Soper 2024 ).

The present study was conducted to study the role of perceived social support in predicting self-esteem and depression among trans men in India and to explore the differences in the levels of self-esteem and depression between trans men who had and who had not undergone sex reassignment surgery. The study has replicated the findings of studies conducted on these variables, albeit in the context of trans men in India, in an attempt to fill the gaps in empirical literature available on mental-health experiences of the transgender community in a collectivistic developing country like India. Empirical and theoretical research has highlighted how trans gendering emerges through the process of self-discovery, wherein oscillating on the gender spectrum and finally transcending to a trans identity is not only an overwhelming journey but also an anxiety-prone process. This study contributes to the parsing of data on trans men and their journey of redefining or struggling with their sexual identity crisis.

The positive relationship between self-esteem and perceived social support from family and friends observed in the present study is in line with previous research done in this area (Austin and Goodman 2016 ). Our study also revealed that trans men are less likely to experience depressive symptoms if they perceive the availability of support from family and friends. Social support plays a significant role in self-perception, resilience, attachment styles, and many other factors that contribute directly or indirectly to having a good quality of life and overall better mental health (Basar 2016 ). It has been found that the quality of social support is a good predictor of depressive symptoms in transgender people (Trujillo et al. 2017 ; Boza and Perry 2014 ). Other research has found that social support can moderate the effect of psychological distress which has implications for depressive symptoms (Bockting et al. 2013 ; Boza and Perry 2014 ; Testa and Sciacca 2012 ). A recent study maintained that relationship quality was a significant predictor of well-being and that social support is crucial for transgender youth’s well-being regardless of their gender identification (Alanko and Lund 2020 ). For a marginalized community like transgender people, in a society that challenges their identity more frequently than not, obtaining social support would surely foster feelings of self-worth and thus consequentially lead to improved mental health.

Our study showed that trans men who had undergone sex reassignment surgery reported significantly higher levels of self-esteem and lesser levels of depression. The psychological benefits of surgery have been established in earlier studies, especially in the context of body satisfaction, positive body attitudes, self-esteem, and body image-related quality of life among trans men. In 2020 for instance, a group of researchers did a review to study the breadth of research available on the quality of life for individuals after sex alignment surgery (Ardebili et al. 2020 ). The results were in line with the results from a previous study (Valashany and Janghorbani 2018 ). The study suggested that quality of life increases post-surgery. The increase in self-esteem is believed to be a result of an improvement in their body-image issues after aligning their body to their gender. Fewer signs of depression after the surgery can be attributed to the diminishing feelings of dysphoria, as well as the improvement in self-esteem (Van de Grift et al. 2016 , 2018 ). The psychological benefits of surgery are expected to result from an improved sense of one’s identity after having struggled with gender dysphoria for several years. Especially amidst societies that have a restricted view of the genders, such cohesiveness at a personal level resulting from the sex reassignment surgery can be expected to contribute to positive outcomes in the realm of mental health at large. Researchers have examined the dynamics of transgender people’s relationships and family responsibilities with other family members within the field of family sociology. They have also examined how these dynamics may change when a person begins a physical transition. Hines conducted interviews to see how people handle telling family members that they have decided to start a medically managed transition (Schilt and Lagos 2017 ). In India, family support is considered crucial in navigating the reassignment surgery, especially in the context of “ dharma ” (duty towards parents and siblings). The collectivistic nature of India propels even transgender people to repay their parents or caregivers by fulfilling their heteronormative roles and duties. Hence, in a society where heteronormativity is the norm, receiving social support from family and friends for reassignment surgery is critical for fostering healthy self-esteem.

Limitations of the study

While the insights that emerge from the findings of the study can be expected to help in multiple areas of focused community interventions for trans men in the country and to help spread awareness about the mental health challenges faced by this community among the general public, the study had a few limitations. A larger sample size with a wider demographic and geographical spread across the country would have helped us gain broader insights. Caution must be exercised when attempting to generalize the findings of the study. The sensitivity of the topic also did not facilitate the conduction of detailed one-on-one interviews that may have facilitated qualitative analysis to further understand the complexities of the lived experiences of the participants in the context of the variables studied. The widespread ignorance about the non-binary genders in the country, the lack of awareness about gender-specific mental health needs, the paucity of non-profit organizations catering to the needs of this community, and the lack of centralized bodies that document the gender-related census-like data, call for more efforts and studies in this area.

Conclusions

The results from this study show that perceived social support is important at every stage of gender dysphoria, no matter how far along they are in their gender affirmation journey. Perceived social support especially from family and friends is vital for determining the self-esteem as well as depression levels of trans men. Trans men like trans women have to negotiate the expectations of family versus their reality and with support from near ones, their journey of sex realignment, though fret with challenges, has been with less turmoil. The comparison between trans men who had undergone sex reassignment surgery and who had not, revealed that the former group experienced significantly higher self-esteem and lower depression relative to the latter group. The study thus reiterates the role of surgery in improving the mental health of trans men and points towards efforts aimed at spreading awareness about this among trans men in India and the society at large. Future research can compare the psychological experiences of trans men across three groups—those who haven’t started any reaffirming interventions, those undergoing hormone therapy and those who have undergone sex reassignment surgery. The social support received by trans women and trans men for such procedures can be compared as well. Attempts should also be made to conduct longitudinal studies to specifically understand long-term direct and indirect psychological effects of sex reassignment surgery (the study of sexual activity post-surgery and consequent life satisfaction for instance has received little attention in the Indian context). Such studies will help in designing relevant intervention modules.

The Indian Government has started initiatives and schemes for marginalized communities with some specific ones aimed to benefit the transgender population. For instance, under the Ayushman Bharat Scheme, the Ayushman Bharat TG Plus health insurance has been rolled out, which offers a cover of a sum of Rs. 5 lakhs annually to transgender persons in the country. All facets of healthcare linked to transition will be covered by the Comprehensive Package. This includes (but is not limited to) hormone therapy, sex reassignment surgery, as well as necessary post-operative procedures that are performed at any public or private healthcare facility (ETGovernment 2022 ). While these initiatives address the financial challenges faced by the community, addressing the more systemic issues calls for sustained and multi-level efforts. The study has implications for interventions including awareness drives, psycho-education, individual counseling, family therapy, medical camps and support groups. Queer-affirmative therapy is only recently being offered by a limited number of mental health practitioners. The limited availability and accessibility of these services pose a major challenge in a country already struggling to meet the gap between demand and supply for mental health services. There is a dire need to include queer-specific therapy training in the curriculum of programs directed towards counselors, psychotherapists and even frontline medical professionals. Efforts should also be made to make the surgery more accessible and affordable for this population that is already facing the challenges of social discrimination and personal distress.

Data availability

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Acknowledgements

The researchers would like to acknowledge the cooperation extended by all the participants who volunteered to be a part of the study. We would also like to acknowledge the assistance provided by Ms. Sanayah Sansare, a third-year undergraduate student at FLAME University, for her contribution to the article writing process.

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Patki, S.M., Gandhi, P., Walawalkar, A.P. et al. Perceived social support, self-esteem, and depression among Indian trans men with and without sex reassignment surgery. Humanit Soc Sci Commun 11 , 772 (2024). https://doi.org/10.1057/s41599-024-03270-4

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Gender Dysphoria and Gender Reassignment Surgery

Decision summary.

Currently, the local Medicare Administrative Contractors (MACs) determine coverage of gender reassignment surgery on an individual claim basis. The Centers for Medicare & Medicaid Services (CMS) proposes to continue this practice and not issue a National Coverage Determination (NCD) at this time on gender reassignment surgery for Medicare beneficiaries with gender dysphoria.  Our review of the clinical evidence for gender reassignment surgery was inconclusive for the Medicare population at large.  The low number of clinical studies specifically about Medicare beneficiaries’ health outcomes for gender reassignment surgery and small sample sizes inhibited our ability to create clinical appropriateness criteria for cohorts of Medicare beneficiaries.

In the absence of a NCD, initial coverage determinations under section 1862(a)(1)(A) of the Social Security Act (the Act) and any other relevant statutory requirements will be made by the local Medicare Administrative Contractors (MACs) on an individual claim basis. 

While we are not issuing a NCD, CMS encourages robust clinical studies that will fill the evidence gaps and help inform the answer to the question posed in this proposed decision memorandum.  Based on the gaps identified in the clinical evidence, these studies should focus on which patients are most likely to achieve improved health outcomes with gender reassignment surgery, which types of surgery are most appropriate, and what types of physician criteria and care setting(s) are needed to ensure that patients achieve improved health outcomes.

We are requesting public comments on this proposed decision memorandum pursuant to section 1862(l)(3)(a) of the Act. We are specifically interested in public comments on the evidence we cited in this decision, comments containing any new evidence that has not been considered, and comments on whether a study could be developed that would support coverage with evidence development (CED), which would only cover gender reassignment surgery for beneficiaries who choose to participate in a clinical study.

Proposed Decision Memo

I. proposed decision.

Currently, the local Medicare Administrative Contractors (MACs) determine coverage of gender reassignment surgery on an individual claim basis. The Centers for Medicare & Medicaid Services (CMS) proposes to continue this practice and not issue a National Coverage Determination (NCD) at this time on gender reassignment surgery for Medicare beneficiaries with gender dysphoria. Our review of the clinical evidence for gender reassignment surgery was inconclusive for the Medicare population at large. The low number of clinical studies specifically about Medicare beneficiaries’ health outcomes for gender reassignment surgery and small sample sizes inhibited our ability to create clinical appropriateness criteria for cohorts of Medicare beneficiaries.

In the absence of a NCD, initial coverage determinations under section 1862(a)(1)(A) of the Social Security Act (the Act) and any other relevant statutory requirements will be made by the local Medicare Administrative Contractors (MACs) on an individual claim basis.

While we are not issuing a NCD, CMS encourages robust clinical studies that will fill the evidence gaps and help inform the answer to the question posed in this proposed decision memorandum. Based on the gaps identified in the clinical evidence, these studies should focus on which patients are most likely to achieve improved health outcomes with gender reassignment surgery, which types of surgery are most appropriate, and what types of physician criteria and care setting(s) are needed to ensure that patients achieve improved health outcomes.

II. Background

Below is a list of acronyms used throughout this document.

AHRQ - Agency for Healthcare Research and Quality AIDS - Acquired Immune Deficiency Syndrome ANOVA - Analysis of Variance APA - American Psychiatric Association APGAR - Adaptability, Partnership Growth, Affection, and Resolve test BIQ - Body Image Questionnaire BSRI - Bem Sex Role Inventory CCEI - Crown Crips Experimental Index CHIS - California Health Interview Survey CI - Confidence Interval CMS - Centers for Medicare & Medicaid Services DAB - Departmental Appeals Board DSM - Diagnostic and Statistical Manual of Mental Disorders EMBASE - Exerpta Medica dataBASE FBeK - Fragebogen zur Beurteilung des eigenen Korpers FDA - Food and Drug Administration FPI-R - Freiburg Personality Inventory FSFI - Female Sexual Function Index GAF - Global Assessment of Functioning GID - Gender Identity Disorder GIS - Gender Identity Trait Scale GRS - Gender Reassignment Surgery GSI - Global Severity Indices HADS - Hospital Anxiety Depression Scale HHS - U.S. Department of Health and Human Services HIV - Human Immunodeficiency Virus IIP - Inventory of Interpersonal Problems IOM - Institute of Medicine KHQ - King’s Health Questionnaire LGB - Lesbian, Gay, and Bisexual LGBT - Lesbian, Gay, Bisexual, and Transgender MAC - Medicare Administrative Contractor MMPI - Minnesota Multiphasic Personality Inventory NCA - National Coverage Analysis NCD - National Coverage Determination NICE - National Institute for Health Care Excellence NIH - National Institutes of Health NZHTA - New Zealand Health Technology Assessment PIT - Psychological Integration of Trans-sexuals QOL - Quality of Life S.D. - Standard Deviation SADS - Social Anxiety Depression Scale SCL-90R - Symptom Check List 90-Revised SDPE - Scale for Depersonalization Experiences SES - Self Esteem Scale SF - Short Form SMR - Standardized Mortality Ratio SOC – Standards of Care STAI-X1 - Spielberger State and Trait Anxiety Questionnaire STAI-X2 - Spielberger State and Trait Anxiety Questionnaire TSCS - Tennessee Self-Concept Scale U.S. - United States VAS - Visual Analog Scale WHOQOL-BREF - World Health Organization Quality of Life - Abbreviated version of the WHOQOL-100 WPATH - World Professional Association for Transgender Health

A.  Diagnostic Criteria

The criteria for gender dysphoria or spectrum of related conditions as defined by the American Psychiatric Association (APA) in the Diagnostic and Statistical Manual of Mental Disorders (DSM) has changed over time (See Appendix A).

Gender dysphoria (previously known as gender identity disorder) is a classification used to describe persons who experience significant discontent with their biological sex and/or gender assigned at birth. Therapeutic options for gender dysphoria include behavioral and psychotherapies, hormonal treatments, and a number of surgeries used for gender reassignment. This proposed decision is only focusing on gender reassignment surgery.

B.  Prevalence of Gender Dysphoria

Prevalence of gender dysphoria estimates have been reported by several investigators.

For estimates of transgender individuals in the U.S., we looked at several studies.

The Massachusetts Behavior Risk Factor Surveillance Survey (via telephone) (2007 and 2009) identified 0.5% individuals as transgender (Conron et al., 2012).

Derivative data obtained from the 2004 California Lesbian Gay Bisexual and Transgender (LGBT) Tobacco Survey (via telephone) and the 2009 California Health Interview Survey (CHIS) (via telephone) suggested the LGB population constitutes 3.2% of the California population and that transgender subjects constitute approximately 2% of the California LGBT population and 0.06% of the overall California population (Bye et al., 2005; CHIS 2009; Gates, 2011).

In a recent review of Medicare claims data, CMS estimated that in calendar year 2013 there were at least 4,098 transgender beneficiaries (less than 1% of the Medicare population) who utilized services paid for by Medicare, of which 90% had confirmatory diagnosis, billing codes, or evidence of a hormone therapy prescription. The Medicare transgender population is racially and ethnically diverse (e.g., 74% White, 15% African American) and spans the entire country. The following states have at least 100 transgender beneficiaries: California, Florida, Georgia, Illinois, Massachusetts, Michigan, Minnesota, New York, Pennsylvania, Ohio, Texas, Washington, and Wisconsin. Nearly 80% of transgender beneficiaries are under age 65, including approximately 23% ages 45-54. Of note, for the transgender population under age 65, the most prevalent chronic conditions were depression, major depressive affective disorder, and anxiety. Approximately 75% of transgender Medicare beneficiaries have been affected by depression, which is a disproportionately high amount compared to the Medicare population as a whole with 14% of Medicare fee-for-service beneficiaries suffering from the disease (CMS, Chronic Conditions Among Medicare Beneficiaries , 2012 at https://www.cms.gov/research-statistics-data-and-systems/statistics-trends-and-reports/chronic-conditions/downloads/2012chartbook.pdf). Based on the claims data, about 48% of transgender beneficiaries use hormone therapy, which are coverable under the Medicare Part D prescription drug benefit program (CMS Office of Minority Health (2015, June). New Directions in CMS Disparities Research: Sexual Orientation & Gender Identity. Paper presented at the Academy Health Annual Research Meeting, Minneapolis, Minnesota and Gay and Lesbian Medical Association Meeting, Portland, Oregon).

For international comparison purposes, recent estimates of transgender populations in other countries are similar to those in the United States. New Zealand researchers, using passport data, reported a prevalence of 0.0275% for male-to-female adults and 0.0044% female-to-male adults (6:1 ratio) (Veale, 2008). Researchers from a centers of transgender treatment and reassignment surgery in Belgium conducted a survey of regional plastic surgeons and reported a prevalence of 0.008% male-to-female and 0.003% female-to-male (ratio 2.7:1) surgically reassigned transsexuals in Belgium (De Cuypere et al., 2007). Swedish researchers, using national mandatory reporting data on those requesting reassignment surgery, reported secular changes over time in that the number of completed reassignment surgeries per application increased markedly in the 1990s; the male-to-female/female-to-male sex ratio changed from 1:1 to 2:1; the age of male-to-female and female-to-male applicants was initially similar, but increased by eight years for male-to-female applicants; and the proportion of foreign born applicants increased (Olsson, Moller 2003).

C.  Interventions

Table 1 provides information about some of the types of therapeutic interventions for transgender individuals.

Table 1. Types of Therapeutic Intervention (May Not be Exhaustive)

III. History of Medicare Coverage

CMS does not currently have an NCD on gender reassignment surgery.

A.  Current Request

On December 3, 2015, CMS accepted a formal complete request from a beneficiary to initiate a national coverage analysis (NCA) for gender reassignment surgery.

CMS opened this National Coverage Analysis (NCA) to thoroughly review the evidence to determine whether or not gender reassignment surgery may be covered nationally under the Medicare program.

B.  Benefit Category

Medicare is a defined benefit program. For an item or service to be covered by the Medicare program, it must fall within one of the statutorily defined benefit categories as outlined in the Act. For gender reassignment surgery, the following are statutes are applicable to coverage:

Under §1812 (Scope of Part A) Under §1832 (Scope of Part B) Under §1861(s) (Definition of Medical and Other Health Services) Under §1861(s)(1) (Physicians’ Services) This may not be an exhaustive list of all applicable Medicare benefit categories for this item or service.

IV. Timeline of Recent Activities

Table 2: Timeline of Medicare Coverage Policy Actions for Gender Reassignment Surgery

V. FDA Status

Surgical procedures per se are not subject to the Food and Drug Administration’s (FDA) approval.

Inflatable penile prosthetic devices, rigid penile implants, testicular prosthetic implants, and breast implants have been approved/cleared by the FDA.

VI. General Methodological Principles

In general, when making national coverage determinations, CMS evaluates relevant clinical evidence to determine whether or not the evidence is of sufficient quality to support a finding that an item or service is reasonable and necessary for the diagnosis or treatment of illness or injury or to improve the functioning of a malformed body member. (§ 1862 (a)(1)(A)). The evidence may consist of external technology assessments, internal review of published and unpublished studies, recommendations from the Medicare Evidence Development & Coverage Advisory Committee (MEDCAC), evidence-based guidelines, professional society position statements, expert opinion, and public comments.

The overall objective for the critical appraisal of the evidence is to determine to what degree we are confident that: 1) specific clinical question relevant to the coverage request can be answered conclusively; and 2) the extent to which we are confident that the intervention will improve health outcomes for patients.

A detailed account of the methodological principles of study design the agency staff utilizes to assess the relevant literature on a therapeutic or diagnostic item or service for specific conditions can be found in Appendix B. In general, features of clinical studies that improve quality and decrease bias include the selection of a clinically relevant cohort, the consistent use of a single good reference standard, blinding of readers of the index test, and reference test results.

Public commenters sometimes cite the published clinical evidence and provide CMS with useful information. Public comments that provide information based on unpublished evidence, such as the results of individual practitioners or patients, are less rigorous and, therefore, less useful for making a coverage determination. CMS uses the initial comment period to inform the public of its proposed decision. CMS responds in detail to the public comments that were received in response to the proposed decision when it issues the final decision memorandum.

VII. Evidence

A.  Introduction

Below is a summary of the evidence we considered during our review, primarily articles about clinical trials published in peer-reviewed medical journals. We considered articles cited by the requestor, in public comments, as well as those found by a CMS literature review. Citations are detailed below.

B.  Literature Search Methods

CMS staff extensively searched for primary studies evaluating therapeutic interventions for gender dysphoria. There was particular emphasis on the various surgical interventions, but other treatments including hormone therapy, psychotherapy, psychiatric treatment, ancillary reproductive and gender modifying services, and post-operative surveillance services for natal sex organs were also included because of their serial and sometimes overlapping roles in patient management. The emphasis focused less on specific surgical techniques and more on functional outcomes unless specific techniques altered those types of outcomes.

The reviewed evidence included articles obtained by searching literature databases and technology review databases from PubMed (1965 to current date), EMBASE, the Agency for Healthcare Research and Quality (AHRQ), the Blue Cross/Blue Shield Technology Evaluation Center, the Cochrane Collection, the Institute of Medicine, and the National Institute for Health and Care Excellence (NICE) as well as the source material for commentary, guidelines, and formal evidence-based documents published by professional societies. Systematic reviews were used to help locate some of the more obscure publications and abstracts.

Keywords used in the search included: Trans-sexual, transgender, gender identity disorder (syndrome), gender dysphoria and/or hormone therapy, gender surgery, genital surgery, gender reassignment (surgery), sex reassignment (surgery) AND/OR quality of life, satisfaction-regret, psychological function (diagnosis of mood disorders, psychopathology, personality disorders), employment status, relationships, other social function, suicide (attempts), mortality, sexual function, urinary function, and adverse events-reoperations. After the identification of germane publications, CMS also conducted searches on the specific psychometric instruments used by investigators.

Psychometric instruments are scientific tools used to measure individuals' mental capabilities and behavioral style. They are usually in the form of questionnaires that numerically capture responses. These tools are used to create a psychological profile that can address questions about a person’s knowledge, abilities, attitudes and personality traits. In the evaluation of patients with gender dysphoria, it is important that both validity and reliability be assured in the construction of the tool (validity refers to how well the tool actually measures what it was designed to measure, or how well it reflects the reality it claims to represent, while reliability refers to how accurately results of the tool would be replicated in a second identical piece of research). That is because when evaluating patients with this condition most of the variables of interest (e.g., satisfaction, anxiety, depression) are latent in nature (not directly observed but are rather inferred) and difficult to quantify objectively.

Studies with robust study designs and larger, defined patient populations assessed with objective endpoints or validated test instruments were given greater weight than small, pilot studies. Reduced consideration was given to studies that were underpowered for the assessment of differences or changes known to be clinically important. Studies with fewer than 30 patients were reviewed and delineated, but excluded from the major analytic framework. Oral presentations, unpublished white papers, and case reports were excluded. Publications in languages other than English were excluded.

Included studies were limited to those with adult subjects. Review and discussion of the management of children and adolescents with the additional considerations of induced pubertal delay are outside the scope of this NCD. In cases where the same population was studied for multiple reasons or where the patient population was expanded over time, the latest and/or most germane sections of the publications were analyzed. The excluded duplicative publications are delineated.

CMS also searched Clinicaltrials.gov to identify relevant clinical trials. CMS looked at trial status including early termination, completed, and ongoing with sponsor update, and ongoing with estimated date of completion. Publications on completed trials were sought. The CMS internal search was limited to articles published prior to March 21, 2016. CMS reviewed results of clinical trials involving adult human subjects; to reports of prospective (e.g., blinded, non-blinded, cross sectional), partially prospective, retrospective longitudinal studies randomized meeting certain criteria.

C.  Discussion of Evidence

The development of an assessment in support of Medicare coverage determinations is based on the same general question for almost all national coverage analyses (NCAs): "Is the evidence sufficient to conclude that the application of the item or service under study will improve health outcomes for Medicare patients?" CMS is interested in answering the following question:

Is there sufficient evidence to conclude that gender reassignment surgery improves health outcomes for Medicare beneficiaries with gender dysphoria?

The evidence reviewed is directed towards answering this question.

1.  Internal Technology Assessment

When looking at the studies evaluating gender reassignment surgery for patients with gender dysphoria, we found an array of disparate research designs. Most of the studies were conducted in Europe. Only six studies took place in the U.S. (Ainsworth, Spiegel, 2010; Beatrice, 1985; Meyer, Reter, 1979; Newfield et al., 2006; Lawrence, 2006; Leinung et al., 2013). Most of the studies that evaluated gender dysphoria were descriptive in nature; few made inferences which may be applicable to the Medicare population.

CMS conducted an extensive literature search on gender reassignment related surgical procedures and on facets of gender dysphoria that provide context for this analysis. The latter includes medical and environmental conditions. CMS also explored the relative roles that psychological support, mental health care, cross-sex hormonal therapy, and the various gender reassignment related surgical procedures played in health outcomes.

CMS identified numerous publications related to gender reassignment surgery. A large number of these were case reports, case series with or without descriptive statistics, or studies with population sizes too small to conduct standard parametric statistical analyses. Others addressed issues of surgical technique.

CMS identified and described 36 publications on gender reassignment surgery that included health outcomes. Because the various investigators at a site sometimes conducted serial studies on ever-enlarging cohort populations, studied sub-populations, studied different outcomes, or used different tools to study the same outcomes, not all study populations were unique. To reduce bias from over-lapping populations, only the latest or most germane publication(s) were described. Subsumed publications were delineated.

Of these 36 publications, two publications used different assessment tools on the same population, and, so for the purposes of evaluation, were classified as 1 study (Udeze et al., 2008; Megeri, Khoosal, 2007). For another publication, the complete manuscript could not be located despite an exhaustive search by the Library of Medicine (Barrett, 1998). This precluded adequate review, thus, it was not included. A total of 33 studies were reviewed (See Figure 1). Appendices C, D, and F include more detail of each study.

The publications covered a time span from 1979 to 2015. Over half of the studies were published after 2005.

Figure 1. Studies of Gender Reassignment Surgery (GRS)

ANOVA=Analysis of Variance Normative=Psychometric Tests with known normative for large populations

The studies in Figure 1 are categorized into 3 groups. The first group, depicted by the colored boxes (red, blue, and green), had explicit controls. There was a single randomized study. The remainder in the first group were observational studies. These were subdivided into longitudinal studies and cross-sectional studies. The second group, depicted by black boxes (starting with the surgery only populations box) consisted of surgical series. The third group, depicted by black boxes (starting with mixed population), was composed of mixed populations of patients not stratified by treatment and which included a spectrum of therapeutic interventions.

When looking at the totality of studies, they fell into the following research design groups:

a. Prospective, non-blinded, observational, cross-sectional studies with no concurrent controls

Ainsworth TA, Spiegel JH. Quality of life of individuals with and without facial feminization surgery or gender reassignment surgery. Qual Life Res. 2010 Sep;19(7):1019-24.

Ainsworth and Spiegel conducted a prospective, observational study using a cross-sectional design and a partially self-designed survey tool. The blind status is unknown. Treatment types served as the basis for controls.

The investigators, head and neck surgeons who provided facial feminization services, assessed perception of appearance and quality of life in male-to-female subjects with self-reported gender dysphoria. Patients could have received no therapeutic intervention, hormone therapy, reassignment surgery, and/or facial feminization surgery and an unrestricted length of transition. (Transition refers to the time when a transgender person begins to live as the gender with which they identify rather than the gender assigned at birth.) Criteria for the various types of interventions were not available because of the survey design of the study. Patients were recruited via website or at a 2007 health conference. Pre-specified controls to eliminate duplicate responders were not provided. The investigators employed a self-designed Likert-style facial feminization outcomes evaluation questionnaire and a “San Francisco 36” health questionnaire. No citations were provided for the latter. It appears to be the Short-form (SF) 36-version 2. Changes or differences considered to be biologically significant were not pre-specified. Power corrections for multiple comparisons were not provided.

The investigators reported that there were 247 participants. (The numbers of incomplete questionnaires was not reported.) Of the 247 participants, 25 (10.1%) received only primary sex trait reassignment surgery, 28 (11.3%) received facial surgery without primary sex trait reassignment surgery, 47 (19.0%) received both facial and primary sex trait reassignment surgery, and 147 (59.5%) received neither facial nor reassignment surgery. The mean age for each of these cohorts was: 50 (no standard deviation [S.D.]) only reassignment surgery, 51 (no S.D.) only facial surgery, 49 (no S.D.) both types of surgery, and 46 (no S.D.) (neither surgery). Of the surgical cohorts: 100% of those who had undergone primary sex trait reassignment surgery alone used hormone therapy, 86% of those who had undergone facial feminization used hormone therapy, and 98% of those who had undergone both primary sex trait reassignment surgery and facial feminization used hormone therapy. In contrast to the surgical cohorts, 66% of the “no surgery” cohort used hormonal therapy, and a large proportion (27%) had been in transition for less than 1 year.

The investigators reported higher scores on the facial outcomes evaluation in those who had undergone facial feminization. Scores of the surgical cohorts for the presumptive SF-36 comprehensive mental health domain did not differ from the general U.S. female population. Scores of the “no surgery” cohort for the comprehensive mental health domain were statistically lower than those of the general U.S. female population, but within 1 standard deviation of the normative mean. Mean scores of all the gender dysphoric cohorts for the comprehensive physical domain were statistically higher than those of the general female U.S. population, but were well within 1 standard deviation of the normative mean. Analyses of inter-cohort differences for the SF-36 results were not conducted. Although the investigators commented on the potential disproportionate impact of hormone therapy on outcomes and differences in the time in “transition”, they did not conduct any statistical analyses to correct for putative confounding variables.

Motmans J , Meier P, Ponnet K, T'Sjoen G. Female and male transgender quality of life: socioeconomic and medical differences. J Sex Med. 2012 Mar;9(3):743-50. Epub 2011 Dec 21.

Motmans et al., conducted a prospective, non-blinded, observational study using a cross-sectional design and a non-specific quality-of-life tool. No concurrent controls were used in this study. Quality of life in this Dutch-speaking population was assessed using the Dutch version of a SF-36 (normative data was used). Participants included subjects who were living in accordance with the preferred gender and who were from a single, unspecified, Belgian university specialty clinic. The Dutch version of the SF-36 questionnaire along with its normative data were used. Variables explored included employment, pension status, ability to work, being involved in a relationship. Also explored, was surgical reassignment surgery and the types of surgical interventions. Intragroup comparisons by transgender category were conducted, and the relationships between variables were assessed by analysis of variance (ANOVA) and correlations.

The age of the entire cohort (n=140) was 39.89±10.21 (female-to-male: 37.03±8.51; male-to-female: 42.26±10.39). Results of the analysis revealed that not all female-to-male patients underwent surgical reassignment surgery and, of those who did, not all underwent complete surgical reassignment. The numbers of female-to-male surgical interventions were: mastectomy 55, hysterectomy 55, metadoiplasty 8 (with 5 of these later having phalloplasty), phalloplasty 40, and implantation of a prosthetic erectile device 20. The frequencies of various male-to-female surgical interventions were: vaginoplasty 48, breast augmentation 39, thyroid cartilage reduction 17, facial feminization 14, and hair transplantation 3.

The final number of subjects with SF-36 scores was 103 (49 [47.6%] female-to-male; 54 [52.4%] male-to-female; ratio 1:1.1). For this measure, the scores for the vitality and mental health domains for the final female-to-male cohort (n= 49 and not limited to those having undergone some element of reassignment surgery) were statistically lower: 60.61±18.16 versus 71.9±18.31 and 71.51±16.40 versus 79.3±16.4 respectively. Scores were not different from the normative data for Dutch women: vitality: 64.3±19.7 or mental health 73.7±18.2. None of the domains of the SF-36 for the final male-to-female cohort (n=54 and not limited to those having undergone some element of reassignment surgery) were statistically different from the normative data for Dutch women.

Analysis of variance indicated that quality-of-life as measured by the SF-36 did not differ by whether female-to-male patients had undergone genital surgery (metadoidoplasty or phalloplasty) or not. Also, ANOVA indicated that quality-of-life as measured by the SF-36 did not differ by whether male-to-female patients had undergone either breast augmentation or genital surgery (vaginoplasty) or not.

Whether there is overlap with the Ghent populations studied by Heylens et al., Weyers et al., or Wierckx et al. is unknown.

Weyers S, Elaut E, De Sutter P, Gerris J, T'Sjoen G, Heylens G, De Cuypere G, Verstraelen H. Long-term assessment of the physical, mental, and sexual health among transsexual women. J Sex Med. 2009 Mar;6(3):752-60. Epub 2008 Nov 17.

Weyers at al. 2009 conducted a prospective, non-blinded, observational study using a cross-sectional design and several measurement instruments including a non-specific quality of life tool and a semi-specific quality of life tool (using normative data) along with 2 self-designed tools.

The investigators assessed general quality of life, sexual function, and body image from the prior 4 weeks in Dutch-speaking male-to-female patients with gender dysphoria who attended a single-center, specialized, comprehensive care university clinic. Investigators used the Dutch version of the SF-36 and results were compared to normative data from Dutch women and U.S. women. The 19 items of the Dutch version of the Female Sexual Function Index (FSFI) were used to measure sexual desire, function, and satisfaction. A self-designed 7 question visual analog scale (VAS) was used to measure satisfaction with gender related body traits and appearance perception by self and others. A self-designed survey measured a broad variety of questions regarding personal medical history, familial medical history, relationships, importance of sex, sexual orientation, gynecologic care, level of regret, and other health concerns. For this study, hormone levels were also obtained.

The study consisted of 50 participants. Analysis of the data revealed that the patient’s average age was 43.1 ±10.4 years, and all of the patients had vaginoplasty. This same population also had undergone additional feminization surgical procedures (breast augmentation 96.0%, facial feminization 36.0%, vocal cord surgery 40.0%, and cricoid cartilage reduction 30.0%). A total of two (4.0%) participants reported “sometimes” regretting reassignment surgery and 23 (46.0%) were not in a relationship. For the cohort, estradiol, testosterone, and sex hormone binding globulin levels were in the expected range for the reassigned gender. The SF-36 survey revealed that the subscale scores of the participants did not differ substantively from those of Dutch and U.S. women. VAS scores of body image were highest for self-image, appearance to others, breasts, and vulva/vagina (approximately 7 to 8 of 10). Scores were lowest for body hair, facial hair, and voice characteristics (approximately 6 to 7 of 10).

The total FSFI score was 16.95±10.04 out of a maximal 36. The FSFI scores averaged 2.8 (6 point maximum): satisfaction 3.46±1.57, desire 3.12+1.47, arousal 2.95±2.17, lubrication 2.39±2.29, orgasm 2.82±2.29, and pain 2.21±2.46. Though these numbers were reported in the study, data on test population controls were not provided. VAS scores of body image were highest for self-image, appearance to others, breasts, and vulva/vagina (approximately 7 to 8 of 10). Scores were lowest for body hair, facial hair, and voice characteristics (approximately 6 to 7 of 10).

A post hoc exploration of the data was performed that revealed the following: perceived improvement in general health status was greater in the subset that had undergone reassignment surgery within the last year; sexual orientation impacted the likelihood of being in a relationship; SF-36 scores for vitality, social functioning, and mental health were nominally better for those in relationships, but that overall SF-36 scores did not differ by relationship status; sexual orientation and being in a relationship impacted FSFI scores; and reported sexual function was higher in those with higher satisfaction with regards to their appearance.

Wierckx K, Van Caenegem E, Elaut E, Dedecker D, Van de Peer F, Toye K, Weyers S, Hoebeke P, Monstrey S, De Cuypere G, T'Sjoen G. Quality of life and sexual health after sex reassignment surgery in transsexual men. J Sex Med. 2011 Dec;8(12):3379-88. Epub 2011 Jun 23.

Wierckx at al. conducted a prospective, non-blinded, observational study using a cross-sectional design and several measurement instruments (a non-specific quality of life tool with reported normative data along with 3 self-designed tools). The investigators assessed general quality of life, sexual relationships, and surgical complications in Dutch-speaking female-to-male patients with gender dysphoria who attended a single-center, specialized, comprehensive care, university clinic. Investigators used the Dutch version of the SF-36 with 36 questions, 8 subscales, and 2 domains evaluating physical and mental health. Results were compared to normative data from Dutch women and Dutch men. Self -designed questionnaires to evaluate aspects of medical history, sexual functioning (there were separate versions for those with and without partners), and surgical results were also used. The Likert-style format was used for many of the questions.

A total of 79 female-to-male patients with gender dysphoria had undergone reassignment surgery were contacted; however, ultimately, 47 (59.5%) chose to participate. Three additional patients were recruited by other patients. One of the 50 participants was later excluded for undergoing reassignment surgery within the 1 year window. The age of patients was: 30±8.2 years (range 16 to 49) at the time of reassignment surgery and 37.1 ±8.2 years (range 22 to 54) at the time of follow-up. The time since hysterectomy, oopherectomy, and mastectomy was 8 years (range 2 to 22). The patient population had undergone additional surgical procedures: metaidoiplasty (n=9; 18.4%), phalloplasty (n=8 after metaidoiplasty, 38 directly; 93.9% total), and implantation of erectile prosthetic device (n=32; 65.3%). All had started hormonal therapy at least 2 years prior to surgery and continued to use androgens.

The SF-36 survey was completed by 47 (95.9%) participants. The “Vitality” and the “Mental Health” scales were lower than the Dutch male population: 62.1±20.7 versus 71.9±18.3 and 72.6±19.2 versus 79.3±16.4 respectively. These subscale scores were equivalent to the mean scores of the Dutch women.

None of the participants were dissatisfied with their hysterectomy-oopherectomy procedures; 4.1% were dissatisfied with their mastectomies because of extensive scarring; and 2.2% were dissatisfied with their phalloplasties. Of the participants, 17.9% were dissatisfied with the implantation of an erectile prosthetic device; 25 (51.0%) reported at least one post-operative complication associated with phalloplasty (e.g., infection, urethrostenosis, or fistula formation); 16 (50.0% of the 32 with an erectile prosthetic device) reported at least one post-operative complication associated with implantation of an erectile prosthetic (e.g., infection, leakage, incorrect positioning, or lack of function).

A total of 18 (36.7%) participants were not in a relationship; 12.2% reported the inability to achieve orgasm with self-stimulation less than half the time; 12.2% did not respond to the question. Of those with participants with partners, 28.5% reported the inability to achieve orgasm with intercourse less than half the time and 9.7% did not respond to this question. Also, 61.3% of those with partners reported (a) no sexual activities (19.4%) or (b) activities once or twice monthly (41.9%), and there were 12.9% who declined to answer.

Post hoc assessments suggested that being in relationship or having undergone phalloplasty did not impact the scores of the SF-36 domains. Also this assessment suggested that for patients in a relationship, sexual satisfaction was related to “Vitality” scores. Finally this assessment suggested a relationship between sexual satisfaction and more frequent orgasm and pleasure with the partner.

Salvador J, Massuda R, Andreazza T, Koff WJ, Silveira E, Kreische F, de Souza L, de Oliveira MH, Rosito T, Fernandes BS, Lobato MI. Minimum 2-year follow up of sex reassignment surgery in Brazilian male-to-female transsexuals. Psychiatry Clin Neurosci. 2012 Jun;66(4):371-2. PMID: 22624747.

Salvador et al. conducted a prospective, non-blinded, observational study using a cross-sectional design (albeit over an extended time interval) and a self-designed quality of life tool. The investigators assessed regret, sexual function, partnerships, and family relationships in patients who had undergone gender reassignment surgery at least 24 months prior.

Out of the 243 enrolled in the clinic over a 10 year interval, 52 patients agreed to participate in the study. The age at follow-up was 36.3±8.9 (range 15-58) years with the time to follow-up being 3.8±1.7 (2-7) years. A total of 46 participants reported pleasurable neo-vaginal sex and post-surgical improvement in the quality of their sexual experience. The quality of sexual intercourse was rated as satisfactory to excellent, average, unsatisfactory, or not applicable in the absence of sexual contact by 84.6%, 9.6%, 1.9%, and 3.8% respectively. Of the participants, 78.8% reported greater ease in initiating and maintaining relationships; 65.4% reported having a partner; 67.3% reported increased frequency of intercourse; 36.8% reported improved familial relationships. No patient reported regret over reassignment surgery. The authors did not provide information about incomplete questionnaires.

Blanchard R, Steiner BW, Clemmensen LH. Gender dysphoria, gender reorientation, and the clinical management of transsexualism. J Consult Clin Psychol. 1985 Jun;53(3):295-304.

Blanchard et al. conducted a prospective, non-blinded, cross-sectional study using a self-designed questionnaire and a non-specific psychological symptom assessment with normative data. The investigators assessed social adjustment and psychopathology in patients with gender dysphoria and who were at least 1 year post gender reassignment surgery. Reassignment surgery was defined as either vaginoplasty or mastectomy/construction of male chest contour with or without nipple transplants, but did not preclude additional procedures. Partner preference was determined using the Modified Androphilia-Gynephilia Index, and the nature and extent of any psychopathology was determined with the Symptom Check List 90-Revised (SCL-90R).

Of the 294 patients (111 natal females and 183 natal males, ratio: 1:1.65) initially evaluated, 79 patients participated in the study (38 female-to-male; 32 male-to-female with male partner preference; 9 male-to-female with female partner preference). The respective mean ages for these 3 groups were 32.6, 33.2, and 47.7 years with the last group being older statistically (p=0.01). Additional surgeries in female-to-male patients included: oophorectomy/hysterectomy 92.1% and phalloplasty 7.9%. Additional procedures in male-to-female patients with male partner preference included facial hair electrolysis 62.5% and breast implantation 53.1%. Additional procedures in male-to-female patients with female partner preference included facial hair electrolysis 100% and breast implantation 33.3%. The time between reassignment surgery and questionnaire completion did not differ by group.

Psychopathology as measured by the Global Severity Index of the SCL-90R was absent in all 3 patient groups. Interpretation did not differ by the sex of the normative cohort.

Of participants, 63.2% of female-to-male patients cohabitated with partners of their natal gender. 46.9% of male-to-female patients with male partner preference cohabitated with partners of their natal gender; 93.7% reported that they would definitely undergo reassignment surgery again. The remaining 6.3% (1 female-to-male; 1 male-to-female with male partner preference; 3 male-to-female with female partner preference) indicated that they probably would undertake the surgery again. Post hoc analysis suggested that the more ambivalent responders had more recently undergone surgery. Of responders, 98.7% indicated that they preferred life in the reassigned gender. The one ambivalent subject was a skilled and well compensated tradesperson who was unable to return to work in her male dominated occupation.

Tsoi WF. Follow-up study of transsexuals after sex-reassignment surgery. Singapore Med J. 1993 Dec;34(6):515-7.

Tsoi conducted a prospective, non-blinded, observational study using a cross-sectional design and a self-designed quality of life tool. The investigators assessed overall life satisfaction, employment, partner status, and sexual function in gender-reassigned persons who had undergone gender reassignment surgery between 1972 and 1988 inclusive and who were approximately 2 to 5 years post-surgery. Acceptance criteria for surgery included good physical health, good mental health, absence of heterosexual tendencies, willingness to undergo hormonal therapy for ≥6 months, and willingness to function in the life of the desired gender for ≥6 months. Tsoi also undertook retrospective identification of variables that could predict outcomes.

The size of the pool of available patients was not identified. Of the 81 participants, 36 were female-to-male (44.4%) and 45 were male-to-female (55.6%) (ratio 1:1.25).

The mean ages at the time of the initial visit and operation were: female-to-male 25.4±4.4 (range 14-36) and 27.4 ±4.0; (range 14-36); male-to-female 22.9±4.6 (range 14-36) and 24.7±4.3 (14-36) years respectively. Of all participants, 14.8% were under age 20 at the time of the initial visit. All were at least 20 at the time of gender reassignment surgery. The reported age of onset was 8.6 years for female-to-male patients and 8.7 years for male-to-female patients.

All participants reported dressing without difficulty in the reassigned gender; 95% of patients reported good or satisfactory adjustment in employment and income status; 72% reported good or satisfactory adjustment in relationships with partners. Although the quality of life tool was self-designed, 81% reported good or satisfactory adjustment to their new gender, and 63% reported good or acceptable satisfaction with sexual activity. Of the female-to-male patients, 39% reported good or acceptable satisfaction with sex organ function in comparison to 91% of male-to-female patients (p<0.001). (The author reported that a fully functioning neo-phallus could not be constructed at the time.) The age of non-intercourse sexual activity was the only predictor of an improved outcome.

Gómez-Gil E, Zubiaurre-Elorza L, Esteva I, Guillamon A, Godás T, Cruz Almaraz M, Halperin I, Salamero M. Hormone-treated transsexuals report less social distress, anxiety and depression. Psychoneuroendocrinology. 2012 May;37(5):662-70. Epub 2011 Sep 19.

Gómez-Gil et al. conducted a prospective, non-blinded observational study using a cross-sectional design and non-specific psychiatric distress tools in Spain. The investigators assessed anxiety and depression in patients with gender dysphoria who attended a single-center specialty clinic with comprehensive endocrine, psychological, psychiatric, and surgical care. The clinic employed World Professional Association for Transgender Health (WPATH) guidelines. Patients were required to have met diagnostic criteria during evaluations by 2 experts. Investigators used the Hospital Anxiety and Depression Scale (HADS) and the Social Anxiety and Distress Scale (SADS) instruments. The SADS total score ranges from 0 to 28, with higher scores indicative of more anxiety. English language normative values are 9.1±8.0. HAD-anxiety and HAD-depression total score ranges from 0 to 21, with higher scores indicative of more pathology. Scores less than 8 are normal. ANOVA was used to explore effects of hormone and surgical treatment.

Of the 200 consecutively selected patients recruited, 187 (93.5% of recruited) were included in the final study population. Of the final study population, 74 (39.6%) were female-to-male patients; 113 (60.4%) were male-to-female patients (ratio 1:1.5); and 120 (64.2%) were using hormones. Of those using hormones, 36 (30.0%) were female-to-male; 84 (70.0%) were male-to-female (ratio 1:2.3). The mean age was 29.87±9.15 (range 15-61). The current age of patients using hormones was 33.6±9.1 (n=120) and older than the age of patients without hormone treatment (25.9±7.5) (p=0.001). The age at hormone initiation, however, was 24.6±8.1.

Of those who had undergone reassignment surgery, 29 (36.7%) were female-to-male; 50 (63.3%) were male-to-female; ratio 1:1.7. The number of patients not on hormones and who had undergone at least 1 gender-related surgical procedure (genital or non-genital) was small (n=2). The number of female-to-male patients on hormones who had undergone such surgery (mastectomy, hysterectomy, or phalloplasty) was 28 (77.8%). The number of male-to-female patients on hormones who had undergone such surgery (mammoplasty, facial feminization, buttock feminization, vaginoplasty, orchiectomy, and vocal feminization (thyroid chondroplasty) was 49 (58.3%).

Analysis of the data revealed that although the mean scores HAD-Anxiety, HAD-Depression, and SADS were statistically lower (better) in those on hormone therapy than in those not on hormone therapy, the mean scores for HAD-Depression and SADS were in the normal range for gender dysphoric patients not using hormones. The HAD-Anxiety score was borderline elevated and consistent with a possible mood disorder in patients not using hormones. The mean scores for HAD-Anxiety, HAD-Depression, and SADS were in the normal range for gender dysphoric patients using hormones. ANOVA revealed that results did not differ by whether the patient had undergone a gender related surgical procedure or not.

Gómez-Gil E, Zubiaurre-Elorza L, de Antonio I, Guillamon A, Salamero M. Determinants of quality of life in Spanish transsexuals attending a gender unit before genital sex reassignment surgery. Qual Life Res. 2014 Mar;23(2):669-76. Epub 2013 Aug 13.

Gómez-Gil et al. conducted a prospective, non-blinded observational study using a non-specific quality of life tool. There were no formal controls for this mixed population ± non-genital reassignment surgery. The investigators assessed quality of life in the context of culture in patients with gender dysphoria who were from a single-center, specialty and gender identity clinic. The clinic used WPATH guidelines. Patients were required to have met diagnostic criteria during evaluations by both a psychologist and psychiatrist. Patients could have undergone non-genital surgeries, but NOT genital reassignment surgeries (e.g., orchiectomy, vaginoplasty, or phalloplasty).

The Spanish version of the World Health Organization Quality of Life-Abbreviated version of the WHOQOL-100 (WHOQOL-BREF) was used to evaluate quality-of-life, which has 4 domains (environmental, physical, psychological, and social) and 2 general questions. Family dynamics were assessed with the Spanish version of the Family Adaptability, Partnership Growth, Affection, and Resolve (APGAR) test. Regression analysis was used to explore effects of surgical treatment.

Of the 277 patients recruited, 260 (93.9%) agreed to participate. Of this number, 193 were included in the study (the mean age of this group was 31.2±9.9 (range 16-67). Of these, 74 (38.3%) were female-to-male patients; 119 (61.7%) were male-to- female patients; ratio1:1.6. 120 (62.2%) were on hormone therapy; 29 (39.2%) of female-to-male patients had undergone at least 1 non-genital, surgical procedure (hysterectomy n=19 (25.7%); mastectomy n=29 (39.2%)); 51 (42.9%) of male-to-female patients had undergone at least 1 non-genital surgical procedure with mammoplasty augmentation being the most common procedure, n=47 (39.5%), followed by facial feminization, n=11 (9.2%), buttocks feminization, n=9 (7.6%), and vocal feminization (thyroid chondroplasty), n=2 (1.7%).

WHOQOL-BREF domain scores for gender dysphoric patients with and without non-genital surgery were: “Environmental” 58.81±14.89 (range 12.50-96.88), “Physical” 63.51±17.79 (range 14.29-100), “Psychological” 56.09+16.27 (range 16.67-56.09), “Social” 60.35±21.88 (range 8.33-100), and “Global QOL and Health” 55.44+27.18 (range 0-100). The mean APGAR family score was 7.23±2.86 (range 0-10).

Regression analysis, which was used to assess the relative importance of various factors to WHOQOL-BREF domains and general questions, revealed that family support was an important element for all 4 domains and the general health and quality-of-life questions. Hormone therapy was an important element for the general questions and for all of the domains except “Environmental.” Having undergone non-genital reassignment surgery, like age, educational levels, and partnership status, did not impact domain and general question results related to quality of life.

Mate-Kole C, Freschi M, Robin A. Aspects of psychiatric symptoms at different stages in the treatment of transsexualism. Br J Psychiatry. 1988 Apr;152:550-3.

Mate-Kole at al. conducted a prospective non-blinded, observational study using a cross-sectional design and 2 psychological tests (1 with some normative data). Concurrent controls were used in this study design. The investigators assessed neuroticism and sex role in natal males with gender dysphoria. Patients at various stages of management, (i.e., under evaluation, using cross-sex hormones, or post reassignment surgery [6 months to 2 years]) were matched by age of cross-dressing onset, childhood neuroticism, personal psychiatric history, and family psychiatric history. Both a psychologist and psychiatrist conducted assessments. The instruments used were the Crown Crisp Experiential Index (CCEI) for psychoneurotic symptoms and the Bem Sex Role Inventory. ANOVA was used to identify differences between the three treatment cohorts.

For each cohort, investigators recruited 50 male-to-female patients. The mean ages of the three cohorts were as follows: undergoing evaluation: mean age 34 years; wait-listed: mean age 35 years; and post-operative: mean age 37 years. Of the groups under evaluation or postsurgical, 16% (8 each) were unemployed; 8% of the waited listed patients were unemployed. For the cohorts, 22% of those under evaluation, 24% of those on hormone treatment only, and 30% of those post-surgery had prior psychiatric histories, and 24%, 24%, and 14% of the same respective cohorts had a history of attempted suicide. More than 30% of patients in each cohort had a first degree relative with a history of psychiatric disease.

The scores for the individual CCEI domains for depression and somatic anxiety were relatively higher (worse) for patients under evaluation than those on hormone treatment alone. The scores for all of the individual CCEI domains (free floating anxiety, phobic anxiety, somatic anxiety, depression, hysteria, and obsessionality) were lower in the post-operative cohort than in the other 2 cohorts.

The Bem Sex Role Inventory masculinity score for the combined cohorts was lower than for North American norms for either men or women. The femininity score for the combined cohorts was higher than for North American norms for either men or women. Those who were undergoing evaluation had the most divergent scores from North American norms and from the other treatment cohorts. Absolute differences were small. All scores of gender dysphoric patients averaged between 3.95 and 5.33 on a 7 point scale while the normative scores averaged between 4.59 and 5.12.

Eldh J, Berg A, Gustafsson M. Long-term follow up after sex reassignment surgery. Scand J Plast Reconstr Surg Hand Surg. 1997 Mar;31(1):39-45.

Eldh et al. conducted a non-blinded, observational study using a prospective cross-sectional design with a self-designed questionnaire and retrospective acquisition of pre-operative data. The investigators assessed economic circumstances, family status, satisfaction with surgical results, and sexual function in patients who had undergone gender reassignment surgery. Of the 175 patients who underwent reassignment surgery in Sweden, 90 responded. Of this number, 50 were female-to-male and 40 were male-to-female (ratio: 1:0.8). Patients reportedly were generally satisfied with the appearance of the reconstructed genitalia (no numbers provided). Of the patients who had undergone surgery prior to 1986, seven (14%) were dissatisfied with shape or size of the neo-phallus; 8 (16%) declined comment. There were 14 (35%), with 12 having surgery prior to 1986 and two between 1986 and 1995 inclusive, were moderately satisfied because of insufficient vaginal volume; 8 (20%) declined comment. A neo-clitoris was not constructed until the later surgical cohort. Three of 33 reported no sensation or no sexual sensation. Eight had difficulties comprehending the question and did not respond.

A total of nine (18%) patients had doubts about their gender orientation; 13 (26%) declined to answer the question; 44 (27 [61.3%] female-to-male and 17 [38.6%] male-to-female) were unmarried or without a steady partner; 19 (38.0%) female-to-male patients reported the absence of a sex life (28.0% declined to answer this particular question); 15 (30%) male-to-female reported dissatisfaction with their sex lives. Additionally, 3 (6.0%) reported absence of sexual activity post-operatively. Ten (11.1%) were dissatisfied with their life situation (17.8% declined to answer this question). The study found that 2 female-to-male patients and 2 male-to-female patients regretted their reassignment surgery and continued to live as the natal gender, and two patients attempted suicide.

Hepp U, Kraemer B, Schnyder U, Miller N, Delsignore A. Psychiatric comorbidity in gender identity disorder. J Psychosom Res. 2005 Mar;58(3):259-61.

Hepp et al. conducted a prospective, non-blinded, observational study using a cross-sectional design. There was some acquisition of retrospective data. The investigators assessed current and lifetime psychiatry co-morbidity using structured interviews for diagnosis of Axis 1 disorders (clinical syndromes) and Axis 2 disorders (developmental or personality disorders) and HADS for dimensional evaluation of anxiety and depression. Statistical description of the cohort and intra-group comparisons was performed. Continuous variables were compared using t-tests and ANOVA.

A total of 31 patients with gender dysphoria participated in the study: 11 (35.5%) female-to-male; 20 (64.5%) male-to-female (ratio 1:1.8). The overall mean age was 32.2±10.3. Of the participants, seven had undergone reassignment surgery, 10 pre-surgical patients had been prescribed hormone therapy, and 14 pre-surgical patients had not been prescribed hormone therapy. Forty five and one half percent of female-to-male and 20% of male-to-female patients did not carry a lifetime diagnosis of an Axis 1 condition. Sixty three and six tenths percent of female-to-male and 60% of male-to-female patients did not carry a current diagnosis of an Axis 1 condition. Lifetime diagnosis of substance abuse and mood disorder were more common in male-to-female patients (50% and 55% respectively) than female-to-male patients (36.4% and 27.3% respectively). Current diagnosis of substance abuse and mood disorder were present in male-to-female patients (15% and 20% respectively) and absent in female-to-male patients. One or more personality disorders were identified 41.9%, but whether this was a current or lifetime condition was not specified. Of the patients, five (16.1%) had a Cluster A personality disorder (paranoid-schizoid), seven (22.6%) had a Cluster B personality disorder (borderline, anti-social, histrionic, narcissistic), six (19.4%) had a Cluster C personality disorder (avoidant, dependent, obsessive-compulsive), and two (6.5%) were not otherwise classified.

The HADS test revealed non-pathologic results for depression (female-to-male: 6.64±5.03; male-to-female: 6.58±4.21) and borderline results for anxiety (female-to-male: 7.09±5.11; male-to-female: 7.74±6.13, where a result of 7-10 = possible disorder). There were no differences by natal gender. HADS scores were missing for at least 1 person. The investigators reported a trend for less anxiety and depression as measured by HADS in the patients who had undergone surgery.

b. Prospective, non-blinded, observational, cross-sectional studies with patients serving as their own controls

Rakic Z, Starcevic V, Maric J, Kelin K. The outcome of sex reassignment surgery in Belgrade: 32 patients of both sexes. Arch Sex Behav. 1996 Oct;25(5):515-25.

Rakic et al. conducted a prospective, non-blinded, observational study using a cross-sectional design and an investigator-designed quality of life tool that asked longitudinal (pre- and post-treatment) questions. Patients served as their own controls. The authors state that the study was not designed to assess the predictors of poor outcomes.

The investigators assessed global satisfaction, body image, relationships, employment status, and sexual function in patients with gender dysphoria who underwent reassignment surgery between 1989 and 1993 and were at least 6 months post-operative. The criteria to qualify for gender surgery were delineated (1985 standards from the Harry Benjamin International Gender Dysphoria Association) and included cross-gender behavior for at least 1 year. The questionnaire consisted of 10 questions using yes/no answers or Likert-type scales. Findings were descriptive without statistical analysis. As such, changes or differences considered to be biologically significant were not pre-specified, and there were no adjustments for multiple comparisons.

Of the 38 patients who had undergone reassignment surgery, 32 participated in the study 10 (31.2%) female-to-male and 22 (68.8%) male-to-female (ratio 1:2.2). The duration of follow-up was 21.8 ±13.4 months (range 6 months to 4 years). The age was female-to-male 27.8±5.2 (range 23-37) and male-to-female 26.4±7.8 (range 19-47).

Using an investigator-designed quality of life tool, all patients reported satisfaction with having undergone the surgery. Of the total participants, four (12.5%) (all male-to-female) and 8 (25%) (87.5% male-to-female) reported complete dissatisfaction or partial satisfaction with their appearance. Regarding relationships, 80% of female-to-male and 100% of male-to-female patients were dissatisfied with their relationships with others prior to surgery; whereas, no female-to-male patients and 18.1% of male-to-female patients were dissatisfied with relationships after surgery. Regarding sexual partners, 60% of female-to-male and 72.7% of male-to-female patients reported not having a sexual partner prior to surgery; whereas, 20% of female-to-male patients and 27.3% of male-to-female patients did not have a sexual partner after surgery. Of those with partners at each time interval, 100% of female-to-male and 50% of male-to-female patients reported not experiencing orgasm prior to surgery; whereas, 75% of female-to-male and 37.5% of male-to-female patients reported not experiencing orgasm after surgery. Fifty percent of female-to-male and 54.5% of male-to-female patients reported being either unemployed or not being a student full-time prior to surgery. After surgery, no female-to-male patients and 7 (31.8%) male-to-female patients reported being either unemployed or not being a student full-time. The change was due to student status. Six (60%) of female-to-male patients and 15 (68.2%) of male-to-female patients reported being unemployed before and after surgery.

c. Prospective, non-blinded, observational, cross-sectional studies with controls

Wolfradt U, Neumann K. Depersonalization, self-esteem and body image in male-to-female transsexuals compared to male and female controls. Arch Sex Behav. 2001 Jun;30(3):301-10.

Wolfradt and Neumann conducted a controlled, prospective, non-blinded, observational study using a cross-sectional design. The investigators assessed aspects of personality in male-to-female patients who had undergone vocal cord surgery for voice feminization and in healthy volunteers from the region. The patients had undergone gender reassignment surgery 1 to 5 years prior to voice surgery. The volunteers were matched by age and occupation. The primary hypothesis was that depersonalization, with the sense of being detached from one’s body or mental processes, would be more common in male-to-female patients with gender dysphoria. German versions of the Scale for Depersonalization Experiences (SDPE), the Body Image Questionnaire (BIQ), a Gender Identity Trait Scale (GIS), and the Self-Esteem Scale (SES) were used in addition to a question regarding global satisfaction. Three of the assessments used a 5 point scale (BIQ, GIS, and SDPE) for questions. One used a 4 point scale (SES). Another used a 7 point scale (global satisfaction). The study consisted of 30 male-to-female patients, 30 healthy female volunteers, and 30 healthy male volunteers. The mean age of study participants was 43 (range 29-67).

Results of the study revealed that there were no differences between the three groups for the mean scores of measures assessing depersonalization, global satisfaction, the integration of masculine traits, and body-image-rejected (subset). Also, the sense of femininity was equivalent for male-to-female patients and female controls and higher than that in male controls. The levels of self-esteem and body image-dynamic (subset) were equivalent for male-to-female patients and male controls and higher than that in female controls, and none of the numeric differences between means exceeded 0.61 units.

Beatrice J. A psychological comparison of heterosexuals, transvestites, preoperative transsexuals, and postoperative transsexuals. J Nerv Ment Dis. 1985 Jun;173(6):358-65. (United States study)

Beatrice conducted a prospective, non-blinded, observational study using a cross-sectional design and control cohorts in the U.S. The investigator assessed psychological adjustment and functioning (self-acceptance) in male-to-female patients with gender dysphoria (with and without gender reassignment surgery [GRS]), transvestites from two university specialty clinics, and self-identified heterosexual males recruited from the same two universities. The criteria to qualify for the study included being known to the clinic for at least one year, cross-dressing for at least one year without arrest, attendance at 10 or more therapy sessions, emotionally self-supporting, and financially capable of payment for reassignment surgery, and all of these criteria were met by the pre-operative cohort as well as the post-operative cohort. The cohorts were matched to the post-operative cohort (age, educational level, income, ethnicity, and prior heterosexual object choice). The post-operative cohort was selected not on the basis of population representation, but on the basis of demographic feasibility for a small study. The instruments used were the Minnesota Multiphasic Personality Inventory (MMPI) and the Tennessee Self-Concept Scale (TSCS). Changes or differences considered to be biologically significant were not pre-specified.

Of the initial 54 recruits, ten subjects were left in each of the cohorts because of exclusions identified due to demographic factors. The mean age of each cohort were as follows: pre-operative gender dysphoric patients 32.5 (range 27-42) years, postoperative patients 35.1 (30-43) years old, transvestite 32.5 (29-37) years old, and heterosexual male 32.9 (28-38) years old. All were Caucasian. The mean age for cross-dressing in pre-operative patients (6.4 years) and post-operative patients (5.8 years) was significantly lower than for transvestites (11.8 years).

The scores for self-acceptance did not differ by diagnostic category or surgical status as measured by the TSCS instrument. As measured by the T-scored MMPI instrument (50±10), levels of paranoia and schizophrenia were higher for post-operative (GRS) patients (63.0 and 68.8) than transvestites (55.6 and 59.6) and heterosexual males (56.2 and 51.6). Levels of schizophrenia were higher for pre-operative patients (65.1) than heterosexual males (51.6). There were no differences between patients with gender dysphoria by surgical status. Scores for the Masculine-Feminine domain were equivalent in those with transvestitism and gender dysphoria with or without surgery, but higher than in heterosexual males. The analysis revealed that despite the high level of socio-economic functioning in these highly selected subjects, the MMPI profiles based on the categories with the highest scores were notable for antisocial personality, emotionally unstable personality, and possible manic psychosis in the pre-operative GRS patients and for paranoid personality, paranoid schizophrenia, and schizoid personality in the post-operative GRS patients. By contrast, the same MMPI profiling in heterosexual males and transvestites was notable for the absence of psychological dysfunction.

Kraemer B, Delsignore A, Schnyder U, Hepp U. Body image and transsexualism. Psychopathology. 2008;41(2):96-100. Epub 2007 Nov 23.

Kraemer et al. conducted a prospective, non-blinded, observational study using a cross-sectional design comparing pre-and post-surgical cohorts. The investigators assessed body image, and patients were required to meet DSM III or DSM IV criteria as applicable to the time of entry into the clinic. Post-surgical patients were from a long-term study group (Hepp et al., 2002). Pre-surgical patients were recent consecutive referrals. The assessment tool was the Fragebogen zur Beurteilung des eigenen Korpers (FBeK) which contained 3 domains.

There were 23 pre-operative patients: 7 (30.4%) female-to-male and 16 (69.6%) male-to-female (ratio 1:2.3). There were 22 post-operative patients: 8 (36.4 %) female-to-male and 14 (63.6%) male-to-female (ratio 1:1.8). The mean ages of the cohorts were as follows: pre-operative 33.0±11.3 years; post-operative 38.2±9.0 years. The mean duration after reassignment surgery was 51±25 months (range 5-96).

The pre-operative groups had statistically higher insecurity scores compared to normative data for the natal sex: female-to-male 9.0±3.8 versus 5.1±3.7; male-to-female 8.1±4.5 versus 4.7±3.1 as well as statistically lower self-confidence in one’s attractiveness: female-to-male 3.1±2.9 versus 8.9±3.1; male-to-female 7.0±2.9 vs 9.5±2.6. Scores for insecurity and self-confidence in the post-operative cohort were not inferior to the normative values. Insecurity decreased statistically from 9.0±3.8 in the female-to-male pre-operative cohort and from 8.1±4.5 in the male-to-female pre-operative cohort to 4.4±3.8 and 3.4±2.3 in the respective post-operative cohorts. Self-confidence increased statistically from 3.1±2.9 in the female-to-male pre-operative cohort and 7.0±2.9 male-to-female pre-operative cohort to 9.29±1.98 and 10.29±2.0 in the respective post-operative cohorts.

d. Prospective, non-blinded, observational, cross-sectional studies with semi-matched controls

Kuhn A, Bodmer C, Stadlmayr W, Kuhn P, Mueller M, Birkhäuser M. Quality of life 15 years after sex reassignment surgery for transsexualism. Fertil Steril. 2009 Nov;92(5):1685-1689.e3. Epub 2008 Nov 6.

Kuhn et al. conducted a prospective, non-blinded, observational study using a cross-sectional design and semi-matched control cohort. The investigators assessed global satisfaction in patients who were from gynecology and endocrinology clinics, and who had undergone some aspect of gender reassignment surgery in the distant past, but were still receiving cross-sex hormones from the clinic. The quality-of-life assessment tools included a VAS and the King’s Health Questionnaire (KHQ) with its eight domains including one for incontinence. The KHQ questionnaire and the numerical change/difference required for clinical significance (≥5 points in a given domain, with higher scores being more pathologic) were included in the publication. Twenty healthy female controls from the medical staff who had previously undergone an abdominal or pelvic surgery were partially matched by age and body mass index (BMI), but not sex.

Of the 55 participants, three (5.4%) were female-to-male and 52 (94.5%) were male-to-female (ratio 1:17.3). Reassignment surgery had been conducted 8 to 23 years earlier (median 15 years). The median age of the patients at the time of the study was 51 years (range 39-62 years). The patients had undergone a median of 9 surgical procedures in comparison to the 2 undergone by controls. Patients were less likely to be married (23.6% versus 65%; p=0.002), and partnership status was unknown in 5 patients. The scores of VAS global satisfaction (maximal score 8) were lower for surgically reassigned patients (4.49±0.1 SEM) than controls (7.35±0.26 SEM) (p<0.0001).

There were statistically and biologically significant differences for 4 of the 8 domains between the patients and controls: physical limitation: 37.6±2.3 versus 20.9±1.9 (p0.0001), personal limitation: 20.9±1.9 versus 11.6±0.4 (p<0.001), role limitation: 27.8+2.4 versus 34.6+1.7 (p<0.5), and general health: 31.7±2.2 versus 41.0±2.3 (p<0.02). Information as to whether a high or low score was positive for the various domains was not provided. Wording from the abstract suggests that these 4 differences all reflected lower quality-of-life.

e. Prospective, blinded, observational, cross-sectional studies with no concurrent controls

Hess J, Rossi Neto R, Panic L, Rübben H, Senf W. Satisfaction with male-to-female gender reassignment surgery. Dtsch Arztebl Int. 2014 Nov 21;111(47):795-801.

Hess at al. conducted a prospective, blinded, observational study using a cross-sectional design and a self-designed questionnaire. The investigators assessed post-operative satisfaction in male-to-female patients with gender dysphoria who were followed in a urology specialty clinic. Patients had met the ICD-10 diagnostic criteria, undergone gender reassignment surgeries including penile inversion vaginoplasty, and a Likert-style questionnaire survey with 11 elements. Descriptive statistics were provided.

There were 254 consecutive eligible patients who had undergone surgery between 2004 and 2010 identified and sent surveys, of whom 119 (46.9%) responded anonymously. Of the participants, 13 (10.9%) reported dissatisfaction with outward appearance and 16 (13.4%) did not respond; three (2.5%) reported dissatisfaction with surgical aesthetics and 25 (21.0%) did not respond; eight (6.7%) reported dissatisfaction with functional outcomes of the surgery and 26 (21.8%) did not respond; 16 (13.4%) reported they could not achieve orgasm and 28 (23.5%) did not respond; four (3.4%) reported feeling completely male/more male than female and 28 (23.5%) did not respond; six (5.0%) reported not feeling accepted as a woman, two (1.7%) did not understand the question, and 17 (14.3%) did not respond; and 16 (13.4%) reported that life was harder and 24 (20.2%) did not respond.

Lawrence A. Patient-reported complications and functional outcomes of male-to-female sex reassignment surgery. Arch Sex Behav. 2006 Dec;35(6):717-27. Epub 2006 Nov 16. (United States study)

Lawrence conducted a prospective, blinded observational study using a cross-sectional design and a partially self-designed quality of life tool using yes/no questions or Likert scales. The investigator assessed sexual function, urinary function, and other pre/post-operative complications in patients who underwent male-to-female gender reassignment surgery. Questions addressed core reassignment surgery (neo-vagina and sensate neo-clitoris) and related reassignment surgery (labiaplasty, urethral meatus revision, vaginal deepening/widening, and other procedures), use of electrolysis, and use of hormones.

Questionnaires were designed to be completed anonymously and mailed to 727 eligible patients. Of those eligible, 232 (32%) returned valid questionnaires. The age at the time reassignment surgery was 44±9 (range 18-70) years and mean duration after surgery was 3±1 (range 1-7) years.

Happiness with sexual function and the reassignment surgery was reported to be lower when permanent vaginal stenosis, clitoral necrosis, pain in the vagina or genitals, or other complications such as infection, bleeding, poor healing, other tissue loss, other tissue necrosis, urinary incontinence, and genital numbness were present. Quality-of-life (QOL) was impaired when pain in the vagina or genitals was present.

Satisfaction with sexual function, gender reassignment surgery, and overall QOL was lower when genital sensation was impaired and when vaginal architecture and lubrication were perceived to be unsatisfactory. Intermittent regret regarding reassignment surgery was associated with vaginal hair and clitoral pain. Vaginal stenosis was associated with surgeries performed longer ago; whereas, more satisfaction with vaginal depth and width was present in more recent surgeries.

f. Prospective, non-blinded, observational, longitudinal and patients served as their own controls

Heylens G, Verroken C, De Cock S, T'Sjoen G, De Cuypere G. Effects of different steps in gender reassignment therapy on psychopathology: a prospective study of persons with a gender identity disorder. J Sex Med. 2014 Jan;11(1):119-26. Epub 2013 Oct 28.

Heylens et al. conducted a prospective, non-blinded observational study using a longitudinal design in which patients served as their own controls. They used a non-specific psychiatric test with normative data along with two self-designed questionnaires. The investigators assessed psychosocial adjustment and psychopathology in patients with gender identity disorders. Patients were to be sequentially evaluated prior to institution of hormonal therapy, then 3 to 6 months after the start of cross-sex hormone treatment, and then again one to 12 months after reassignment surgery. The Dutch version of the SCL-90R with 8 subscales (agorophobia, anxiety, depression, hostility, interpersonal sensitivity, paranoid ideation/psychoticism, and sleeping problems) and a global score (psycho-neuroticism) was used serially. A seven parameter questionnaire was used serially to assess changes in social function. Another cross-sectional survey assessed emotional state. The cohorts at each time point consisted of patients who were in the treatment cohort at the time and who had submitted survey responses.

Ninety of the patients who applied for reassignment surgery between June 2005 and March 2009 were recruited. Fifty seven entered the study. Forty six (51.1% of the recruited population) underwent reassignment surgery. Baseline questionnaire information was missing for 3 patients. Baseline SCL-90 scores were missing for 1 patient but included SCL-90 scores from some of the 11 recruits who had not yet undergone reassignment surgery. Time point 2 (after hormone therapy) SCL-90 information was missing for 10, but included SCL-90 scores from some of the 11 recruits who had not yet undergone reassignment surgery. At time point 3, 42 (91.3% of those who underwent reassignment surgery) patients completed some part of the SCL-90 survey and the psychosocial questionnaires. Some questionnaires were incomplete. The investigators reported response rates of 73.7% for the psychosocial questionnaires and 82.5% rates the SCL-90.

Of those who responded at follow-up after surgery, 88.1% reported having good friends; 52.4% reported the absence of a relationship; 47.6% had no sexual contacts; 42.9% lived alone; 40.5% were unemployed, retired, students, or otherwise not working; 2.4% reported alcohol abuse; and 9.3% had attempted suicide. The frequency of these parameters reportedly did not change statistically during the study interval, but there was no adjustment for the inclusion of patients who did not undergo surgery.

In a cross-sectional, self-report mood survey, of the 42 study entrants who completed the entire treatment regimen including reassignment surgery and the final assessment (refers to the initial 57) reported improved body-related experience (97.6%), happiness (92.9%), mood (95.2%), and self-confidence (78.6%) and reduced anxiety (81.0%). Of participants, 16.7% reported thoughts of suicide. Patients also reported on the intervention phase that they believed was most helpful: hormone initiation (57.9%), reassignment surgery (31.6%), and diagnostic-psychotherapy phase (10.5%).

The global “psycho-neuroticism” SCL-90R score, along with scores of 7 of the 8 subscales, at baseline were statistically more pathologic than the general population. After hormone therapy, the score for global “psycho-neuroticism” normalized and remained normal after reassignment surgery. More specifically the range for the global score is 90 to 450 with higher scores being more pathologic. The score for the general population was 118.3±32.4. The respective scores for the various gender dysphoric cohorts were 157.7±49.8 at initial presentation, 119.7±32.1 after hormone therapy, and 127.9±37.2 after surgery. The scores for the general population and the scores after either hormone treatment or surgical treatment did not differ.

Smith YL, Van Goozen SH, Kuiper AJ, Cohen-Kettenis PT. Sex reassignment: outcomes and predictors of treatment for adolescent and adult transsexuals. Psychol Med. 2005 Jan;35(1):89-99.

Smith et al. conducted a prospective, non-blinded, observational study using a longitudinal design and psychological function tools. Patients served as their own control prior to and after reassignment surgery. The investigator assessed gender dysphoria, body dissatisfaction, physical appearance, psychopathology, personality traits, and post-operative function in patients with gender dysphoria. Patients underwent some aspect of reassignment surgery. The test instruments included the Utrecht Gender Dysphoria Scale (12 items), the Body Image Scale adapted for a Dutch population (30 items), Appraisal of Appearance Inventory (3 observers, 14 items), the Dutch Short MMPI (83 items), the Dutch version of the Symptom Checklist (SCL)(90 items), and clinic-developed or modified questionnaires. Pre-treatment data was obtained shortly after the initial interview. Post-surgery data were acquired at least 1 year post reassignment surgery.

The size of the pool of available patients was not identified. Overall 325 consecutive adolescents and adults initially were “involved.” Of these, 103 (29 [28.2%] female-to-male patients and 74 [71.8%] male-to-female patients [ratio 1:2.6]) never started hormone therapy; 222 (76 [34.2%] female-to-male patients and 146 [65.8%] male-to-female patients [ratio 1:1.9]) initiated hormone therapy. Of the patients who started hormone therapy, 34 (5 [14.7%] female-to-male patients and 29 [85.3%] male-to-female patients [ratio 1:5.8]) discontinued hormone therapy. After discontinuation of hormone therapy, the study was limited to adults. Of adults, 162 (58 [35.8%] female-to-male and 104 [64.2%] male-to-female [ratio 1:1.8]) were eligible and provided pre-surgical test data, and 126 (77.8% of eligible adults) (49 [38.9%] female-to-male and 77 [61.1%] male-to-female [ratio 1:1.6]) provided post-surgical data. For those patients who completed reassignment, the mean age at the time of surgical request was 30.9 years (range 17.7-68.1) and 35.2 years (range 21.3-71.9) years at the time of follow-up. The intervals between hormone treatment initiation and surgery and surgery and follow-up were 20.4 months (range 12 to 73) and 21.3 months (range 12 to 47) respectively.

Of the 126 adults who provided post-surgical data, 50 (40.0%) reported having a steady sexual partner, three (2.3%) were retired, and 58 (46.0%) were unemployed. Regarding regret, six patients expressed some regret regarding surgery, but did not want to resume their natal gender role, and one male-to-female had significant regret and would not make the same decision.

Post-surgery Utrecht dysphoria scores dropped substantially and approached reportedly normal values. The patients’ appearance better matched their new gender. No one was dissatisfied with his/her overall appearance at follow-up. Satisfaction with primary sexual, secondary sexual, and non-sexual body traits improved over time. Male-to-female patients, however, were more dissatisfied with the appearance of primary sex traits than female-to-male patients. Regarding mastectomy, 27 of 38 (71.1%) female-to-male respondents (not including 11 non-respondents) reported incomplete satisfaction with their mastectomy procedure. For five of these patients, the incomplete satisfaction was because of scarring. Regarding vaginoplastly, 20 of 67 (29.8%) male-to-female respondents (not including 10 non-respondents) reported incomplete satisfaction with their vaginoplasty.

Most of the MMPI scales were already in the normal range at the time of initial testing. SCL global scores for psycho-neuroticism were minimally elevated before surgery 143.0±40.7 (scoring range 90 to 450) and normalized after surgery 120.3±31.4. (An analysis using patient level data for only the completers was not conducted.)

Megeri D, Khoosal D. Anxiety and depression in males experiencing gender dysphoria. Sexual and Relationship Therapy. 2007 Feb; 22(1):77-81. (Not in PubMed) and Udeze B, Abdelmawla N, Khoosal D, Terry T. Psychological functions in male-to-female people before and after surgery. Sexual and Relationship Therapy. 2008 May; 23(2):141-5. (Not in PubMed)

Udeze et al. conducted a prospective, non-blinded, longitudinal study assessing a randomized subset of patients who had completed a non-specific psychological function tool prior to and after male-to-female reassignment surgery. Patients served as their own controls. The investigators used the WPATH criteria for patient selection. Psychiatric evaluations were routine. All patients selected for treatment were routinely asked to complete the self-administered SCL-90R voluntarily on admission to the program and post-operatively. A post-operative evaluations (psychiatric and SCL-90R assessment) were conducted within 6 months to minimize previously determined loss rates. The patient pool was domestic and international. There were 546 gender dysphoric patients from all over the United Kingdom and abroad, of whom 318 (58.2%) progressed to surgery. Of these, 127 were from the local Leicester area in the United Kingdom and 38 (29.9%) progressed to surgery. The mean age for the selected male-to-female patients at the time of study was 47.33±13.26 years (range 25 to 80) and reflected an average wait time for surgery of 14 months (range 2 months to 6 years). For this investigation, 40 male-to-female subjects were prospectively selected.

The raw SCL-90 global scores for psycho-neuroticism were unchanged over time: 48.33 prior to surgery and 49.15 after surgery. If the scale was consistent with T-scoring, the results were non-pathologic. A statistical trend in the anger/hostility subscale was reported. No psychiatric disorders were otherwise identified prior to or after surgery.

Investigators from the same clinical group (Megeri, Khoosal, 2007) conducted additional testing to specifically address anxiety and depression with the Beck Depression Inventory, General Health Questionnaire (with 4 subscales), HADS, and Spielberger State and Trait Anxiety Questionnaire (STAI-X1 and STA-X2). The test population and study design appear to be the same. No absolute data were presented. Only changes in scores were presented. There were no statistically significant changes.

Kockott G, Fahrner EM. Transsexuals who have not undergone surgery: a follow-up study. Arch Sex Behav. 1987 Dec;16(6):511-22.

Kockott and Fahrner conducted a prospective, observational study using a longitudinal design. Treatment cohorts were used as controls, and patients served as their own controls. The investigators assessed psychosocial adjustment in patients with gender identity issues. Patients were to have met DSM III criteria. Trans-sexuality, transvestitism, and homosexuality were differentiated. The criteria required for patients to receive hormone therapy and/or reassignment surgery were not delineated. After receiving hormone therapy, patients were later classified by surgical reassignment status (pre-operative and post-operative) and desire for surgery (unchanged desire, hesitant, and no longer desired).

The first investigative tool was a semi-structured in-person interview consisting of 125 questions. The second investigative tool was a scale that organized the clinical material into nine domains which were then scored on a scale. The Psychological Integration of Trans-sexuals (PIT) instrument was not otherwise described in the publication or in other citations. There were 15 interviews and two separate interviewers. There were 80 patients identified, but 58 (72.5%) patients (26 pre-operative; 32 post-operative) were ultimately included in the analysis. The duration of follow-up was longer for post-operative patients (6.5 years) than for pre-operative patients (4.6 years) (including time for one patient subsequently excluded). The mean age of the post-operative patients was 35.5±13.1 years, and the age of the patients who maintained a continued desire for surgery was 31.7±10.2 years. The age of the patients who hesitated about surgery was somewhat older, 40.3±9.4 years. The age of the patients who were no longer interested in surgery was 31.8±6.5 years. All were employed or in school at baseline. Patients with hesitation were financially better-off, had longer-standing relationships even if unhappy, and had a statistical tendency to place less value on sex than those with an unchanged wish for surgery.

Post-operative patients more frequently reported contentment with the desired gender and the success of adaption to the gender role than the pre-operative patients with a persistent desire for surgery. Post-operative patients more frequently reported sexual satisfaction than pre-operative patients with a continuing desire for surgery. Post-operative patients also more frequently reported financial sufficiency and employment than pre-operative patients with a persistent desire for surgery. Suicide attempts were stated to be statistically less frequent in the post-surgical cohort.

Psychosocial adjustment scores were in the low end of the range with “distinct difficulties” (19-27) at the initial evaluation for the post-operative patients (19.7), the pre-operative patients with a persistent wish for surgery (20.2), and the hesitant patients (19.7). At initial evaluation, psychosocial adjustment scores for patients no longer wanting surgery were at the high end of the range with “few difficulties” (10-18). At the final evaluation, Psychosocial adjustment scores were at the high end of the range “few difficulties” (10-18) for the post-operative patients (13.2) and the patients no longer wanting surgery (16.5). Psychosocial adjustment scores at the final evaluation were in the borderline range between “few difficulties” (10-18) and “distinct difficulties” (19-27) for both the pre-operative patients with a persistent desire for surgery (18.7), and the hesitant patients (19.1).

The changes in the initial score and the final follow-up score within e ach group were tracked and reported to be statistically significant for the post-operative group, but not for the other groups. Statistical differences between groups were not presented. Moreover, the post-operative patients had an additional test immediately prior to surgery. The first baseline score (19.7) would have characterized the patients as having “distinct difficulties” in psychosocial adjustment while the second baseline score (16.7) would have categorized the patients as having “few difficulties” in psychosocial adjustment despite the absence of any intervention except the prospect of having imminent reassignment surgery. No statistics reporting on the change between scores of the initial test and the test immediately prior to surgery and the change between scores of the test immediately prior to surgery and the final follow-up were provided.

g. Prospective, non-blinded, observational, longitudinal study with retrospective baseline data

Meyer JK, Reter DJ. Sex reassignment. Follow-up. Arch Gen Psychiatry. 1979 Aug;36(9):1010-5. (United States study)

Meyer and Reter conducted a prospective, non-blinded, observational study using a longitudinal design and retrospective baseline data. Interview data were scored with a self-designed tool. There were treatment control cohorts, and patients served as their own controls. The investigators assessed patients with gender dysphoria. The 1971 criteria for surgery required documented cross-sex hormone use as well as living and working in the desired gender for at least 1 year in patients subsequently applying for surgery. Clinical data including initial interviews were used for baseline data. In follow-up, the investigators used extensive 2 to 4 hour interviews to collect information on (a) objective criteria of adaptation, (b) familial relationships and coping with life milestones, and (c) sexual activities and fantasies. The objective criteria, which were the subject of the publication, included employment status (Hollingshead job level), cohabitation patterns, and need for psychiatric intervention. The investigators designed a scoring mechanism for these criteria and used it to determine a global adjustment score.

The clinic opened with 100 patients, but in follow-up, 52 of the 100 patients were interviewed and 50 of the interviewees gave consent for publication. Of these, 15 (4 female-to-male, 11 male-to-female; ratio 1:2.8) were part of the initial operative cohort, 14 (1 female-to-male; 13 male-to-female; ratio 1:13) later underwent reassignment surgery at the institution or elsewhere, and 21 (5 female-to-male; 16 male-to-female; ratio 1:3.2) did not undergo surgery. The mean ages of these cohorts were 30.1, 30.9, and 26.7 years respectively. The mean follow-up time was 62 months (range 19-142) for those who underwent surgery and 25 months (range 15-48) for those who did not. Socioeconomic status was lowest in those who subsequently underwent reassignment surgery.

Of patients initially receiving surgery, 8% had some type of later psychiatric contact, which was approximately 3.5 times higher in those who had not under gone surgery or who had done so later. There was a single female-to-male patient with multiple surgical complications who sought partial reassignment surgery reversal.

The adjustment scores improved over time with borderline statistical significance for the initial operative group and with statistical significance for the never operated group. Both the absolute score value at follow-up and the magnitude of change were the same. By contrast, the adjustment scores did not improve for those who were not in the cohort initially approved for surgery, but who subsequently underwent surgery later. This was particularly true if the surgery was performed elsewhere.

h. Prospective, non-blinded, observational, semi-cross sectional with no controls

Johansson A, Sundbom E, Höjerback T, Bodlund O. A five-year follow-up study of Swedish adults with gender identity disorder. Arch Sex Behav. 2010 Dec;39(6):1429-37. Epub 2009 Oct 9.

Johansson et al. conducted non-blinded, observational study using a semi-cross-sectional design (albeit over an extended time interval) using a self-designed tool and Axis V assessment. The study was prospective except for the acquisition of baseline Axis V data. There were no formal controls in this mixed population with and without surgery.

The investigators assessed satisfaction with the reassignment process, employment, partnership, sexual function, mental health, and global satisfaction in gender-reassigned persons from two disparate geographic regions. No other information regarding the sites of care was provided. Surgical candidates were required to have met National Board of Health and Welfare criteria including initial and periodic psychiatric assessment, ≥1 year of real-life experience in preferred gender, and ≥1 year of subsequent hormone treatment. In addition, participants were required to have been approved for reassignment 5 or more years prior and/or to have completed surgical reassignment (e.g., sterilization, genital surgery) 2 or more years prior. The investigators employed semi-structured interviews covering a self-designed list of 55 pre-formulated questions with a 3 or 5 point ordinal scale. Clinician assessment of Global Assessment of Functioning (GAF; Axis V) was also conducted and compared to initial finding during the study. Changes or differences considered to be biologically significant were not pre-specified. Diagnostic cut points were not provided. Statistical corrections for multiple comparisons were not included. There was no stratification by treatment.

Of the pool of 60 eligible patients, there were 21 (35.0%) female-to-male and 39 (65%) male-to-female (ratio 1:1.9) ; 32 (53.3% of eligible) (14 [43.8%] female-to-male; 18 [56.2%] male-to-female [ratio 1:1.3]) had completed genital gender reassignment surgery (not including 1 post mastectomy), 5 were still in the process of completing surgery, and 5 (1 female-to-male; 4 male-to-female; ratio 1:4) had discontinued the surgical process prior to castration and genital surgery.

The ages of the patients (ranges) at entry into the program, reassignment surgery, and follow-up were 27.8 (18-46), 31.4 (22-49), and 38.9 (28-53) in the female-to-male group respectively and 37.3 (21-60), 38.2 (22-57), and 46.0 (25.0-69.0) in the male-to-female group respectively. The differences in age by cohort group were statistically significant. Of participants, 88.2% of all enrolled female-to-male versus 44.0% of all enrolled female-to-male patients had cross-gender identification in childhood (versus during or after puberty) (p<0.01).

Although 95.2% of all enrolled patients self-reported improvement in GAF, in contrast, clinicians determined GAF improvement in 61.9% of patients. Clinicians observed improvement in 47% of female-to-male patients and 72% of male-to-female patients. A ≥5 point improvement in the GAF score was present in 18 (42.9%). Of note, three of the five patients who were in the process of reassignment and five of the five who had discontinued the process were rated by clinicians as having improved.

Of all enrolled 95.2% (with and without surgery) reported satisfaction with the reassignment process. Of these patients, 33 (79%) identified themselves by their preferred gender and nine (21%) identified themselves as transgender. None of these nine (eight male-to-female) had completed reassignment surgery because of ambivalence secondary to lack of acceptance by others and dissatisfaction with their appearance. Of the patients who underwent genital surgery (n=32) and mastectomy only (n=1), 22 (66.7%) were satisfied while four (three female-to-male) were dissatisfied with the surgical treatment.

Regarding relationships after surgery, 16 (38%) (41% of female- to-male; 36% of male-to-female) were reported to have a partner. Yet more than that number commented on partner relationships: 62.2 % of the 37 who answered (50.0% of female- to-male; 69.6% of male-to-female) reported improved partner relationships (5 [11.9%] declined to answer.); 70.0% of the 40 who answered (75.0% of female-to-male; 66.7% of male-to-female) reported an improved sex life. Investigators observed that reported post-operative satisfaction with sex life was statistically more likely in those with early rather than late cross-gender identification.

In addition 55.4% self-reported improved general health; 16.1% reported impaired general health; 11.9% were currently being treated with anti-depressants or tranquilizers; 44.7 % of the 38 who answered (53.3% of female-to-male; 39.1% of male-to-female) reported improved work circumstances (4 [9.5%] declined to answer.); 61.9% were students or employed. The remainder (38.1%) were living on disability pensions (28.6%), unemployed (4.8%), or retired (4.8%).

i. Prospective, cross sectional, observational, internet self- report survey, with unknown blinding, no formal controls

Newfield E, Hart S, Dibble S, Kohler L. Female-to-male transgender quality of life. Qual Life Res. 2006 Nov;15(9):1447-57. Epub 2006 Jun 7. (United States study)

Newfield et al. conducted a prospective, observational internet self-report survey of unknown blinding status using a cross-sectional design and a non-specific quality of life tool in a mixed, population with and without reassignment surgery. There were no formal controls.

The investigators recruited natal female participants identifying as male using email, internet bulletin boards, and flyers/postcards distributed in the San Francisco Bay Area. Reduction of duplicate entries by the same participant was limited to the use of a unique user name and password.

The investigators employed the SF-36 Version 2 using U.S. normative data. They reported using both male and female normative data for the comparator SF-36 cohort. Data for the 8 domains were expressed as normative scoring. The Bonferroni correction was used to adjust for the risk of a Type 1 error with analyses using multiple comparisons.

A total of 379 U.S. respondents classified themselves as males or females to males with or without therapeutic intervention. The mean age of the respondents who classified themselves as male or female-to-male was 32.6±10.8 years. 89% were Caucasian, 3.6% Latino, 1.8% African American, 1.8% Asian, and 3.8% other. 254 (67.0%) reported any testosterone use in the past or currently; and 242 (63.8%) reported current testosterone use. In addition, 136 (36.7%) reported having had “top” surgery and 11 (2.9%) reported having “bottom” surgery. The Physical Summary Score (53.45±9.42) was statistically higher (better) than the natal gender unspecified SF-36 normative score (50±10) (p=<0.001), but was within 1 standard deviation of the normative mean. The Mental Summary Score (39.63±12.2) was statistically lower (worse) than the natal gender unspecified SF-36 normative score (50±10) (p<0.001), but was well within 2 standard deviations of the normative mean. Subcomponents of this score: Mental Health (42.12±10.2), Role Emotional (42.42±11.6), Social Functioning (43.14±10.9), and Vitality (46.22±9.9) were statistically lower (worse) than the SF-36 normative sub-scores, but well within 1 standard deviation of the normative sub-score means. Interpretive information for these small biologic differences in a proprietary assessment tool was not provided.

Additional intragroup analyses were conducted, although the data were not stratified by type of therapeutic intervention (hormonal, as well as, surgical). Outcomes of hormone therapy were considered separately and dichotomously from reassignment surgery. The Mental Summary Score was statistically higher (better) in those who had “Ever Received Testosterone” (41.22±11.9) than those with “No Testosterone Usage” (36.08±12.6) (p=0.001). The Mental Summary Scores showed a trend towards statistical difference between those who “Ever Received Top Surgery” (41.21±11.6) and those without “Top Surgery” (38.01±12.5) (p=0.067). These differences were well within 1 standard deviation of the normative mean. Interpretive information for these small biologic differences in a proprietary assessment tool was not provided.

j. Partially prospective, non-blinded, observational studies with longitudinal designs and patients served as their own controls

Ruppin U, Pfäfflin F. Long-term follow-up of adults with gender identity disorder. Arch Sex Behav. 2015 Jul;44(5):1321-9. Epub 2015 Feb 18.

Ruppin and Pfafflin conducted a partially prospective, non-blinded, observational study using a longitudinal design and non-specific psychometric tests and a self-designed interview tool and questionnaire. Patients served as their own controls.

The investigators assessed psychological symptoms, interpersonal difficulties, gender role stereotypes, personality characteristics, societal function, sexual function, and satisfaction with new gender role in patients with gender dysphoria. Patients were required to have met the ICD-10 criteria for trans-sexualism, been seen by the clinic by prior to 2001, and completed an official change in gender including name change prior to 2001. Assessment tools included German versions of standardized surveys with normative data: the SCL 90R, the Inventory of Interpersonal Problems (IIP), Bem Sex Role Inventory (BSRI), and the Freiburg Personality Inventory (FPI-R), along with semi-structured interviews with self-designed questionnaires. The prospective survey results were compared to retrospective survey results.

Overall, 140 patients received recruitment letters then 71 (50.7%) agreed to participate. Of these participants, 36 (50.7%) were female-to-male; 35 (49.3%) were male-to-female (ratio 1:0.97). The ages of the patients were: 41.2±5.78 years female-to-male and 52.9±10.82 years male-to-female 52.9±10.82 years. The intervals for follow-up were 14.1±1.97 years and 13.7±2.17 years respectively.

All female-to-male patients had undergone mastectomy; 91.7% had undergone oopherectomy and/or hysterectomy; 61.1% had undergone radial forearm flap phalloplasty or metaoidioplasty; 94.3% of male-to-female patients had undergone vaginoplasty and perhaps an additional procedure (breast amplification, larynx surgery, or vocal cord surgery). Two male-to-female patients had not undergone any reassignment surgery, but were still included in the analyses.

A total of 68 patients ranked their well-being as 4.35±0.86 out of five (three patients did not respond to this question). Of respondents, 40% reported not in a steady relationship. Regular sexual relationships were reported by 57.1% of 35/36 female-to-male respondents and 39.4% of 33/35 of male-to-female respondents (three patients did not respond to this question). A total of 11 patients reported receiving out-patient psychotherapy; 69 did not express a desire for gender role reversal (two did not respond to this question). The response rate was less than 100% for most of the self-designed survey questions.

Changes from the initial visit to the follow-up visit were assessed for the SCL-90R in 62 of 71 patients. Changes from the initial visit to the follow-up visit were assessed for the IIP in 55 of 71 patients. Changes from the initial visit to the follow-up visit were assessed for the FPI-R in 58 of 71 patients. The effect size was large only for the “Life Satisfaction” scale. Changes from the initial visit to the follow-up visit were assessed for the BSRI in 16 of 36 female-to-male patients and 19 of 35 male-to-female patients. The “Social Desirability” score increased for the female-to-male respondents. At endpoint, both categories of respondents reported androgynous self-images.

k. Partially prospective, non-blinded, observational studies with cross-sectional designs that had control groups but were not concurrent

Haraldsen IR, Dahl AA. Symptom profiles of gender dysphoric patients of transsexual type compared to patients with personality disorders and healthy adults. Acta Psychiatr Scand. 2000 Oct;102(4):276-81.

Haraldsen and Dahl conducted a partially prospective, non-blinded, observational study using a cross-sectional design and a non-specific psychometric test. There was a control group, but it was not concurrent.

In the germane sub-study, the investigator assessed psychopathology in patients with gender dysphoria. Patients, who were independently evaluated by 2 senior psychiatrists, were required to meet DSM III-R or DSM IV diagnostic criteria and the Swedish criteria for reassignment surgery. The Norwegian version of the SCL-90 was used. The testing was conducted from 1987 to 1989 for those who had undergone reassignment surgery between 1963 and 1987 and from 1996 to 1998 for pre-surgical patients who had applied for reassignment surgery between 1996 and 1998. In addition, Axis I, Axis II, and Axis V (Global Functioning) was assessed.

Of 65 post–surgical and 34 pre-surgical patients, 59 post-surgical and 27 pre-surgical patients ultimately entered the study. The combined cohorts consisted of 35 (40.7%) female-to-male patients and 51 (59.3%) male-to-female patients (ratio 1:1.5). The ages were female-to-male 34±9.5 years and female-to-male 33.3±10.0 years. The other control group consisted of patients with personality disorder. 101 (27 men (33.9±7.3 years) and 74 women (31.6±8.2) were tested during a treatment program. One year later, 98% were evaluated.

A total of 28 (32.5%) of the pre- and post- reassignment surgery patients had an Axis I diagnosis compared to 100 (99.0%) of those with personality disorders. Depression and anxiety were the most common diagnoses in both groups, but were approximately three to four times more common in the personality disorder cohort. Seventeen (19.8%) of the pre- and post- reassignment surgery patients had an Axis II diagnosis whereas the mean number of personality disorders in the personality disorder cohort was 1.7±1. The Global Assessment of Function was higher (better) in the gender dysphoric groups 78.0±8.9 than in the personality disorder cohort (53.0±9.0).

Global Severity Indices (GSI) were highest for those with personality disorder regardless of gender and exceeded the cut-point score of 1.0. The GSI scores for females-to-males and males-to-females were 0.67±57 and 0.56±0.45. Although they were nominally higher than the healthy normative controls (males: 0.32±0.36 and females 0.41±0.43), they were well within the non-pathologic range. The same was true for the subscales.

SCL-90 GSI scores did not differ substantively between pre- and post-surgical patients, nor did the SCI subscale scores differ substantively between pre- and post-surgical patients. Any small non-significant differences tracked with the age and sex differences.

l. Partially prospective, non-blinded, observational studies with cross-sectional designs that had no control groups

Leinung M, Urizar M, Patel N, Sood S. Endocrine treatment of transsexual persons: extensive personal experience. Endocr Pract. 2013 Jul-Aug;19(4):644-50. (United States study)

Leinung et al. conducted a partially prospective, non-blinded, observational study using a cross-sectional design and descriptive statistics. There were no formal controls. The investigators assessed employment, substance abuse, psychiatric disease, mood disorders, Human Immunodeficiency Virus (HIV) status in patients who had met WPATH guidelines for therapy, and who had initiated cross-sex hormone treatment.

A total of 242 patients treated for gender identity disorder in the clinic from 1992 through 2009 inclusive were identified. The number of those presenting for therapy almost tripled over time. Of these patients, 50 (20.7%) were female-to-male; 192 (79.3%) male-to-female (ratio 1:3.8).

The age of female-to-male and male-to-female patients with gender dysphoria at the time of clinic presentation was 29.0 and 38.0 years respectively.

The female-to-male and male-to-female patients with gender dysphoria at the time of hormone initiation were young: 27.5 and 35.5 years old respectively (p<0.5). Of the male-to-female cohort, 19 (7.8%) had received hormone therapy in the absence of physician supervision; 91 (37.6%) had undergone gender-reassignment surgery (32 female-to-male [64.0% of all female-to-male; 35.2% of all surgical patients]; 59 male-to-female [30.7% of all male-to-female; 64.8% of all surgical patients]; ratio 1:1.8).

Psychiatric disease was more common in those who initiated hormone therapy at an older age (>32 years) 63.9% versus 48.9% at a younger age and by natal gender (48.0% of female-to-male; 58.3% male-to-female). Mood disorders were more common in those who initiated hormone therapy at an older age (>32 years) 52.1% versus 36.0% at a younger age and this finding did not differ by natal gender (40.0% of female-to-male; 44.8% male-to- female). The presence of mood disorders increased the time to reassignment surgery in male-to-female patients. Of participants 36.4% were employed in jobs requiring a high school degree or less; 28.1% (excluding students) were on disability and/or unemployed. Rates of disability and unemployment were higher in male-to-female patients (31.8%) than female-to-male patients (14.0%). Mental health diagnoses reportedly were the major reason for disability. HIV infection and substance abuse were higher in male-to-female patients than female-to-male patients (8.3% versus 0% and 12.5% versus 6.0% respectively).

m. Retrospective, non-blinded, observational, longitudinal studies

Asscheman H, Giltay EJ, Megens JA, de Ronde WP, van Trotsenburg MA, Gooren LJ. A long-term follow-up study of mortality in transsexuals receiving treatment with cross-sex hormones. Eur J Endocrinol. 2011 Apr;164(4):635-42. Epub 2011 Jan 25.

Asscheman et al. conducted a retrospective, non-blinded, observational study of mortality using a longitudinal design of population treated with hormones, as well as, reassignment surgery and a population-based cohort. The investigators assessed mortality in patients who (a) were from a single-center, unspecified, university specialty clinic, (b) initiated cross-sex hormone treatment prior to July 1, 1997, and (c) had been followed by the clinic for at least 1 year or had expired during the first year of treatment. The National Civil Record Registry (Gemeentelijke Basis Administratie) was used to identify/confirm deaths of clinic patients. Information on the types or hormones used was extracted from clinic records, and information on the causation of death was extracted from medical records or obtained from family physicians. Mortality data for the general population was obtained through by the Central Bureau of Statistics of the Netherlands. Mortality data from Acquired Immune Deficiency Syndrome (AIDS) and substance abuse were extracted from selected Statistics Netherlands reports. The gender of the general Dutch population comparator group was the natal sex of the respective gender dysphoric patient groups.

A total of 1,331 patients who met the hormone treatment requirements were identified (365 female-to-male [27.4%]; 966 male-to-female [72.6%]; ratio 1:2.6). Of these, 1,177 (88.4%) underwent reassignment surgery (343 [94.0% of female-to-male entrants]; 834 [86.3% of male-to-female entrants]; ratio 1:2.4; p<0.0001). The mean age at the time of hormone initiation in female-to-male and male-to-female patients was young: 26.1±7.6 (range 16–56) years and 31.4±11.4 (range 16–76) years respectively, although the male-to-female subjects were relatively older (p<0.001). The mean duration of hormone therapy in female-to-male and male-to-female patients was 18.8±6.3 and 19.4±7.7 years respectively.

There were a total of 134 deaths in the clinic population using hormone therapy as well as reassignment surgery. Of the patients, 12 (3.3%) of the 365 female-to-male patients and 122 (12.6%) of the 966 male-to-female patients died. All-cause mortality was 51% higher and statistically significant (Standardized Mortality Ratio [SMR] 95% confidence interval [CI]) 1.47-1.55) for males-to-females when compared to females in the general Dutch population. The small increase in all-cause mortality (12%) for females-to-males when compared to males in the general Dutch population was not statistically significant; 95% CI 0.87-1.42.

The major known contributors to the mortality difference between male-to-female patients and the Dutch population at large were completed suicide (n=17, SMR 5.70 [95% CI 4.93-6.54]), AIDS (n=16, SMR 30.20 [95% CI 26.0-34.7), and illicit drug use (n=5, SMR 13.20 [95% CI 9.70-17.6]). An additional major contributor was “unknown cause” (n=21, SMR 4.00 [95% CI 3.52-4.51]). Of the 17 male-to-female hormone treated patients who committed suicide, 13 (76.5%) had received prior psychiatric treatment and 6 (35.3%) had not undergone reassignment surgery because of concerns about metal health stability.

Ischemic heart disease was a major disparate contributor to excess mortality in male-to-female patients in older patients (n=18, SMR 1.64 [95% CI 1.43-1.87], mean age [range]: 59.7 [42-79] years. Current use of aparticular type of estrogen, ethinyl estradiol, was found to contribute to death from myocardial infarction or stroke (Adjusted Hazard Ratio 3.12 [95% CI 1.28-7.63), p=0.01). There was a smaller, but statistically significant increase in lung cancer that was thought to possibly be related to higher rates of smoking in this cohort.

Although overall mortality was not increased in the hormone-treated female-to-male patients, there were more deaths due to illicit drug use than expected (SMR 25 [6.00-32.5]).

n. Retrospective, non-blinded, observational, longitudinal studies using matched national data

Dhejne C, Lichtenstein P, Boman M, Johansson A, Långström N, Landén M. Long-term follow-up of transsexual persons undergoing sex reassignment surgery: cohort study in Sweden. PLoS One. 2011;6(2):e16885. Epub 2011 Feb 22.

Dhejne et al. conducted a retrospective, non-blinded, observational study of nation-wide mortality using a longitudinal and a population-based matched cohort. The investigators assessed mortality, suicide attempts, psychiatric hospitalization, and substance abuse in gender-reassigned persons and randomly selected unexposed controls matched by birth year and natal sex (1:10) as well as by birth year and the reassigned gender (1:10). Data were extracted from national databases including the Total Population Register (Statistics Sweden), the Medical Birth Register, the Cause of Death Register (Statistics Sweden), the Hospital Discharge Register (National Board of Health and Welfare), the Crime Register (National Council of Crime), and those from the Register of Education for highest educational level. The criteria required to obtain the initial certificate for reassignment surgery and change in legal status from the National Board of Health and Welfare were not delineated, but included evaluation and treatment by one of 6 specialized teams, name change, a new national identity number, continued use of hormones, and sterilization/castration. Descriptive statistics with hazard ratios were provided. There were 804 patients identified with gender identity disorder (or related disorder) in Sweden during the period from 1973 to 2003 inclusive. Of these patients, 324 (40.3%) underwent gender-reassignment surgery (133 female-to-male [41.0%]; 191 male-to-female [59.0%]; ratio 1:1.4). The average follow-up time for all-cause mortality was 11.4 years (median 9.1). The average follow-up time for psychiatric hospitalization was 10.4 years (median 8.1).

The mean ages in female-to-male and male-to-female reassigned patients were: 33.3±8.7 (range 20–62) and 36.3± 10.1 (range 21–69) respectively. Immigrant status was two times higher in reassigned patients (n=70, 21.6%) than in either type of control (birth [natal] sex matched n=294 [9.1%] or reassigned gender matched n=264 [8.1%]). Educational attainment (10 or more years) was somewhat lower for reassigned patients (n=151 [57.8%]) than in either type of control (birth sex matched n=1,725 [61.5%] or reassigned gender matched n=1804 [64.3%]) (cohort data were incomplete). The biggest discordance in educational attainment was for female-to-male reassigned patients regardless of the control used. Prior psychiatric morbidity (which did not include hospitalization for gender dysphoria) was more than four times higher in reassigned patients (n=58, 17.9%) than in either type of control (birth sex matched n=123 [3.8%] or reassigned gender matched n=114 [3.5%]).

All-cause mortality was higher for patients who underwent gender reassignment surgery (n=27 [8.3%]) than in controls (hazard ratio 2.8 [1.8-4.3]) even after adjustment for covariants (prior psychiatric morbidity and immigration status). Divergence in the survival curves began at 10 years. The major contributor to this mortality difference was completed suicide (n=10 [3.1%]; adjusted hazard ratio 19.1 [5.8-62.9]). Mortality due to cardiovascular disease was modestly higher for reassigned patients (n=9 [2.8%]) than in controls (hazard ratio 2.5 [1.2-5.3]).

Suicide attempts were more common in patients who underwent gender reassignment surgery (n= 29 [9.0%] than in controls (adjusted hazard ratio 4.9 [2.9–8.5]). Male- to-female patients were at higher adjusted risk for attempted suicide than either control whereas female-to-male patients were at higher adjusted risk compared to only male controls and maintained the female pattern of higher attempted suicide risk. Hospitalizations for psychiatric conditions (not related to gender dysphoria) were more common in reassigned persons n= 64 [20.0%] than in controls (hazard ratio 2.8 [2.0–3.9]) even after adjusting for prior psychiatric morbidity. Hospitalization for substance abuse was not greater than either type of control. The increased risk for conviction of any crime or violent crime observed during the 1973-1988 interval was not seen later.

Dhejne C, Öberg K, Arver S, Landén M. An analysis of all applications for sex reassignment surgery in Sweden, 1960-2010: prevalence, incidence, and regrets. Arch Sex Behav. 2014 Nov;43(8):1535-45. Epub 2014 May 29 and Landén M, Wålinder J, Hambert G, Lundström B. Factors predictive of regret in sex reassignment. Acta Psychiatr Scand. 1998 Apr;97(4):284 (Dhejne et al., 2014; Landen et al., 1998) Sweden-All

Dhejne et al. conducted a non-blinded, observational study that was longitudinal for the capture of patients with “regret” in a national database. This same group (Landen et al., 1998) conducted a similar study along with retrospective acquisition of clinical data to explore the differences between the cohorts with and without regret. There were no external controls; only intra-group comparisons for this surgical series.

The investigators assessed the frequency of regret for gender reassignment surgery. Data were extracted from registries at the National Board of Health and Welfare to which patients seeking reassignment surgery or reversal of reassignment surgery make a formal application and which has maintained such records since a 1972 law regulating surgical and legal sex reassignment. The investigators reviewed application files from 1960 through 2010. The specific criteria to qualify for gender surgery were not delineated. Patients typically underwent diagnostic evaluation for at least 1 year. Diagnostic evaluation was typically followed by the initiation of gender confirmation treatment including hormonal therapy and real-life experience. After 2 years of evaluation and treatment, patients could make applications to the national board. Until recently sterilization or castration were the required minimal surgical procedures. (Dhejne et al., 2011) Secular changes in this program included consolidation of care to limited sites, changes in accepted diagnostic criteria, and provision of non-genital surgery, e.g., mastectomy during the real-life experience phase, and family support.

Of the 767 applicants for legal and surgical reassignment (289 [37.7%] female-to-male and 478 [62.3%] male-to-female; ratio 1:1.6]. The number of applicants doubled each ten year interval starting in 1981.

Of the applicants, 88.7% or 681 (252 [37.0%] female-to-male and 429 [63.0%] male-to-female; ratio 1:1.7] had undergone surgery and changed legal status by June 30, 2011. This number included eight (four [50.0%] female to-male and four [50.0%] male to female; ratio 1:1) people who underwent surgery prior to the 1972 law. (This number [6.0%] appears to include 41 (two [4.9%] female-to-male and 39 [95.1%] male-to-female; ratio 1:19.5) people who underwent surgery abroad at their own expense [usually in Thailand or the U.S.]. This cohort includes one person who was denied reassignment surgery by Sweden.)

Twenty-five (3.3%) of the applications were denied with the two most common reasons being an incomplete application or not meeting diagnostic criteria. An additional 61(8.0%) withdrew their application, were wait-listed for surgery, postponed surgery (perhaps in hopes of the later revocation of the sterilization requirement), or were granted partial treatment.

The formal application for reversal of the legal gender status, the “regret rate”, was 2.2%. No one who underwent sex-reassignment surgery outside of Sweden (36 of 41 after 1991) has requested reversal. The authors noted, however, that this preliminary number may be low because the median time interval to reversal request was eight years-only three of which had elapsed by publication submission- and because it was the largest serial cohort. This number did not include other possible expressions of regret including suicide (Dhejne et al., 2011).

Dhejne et al. in 2014 reported that the female-to-male: male-to-female ratio among those who made formal applications for reversal was 1:2. The investigators also reported that the female-to-male applicants for reversal were younger than the entire female-to-male cohort (median age 22 versus 27 years) while the male-to-female applicants for reversal were older than the entire male-to-female cohort (median age 35 versus 32 years). Other clinical data to explore the differences between the cohorts with and without regret were not presented in this update publication.

In their earlier publication, in addition to determining a regret rate (3.8%), Landen et al. extracted data from medical records and government verdicts. Logistic regression analyses were used identify relationships between variables. They observed that: (a) 25.0% of the cohort with regrets and 11.4% of the cohort without regrets were unemployed, (b) 16.7% of the cohort with regrets and 15.4% of the cohort without regrets were on “sick benefit”, (c) 15.4% of the cohort with regrets and 13.9% of the cohort without regrets had problems with substance abuse, (d) 69.2% of the cohort with regrets and 34.6% of the cohort without regrets had undergone psychiatric treatment, (e) 15.4% of the cohort with regrets and 8.8% of the cohort without regrets had a mood disorder, and (f) 15.4% of the cohort with regrets and 1.5% of the cohort without regrets had a psychotic disorder.

The putative prognostic factors that were statistically different (albeit without Bonferroni correction) between the cohorts with and without regret included prior psychiatric treatment, a history of psychotic disorder, atypical features of gender identity, and poor family support. Factors that trended towards statistical difference included having an unstable personality, sexual orientation and transvestitism. These variables were tested with logistic regression. Initial modeling included the variable “history of psychotic disorder”. Although this variable was predictive, it was excluded from future analyses because it was already a contraindication to reassignment surgery. Additional analyses identified poor family support as the most predictive variable and atypical features of gender identity as the second most important variable. Presence of both variables has a more than additive effect.

The nationwide mortality studies by Dhejne et al. 2011 includes much, if not all, of the Landen (1998) patient population and most of the Dhejne (2014) population.

o. Randomized, non-blinded, longitudinal, some patients served as their own controls

Mate-Kole C, Freschi M, Robin A. A controlled study of psychological and social change after surgical gender reassignment in selected male transsexuals. Br J Psychiatry. 1990 Aug;157:261-4.

Mate-Kole at al. conducted a prospective, non-blinded, controlled, randomized, longitudinal study using investigator-designed patient self-report questionnaires and non-specific psychological tests with some normative data. The investigators assessed neuroticism and sex role in natal males with gender dysphoria who had qualified for male-to-female reassignment surgery at a single-center specialty clinic. Forty sequential patients were alternately assigned to early reassignment surgery or to standard wait times for reassignment surgery. Patients were evaluated after acceptance and 2 years later. The criteria used to qualify for gender surgery were the 1985 standards from the Harry Benjamin International Gender Dysphoria Association. These included a ≥2 year desire to change gender, a ≥1 year demonstrable ability to live and be self-supporting in the chosen gender, and psychiatric assessment for diagnosis and reassessment at 6 months for diagnostic confirmation and exclusion of psychosis. Reassignment surgery was defined as orchidectomy, penectomy, and construction of a neo-vagina. The instruments used were the CCEI for psychoneurotic symptoms and the Bem Sex Role Inventory along with an incompletely described investigator-designed survey with questions about social life and sexual activity. The mean age and range of the entire cohort was 32.5 years (21-53).

Members of the early surgery cohort had a history of attempted suicide (one patient), psychiatric treatment for non-gender issues (six patients), and first degree relatives with psychiatric histories (four patients). Members of the standard surgery cohort were similar, with a history of attempted suicide (two patients), psychiatric treatment for non-gender issues (five patients), and first degree relatives with psychiatric histories (six patients). The early surgery group had surgery approximately 1.75 years prior to the follow-up evaluation. In both groups, cross-dressing began at about age 6.

At baseline, the Bem Sex Role Inventory femininity scores were slightly higher than masculinity scores for both cohorts and were similar to Bem North American female normative scores. The scores did not change in either group over time.

At baseline, the scores for the CCEI individual domains (free floating anxiety, phobic anxiety, somatic anxiety, depression, hysteria, and obsessionality) were similar for the cohorts. The total CCEI scores for the two cohorts were consistent with moderate symptoms. Over the 2 year interval, total CCEI scores increased for standard wait group and approached the relatively severe symptom category. During the same interval, scores dropped into the asymptomatic rage for the post-operative patients.

The investigator-designed survey assessed changes in social and sexual activity of the prior 2 years, but the authors only compared patients in a given cohort to themselves. Though the researchers did not conduct statistical studies to compare the differences between the 2 cohorts, they did report increased participation in some, but not all, types of social activities such as sports (solo or group), dancing, dining out, visiting pubs, and visiting others. Sexual interest also increased. By contrast, pre-operative patients did not increase their participation in these activities. Work status remained the same for post-operative patients which unemployment increased in the standard wait pre-operative cohort.

2.  External Technology Assessments

a. CMS did not request an external technology assessment (TA) on this issue.

b. There were no AHRQ reviews on this topic.

c. There are no Blue Cross/Blue Shield Health Technology Assessments written on this topic within the last three years.

d. There were two publications in the COCHRANE database, and both were tangentially related.

Both noted that there are gaps in the clinical evidence base for gender reassignment surgery.

Twenty Years of Public Health Research: Inclusion of Lesbian, Gay, Bisexual, and Transgender Populations Boehmer U. Am J Public Health . 2002; 92: 1125–30.

“Findings supported that LGBT issues have been neglected by public health research and that research unrelated to sexually transmitted diseases is lacking.”

A systematic review of lesbian, gay, bisexual and transgender health in the West Midlands region of the UK compared to published UK research . West Midlands Health Technology Assessment Collaboration. Health Technology Assessment Database. Meads, et al., 2009. No.3.

“Further research is needed but must use more sophisticated designs with comparison groups. This systematic review demonstrated that there are so many gaps in knowledge around LGBT health that a wide variety of studies are needed.”

e. There were no National Institute for Health and Care Excellence (NICE) reviews/guidance documents on this topic.

f. There was a technology assessment commissioned by the New Zealand Ministry of Health and conducted by New Zealand Health Technology Assessment (NZHTA) (Christchurch School of Medicine and the University of Otago).

Tech Brief Series: Transgender Re-assignment Surgery Day P . NZHTA Report . February 2002;1(1). http://nzhta.chmeds.ac.nz/publications/trans_gender.pdf

The research questions included the following: (1) Are there particular subgroups of people with transsexualism who have met eligibility criteria for gender reassignment surgery (GRS) where evidence of effectiveness of that surgery exists? And (2) If there is evidence of effectiveness, what subgroups would benefit from GRS?” Based upon the research, “Some 593 possibly relevant articles in abstract form were identified of which 70 articles were retrieved in full text.”

The NZHTA stated, “The reviewed studies may indicate that early, rather than delayed, sex reassignment surgery is of greater benefit to transsexual people who have gone through rigorous assessment procedures and have been accepted for surgery. Also, the reviewed studies identify characteristics of groups defined as core and non-core transsexual people, but these characteristics are heterogeneous and anecdotal.”

The NZHTA also stated, “Gender reassignment surgery may benefit some carefully assessed and selected transsexual people who have satisfied recognized diagnostic and eligibility criteria, and have received recognized standards of care for surgery. More research is required to improve the evidence base identifying the subgroups of transsexual people most likely to benefit from sex reassignment surgery.”

3.  Medicare Evidence Development & Coverage Advisory Committee (MEDCAC) Meeting

CMS did not convene a MEDCAC meeting.

4.  Evidence-Based Guidelines

a. American College of Obstetricians and Gynecologists (ACOG)

Though ACOG did not have any evidence-based guidelines on this topic, they did have the following document:

Health Care for Transgender Individuals: Committee Opinion

Committee on Health Care for Underserved Women; The American College of Obstetricians and Gynecologists. Dec 2011, No. 512. Obstet Gyncol. 2011;118:1454-8.

“Questions [on patient visit records] should be framed in ways that do not make assumptions about gender identity, sexual orientation, or behavior. It is more appropriate for clinicians to ask their patients which terms they prefer. Language should be inclusive, allowing the patient to decide when and what to disclose. The adoption and posting of a nondiscrimination policy can also signal health care providers and patients alike that all persons will be treated with dignity and respect. Assurance of confidentiality can allow for a more open discussion, and confidentiality must be ensured if a patient is being referred to a different health care provider. Training staff to increase their knowledge and sensitivity toward transgender patients will also help facilitate a positive experience for the patient.”

b. American Psychiatric Association

Report of the American Psychiatric Association Task Force on Treatment of Gender Identity Disorder Byne, W, Bradley SJ, Coleman E, Eyler AE, Green R, Menvielle EJ, Meyer-Bahlburg HFL, Richard R. Pleak RR, Tompkins DA. Arch Sex Behav . 2012; 41:759–96.

The American Psychiatric Association (APA) was unable to identify any Randomized Controlled Trials (RTCs) regarding mental health issues for transgender individuals.

"There are some level B studies examining satisfaction/regret following sex reassignment (longitudinal follow-up after an intervention, without a control group); however, many of these studies obtained data retrospectively and without a control group (APA level G). Overall, the evidence suggests that sex reassignment is associated with an improved sense of well-being in the majority of cases, and also indicates correlates of satisfaction and regret. No studies have directly compared various levels of mental health screening prior to hormonal and surgical treatments on outcome variables; however, existing studies suggest that comprehensive mental health screening may be successful in identifying those individuals most likely to experience regrets."

Relevant Descriptions of APA Evidence Coding System/Levels:

[B] Clinical trial. A prospective study in which an intervention is made and the results of that intervention are tracked longitudinally. Does not meet standards for a randomized clinical trial.”

[G] Other. Opinion-like essays, case reports, and other reports not categorized above.”

c. Endocrine Society

Endocrine Treatment of Transsexual Persons: an Endocrine Society Clinical Practice Guideline.

Hembree WC, Cohen-Kettenis P, Delemarre-van de Waal HA, Gooren LJ, Meyer WJ 3rd, Spack NP, Tangpricha V, Montori VM; Endocrine Society. J Clin Endocrinol Metab . 2009;94:3132-54.

This guideline primarily addressed hormone management and surveillance for complications of that management. A small section addressed surgery and found the quality of evidence to be low.

“This evidence-based guideline was developed using the Grading of Recommendations, Assessment, Development, and Evaluation (GRADE) system to describe the strength of recommendations and the quality of evidence, which was low or very low.”

d. World Professional Association for Transgender Health (WPATH)

Standards of Care for the Health of Transsexual, Transgender, and Gender-Nonconforming People (Version 7) . Coleman E, Bockting W, Botzer M, Cohen-Kettenis P, DeCuypere G, Feldman J, Fraser L, Green J, Knudson G, Meyer WJ, Monstrey S, Adler RK, Brown GR, Devor AH, Ehrbar R, Ettner R, Eyler E, Garofalo R, Karasic DH, Lev AI, Mayer G, Meyer-Bahlburg H, Hall BP, Pfäfflin F, Rachlin K, Robinson B, Schechter LS, Tangpricha V, van Trotsenburg M, Vitale A, Winter S, Whittle S, Kevan R. Wylie KR, Zucker K. www.wpath.org/_files/140/files/Standards%20of%20Care,%20V7%20Full%20Book.pdf Int J Transgend. 2011;13:165–232.

The WPATH is “an international, multidisciplinary, professional association whose mission is to promote evidence-based care, education, research, advocacy, public policy, and respect in transsexual and transgender health.”

WPATH reported, “The standards of care are intended to be flexible in order to meet the diverse health care needs of transsexual, transgender, and gender-nonconforming people. While flexible, they offer standards for promoting optimal health care and guiding the treatment of people experiencing gender dysphoria—broadly defined as discomfort or distress that is caused by a discrepancy between a person’s gender identity and that person’s sex assigned at birth (and the associated gender role and/or primary and secondary sex characteristics) (Fisk, 1974; Knudson, De Cuypere, & Bockting, 2010b).”

The WPATH standards of care (SOC) “acknowledge the role of making informed choices and the value of harm-reduction approaches.”

The SOC noted, “For individuals seeking care for gender dysphoria, a variety of therapeutic options can be considered. The number and type of interventions applied and the order in which these take place may differ from person to person (e.g., Bockting, Knudson, & Goldberg, 2006; Bolin, 1994; Rachlin, 1999; Rachlin, Green, & Lombardi, 2008; Rachlin, Hansbury, & Pardo, 2010). Treatment options include the following:

• Changes in gender expression and role (which may involve living part time or full time in another gender role, consistent with one’s gender identity);
• Hormone therapy to feminize or masculinize the body;
• Surgery to change primary and/or secondary sex characteristics (e.g., breasts/chest, external and/or internal genitalia, facial features, body contouring);
• Psychotherapy (individual, couple, family, or group) for purposes such as exploring gender identity, role, and expression; addressing the negative impact of gender dysphoria and stigma on mental health; alleviating internalized transphobia; enhancing social and peer support; improving body image; or promoting resilience.”

The SOC were carefully reviewed because they are frequently cited as the basis of management by clinicians, including some of the clinical groups with whom CMS spoke used it as a flexible guide. In the WPATH’s SOC Appendix D titled “Evidence for Clinical Outcomes of Therapeutic Approaches,” WPATH noted, “One of the real supports for any new therapy is an outcome analysis. Because of the controversial nature of sex reassignment surgery, this type of analysis has been very important. Almost all of the outcome studies in this area have been retrospective.” They further reported, “More studies are needed that focus on the outcomes of current assessment and treatment approaches for gender dysphoria.”

e. American Psychological Association

Suggested citation until formally published in the American Psychologist : American Psychological Association. (2015): Guidelines for Psychological Practice with Transgender and Gender Nonconforming People Adopted by the Council of Representatives, August 5 & 7, 2015. www.apa.org/practice/guidelines/transgender.pdf

“The purpose of the Guidelines for Psychological Practice with Transgender and Gender Nonconforming People (hereafter Guidelines) is to assist psychologists in the provision of culturally competent, developmentally appropriate, and trans‐affirmative psychological practice with TGNC people.”

“These Guidelines refer to psychological practice (e.g., clinical work, consultation, education, research, training) rather than treatment.”

5.  Other Reviews

a. Institute of Medicine (IOM)

The Health of Lesbian, Gay, Bisexual, and Transgender People: Building a Foundation for Better Understanding. Robert Graham (Chair); Committee on Lesbian, Gay, Bisexual, and Transgender Health Issues and Research Gaps and Opportunities. (Study Sponsor: The National Institutes of Health). Issued March 31, 2011. http://www.nationalacademies.org/hmd/Reports/2011/The-Health-of-Lesbian-Gay-Bisexual-and-Transgender-People.aspx

“To advance understanding of the health needs of all LGBT individuals, researchers need more data about the demographics of these populations, improved methods for collecting and analyzing data, and an increased participation of sexual and gender minorities in research. Building a more solid evidence base for LGBT health concerns will not only benefit LGBT individuals, but also add to the repository of health information we have that pertains to all people.”

“Best practices for research on the health status of LGBT populations include scientific rigor and respectful involvement of individuals who represent the target population. Scientific rigor includes incorporating and monitoring culturally competent study designs, such as the use of appropriate measures to identify participants and implementation processes adapted to the unique characteristics of the target population. Respectful involvement refers to the involvement of LGBT individuals and those who represent the larger LGBT community in the research process, from design through data collection to dissemination.”

b. National Institutes of Health (NIH)

National Institutes of Health Lesbian, Gay, Bisexual, and Transgender (LGBT) Research Coordinating Committee. Consideration of the Institute of Medicine (IOM) report on the health of lesbian, gay, bisexual, and transgender (LGBT) individuals . Bethesda, MD: National Institutes of Health; 2013. http://report.nih.gov/UploadDocs/LGBT%20Health%20Report_FINAL_2013-01-03-508%20compliant.pdf

In response to the IOM report, the NIH LBGT research Coordinating Committee noted that most of the health research for this set of populations is “ focused in the areas of Behavioral and Social Sciences, HIV (human immunodeficiency virus)/AIDS, Mental Health, and Substance Abuse. Relatively little research has been done in several key health areas for LGBT populations including the impact of smoking on health, depression, suicide, cancer, aging, obesity, and alcoholism.”

6.  Pending Clinical Trials

ClinicalTrials.gov There is one currently listed and recently active trial directed at assessment of the clinical outcomes pertaining to individuals who have had gender reassignment surgery. The study appears to be a continuation of work conducted by investigators cited in the internal technology assessment.

NCT01072825 (Ghent, Belgium sponsor) European Network for the Investigation of Gender Incongruence (ENIGI) is assessing the physical and psychological effects of the hormonal treatment of transgender subjects in two years prior to reassignment surgery and subsequent to surgery. This observational cohort study started in 2010 and is still in progress.

7.  Consultation with Outside Experts

Consistent with the authority at 1862(l)(4) of the Act, CMS consulted with outside experts on the topic of treatment for gender dysphoria and gender reassignment surgery.

Given that the majority of the clinical research was conducted outside of the United States, and some studies took place in a or suggested continuity-of-care and coordination-of-care were beneficial to health outcomes, we conducted expert interviews with centers across the U.S. that provided some form of specialty-focused or coordinated care for transgender patients. These interviews informed our knowledge about the current healthcare options for transgender people, the qualifications of the professionals involved, and the uniqueness of treatment options. We are very grateful to the organizations that made time to discuss treatment for gender dysphoria with us.

From our discussions with the all of the experts we spoke with, we noted the following practices in some centers: (1) specialized training for all staff about transgender healthcare and transgender cultural issues; (2) use of an intake assessment by either a social worker or health care provider that addressed physical health, mental health, and other life factors such as housing, relationship, and employment status; (3) offering primary care services for transgender people in addition to services related to gender-affirming therapy/treatments; (4) navigators who connected patients with name-change information or other legal needs related to gender; (5) counseling for individuals, groups, and families; (6) an informed-consent model whereby individuals were often referred to as “clients” instead of “patients,” and (7) an awareness of depression among transgender people (often measured with tools such as the Adult Outcomes Questionnaire and the Patient Health Questionnaire (8) and how, in some instances, with hormone treatment for gender dysphoria, the depression lessens.

8.  Public Comments

Initial Comment Period: 12/03/2015 – 01/02/2016

During the initial comment period, we received 103 comments. Of those, 78% supported coverage of gender reassignment surgery, 15% opposed, and 7% were neutral. The majority of comments supporting coverage were from individuals and advocacy groups. All of the initial public comments are available at: https://www.cms.gov/medicare-coverage-database/details/nca-view-public-comments.aspx?NCAId=282&ExpandComments=n&bc=ACAAAAAAAgAAAA%3d%3d&

VIII. CMS Analysis

National coverage determinations are determinations by the Secretary with respect to whether or not a particular item or service is covered nationally under § 1862(l)(6) of the Act. In general, in order to be covered by Medicare, an item or service must fall within one or more benefit categories contained within Part A or Part B and must not be otherwise excluded from coverage. Moreover, in most circumstances, the item or service must be reasonable and necessary for the diagnosis or treatment of illness or injury or to improve the functioning of a malformed body member (§1862(a)(1)(A)). The Supreme Court has recognized that “[t]he Secretary’s decision as to whether a particular medical service is ‘reasonable and necessary’ and the means by which she implements her decision, whether by promulgating a generally applicable rule or by allowing individual adjudication, are clearly discretionary decisions.” Heckler v. Ringer, 466 U.S. 602, 617 (1984). See also, 78 Fed. Reg. 48,164, 48,165 (August 7, 2013)

When making national coverage determinations, we consider whether the evidence is relevant to the Medicare beneficiary population. In considering the generalizability of the results of the body of evidence to the Medicare population, we carefully consider the demographic characteristics and comorbidities of study participants as well as the provider training and experience. This section of the proposed decision provides an analysis of the evidence, which included the published medical literature and guidelines pertaining to gender dysphoria, that we considered during our review to answer the question:

A. Analysis

1. Study Demographics

These studies were conducted in a total of 13 countries. Most were conducted in Europe (a total of 24 in Europe: Belgium four, Germany four, Holland two, Norway one, Spain two, Sweden four, Switzerland three, the United Kingdom three [not including the Barrett, 1998 study and the duplicative Megeri, Khoosal, 2007 study], and Yugoslavia one). One was in Asia (Singapore); one in South America (Brazil). Seven were conducted in North America (U.S. six, Canada one). One of the North American studies was a U.S.-conducted internet survey with non-U.S. and U.S. participants with a sub-analysis of the U.S. patients (Newfield et al., 2006).

All of the studies, with the exception of a national-wide mortality study (Dhejne et al., 2011), the international internet survey (Newfield et al., 2006), and the internet/convention site survey (Ainsworth, Spiegel, 2010), were conducted with patient populations from single sites. Many of these clinical centers cited in these studies were specialized tertiary referral centers offering comprehensive, integrated (psychiatric-psychological, endocrine, and surgical) care and whose staff could have been involved in both the patient care and the study. Of the studies reviewed, the Lawrence, 2006 study was conducted by a physician psychologist who surveyed the patient population of a single U.S. surgeon. The Ainsworth, Spiegel, 2010 study was conducted by a U.S. otolaryngologist with extensive surgery training who assessed the impact of facial feminization on transgender patients. The Hess et al. 2014 study was undertaken at a German university urologic specialty clinic. The Wolfradt, Neumann, 2001 study was conducted in Germany by a university otorhinolaryngologist and psychologist on patients who had undergone vocal cord surgery after reassignment surgery. The Ruppin, Pfafflin 2015 study was undertaken by investigators who had seen the patients in a German forensic psychotherapy clinic.

2. Patient Population

Demographic assessments of the studies revealed that the mean ages of participants were in the 20s and 30s. (See Appendix C and Appendix D). Even when including standard deviation, most patients included in the study were under the age 60. Age of participants in the reviewed studies is important to assess generalizability to the Medicare population which is comprised predominantly of adults’ age 65 years and older. While certain younger disabled adults are included in Medicare, generalizability of studies performed outside in the U.S. is likely reduced further since criteria to determine disability is unique to Medicare. When reporting ages of patients participating in studies, studies included mean age of population, but often failed to reveal standard deviation of the population. Most studies reported pre and post gender reassignment surgery ages, though some studies only reported post-surgery ages (Dehjne, 2011; Kuhn et al., 2009; Rakic et al., 1996; Ruppin, Pfafflin, 2015; Udeze et al., 2008; Megeri, Khoosal, 2007; Wolfradt, Neumann, 2001; Blanchard et al., 1985; Weyers et al., 2009; Wierckx et al., 2011; Eldh et al., 1997; Hess et al., 2014; Lawrence, 2006; Salvador et al., 2012; Tsoi, 1993).

There was extensive lack of study participation and loss to follow-up in the published studies. (See Appendix C and Appendix G). This suggests that the population that seeks evaluation/treatment for gender dysphoria and/or applies for reassignment surgery is not the same population that undergoes reassignment surgery without hesitation or regret. The notable numbers of incomplete questionnaires similarly raises questions. This selection bias limits generalizability of any results.

3. Study Design

As noted earlier, a number of research designs were found when exploring the question, “Does gender reassignment surgery improve health outcomes for Medicare beneficiaries with gender dysphoria?” (See Appendix C). The vast majority of studies found were observational in nature though there was a single randomized trial (Mate-Kole et al., 1990) (see Figure 1). Two of the studies were blinded. (Hess, 2014; Lawrence, 2006) A total of 29 studies were not blinded. The blinding status of the two internet surveys is unknown (Ainsworth, Spiegel, 2010; Newfield et al., 2006).

Observational studies can be prospective, retrospective, or have components of both. But each observational study design has limitations, and may not be able to show the true association between gender/reassignment surgery and improved health outcomes. Limitations of observational studies include that they frequently generate unreliable findings, and they also generate bias; because of confounding, causal inferences cannot reliably be drawn. Thus these types of studies are limited in terms of evidentiary weight. Only a true experimental study (e.g., randomized clinical trial) has the potential to demonstrate a causal relationship between two factors.

In general, one of the advantages of prospective studies is that they could potentially help determine factors associated with improved outcomes due to their longitudinal observation over time, and the collection of results at regular time intervals minimizes recall error. However, retrospective studies have problems including: some key statistics cannot be measured, significant biases including selection bias, recall bias, and information bias may limit a retrospective study’s applicability. Another problem with retrospective studies is that the temporal relationship between variables is frequently difficult to assess. Finally, it is difficult to control exposure or outcome assessment in a retrospective study design.

Studies that use controls as part of its research design have higher evidentiary weight than studies that lack controls. That is because the use of controls can help to eliminate the possibility of confounding. But controls by themselves are no guarantee of complete validity. In terms of the use of controls in these studies that we evaluated some studies had no concurrent controls; some studies used control groups, but they were not concurrent; some studies used semi-matched controls; and in other studies patients served as their own controls.

Seventeen observational studies, of which 10 used longitudinal and 7 used cross-sectional study designs, had formal control groups. In this group of studies, the cross-sectional studies used various controls including healthy volunteers and patients with other disorders or treatments. In this same group of studies, the longitudinal studies used various controls including the patients as their own serial control, other treatment groups in addition to having patients serve as their own controls, and control cohorts derived from national databases. Among the longitudinal studies with used patients as their own controls, 4 used self-report test instruments that were validated in large populations. Of these 4, 1 had more than 100 subjects, self-reported and others, or other cohorts using either national data or national registries. Some observational studies included in this analysis had surgery-only populations and used no controls, or used indirect controls incorporating normative testing. The remainder of the observational studies had mixed populations that included surgical patients and patients using other treatments or patients treated with non-genital gender reassignment surgical procedures. The studies that included groups with mixed populations either had no controls, or used indirect controls (statistical methods included ANOVA, correlation, or regression).

Our review included 25 prospective studies. Of these prospective studies, two used a retrospective approach to acquire data for a single parameter (Eldh et al., 1997; Johansson et al., 2009); one prospective study used a retrospective approach to acquire data for several parameters (Ruppin, Pfafflin, 2015); and one study used a prospective approach beginning in 2003, but used a retrospective approach for data accumulated prior to that year (Leinung et al., 2013).

We found three retrospective studies (Asscheman et al., 2011; Dhejne et al., 2011; Landen et al., 1998). One study had at least a partially retrospective component, but with insufficient information to determine whether any of the data were obtained prospectively (Haraldsen, Dahl, 2000).

There were 11 longitudinal studies (Asscheman et al., 2011; Dhejne et al., 2011; Heylens et al., 2014; Kockott, Fahrner, 1987; Landen et al., 1998; Mate-Kole et al., 1979; Rakic et al., 1996; Ruppin, Pfafflin, 2015; Smith et al., 2005; Udeze et al,, 2008). Ten of the longitudinal studies occurred in the group of studies with a designated control group (all of the above with the exception of Asscheman et al., 2011). In seven of the 11 longitudinal studies, the patients served as their own control over time before and after surgery (Heylens et al., 2014; Kockott, Fahrner, 1987; Meyer, Reter, 1979; Rakic et al., 1996; Ruppin, Pfafflin, 2015; Smith et al., 2005; Udeze et al., 2008).

There were 19 cross-sectional studies (Ainworth, 2010; Haraldsen, Dahl, 2000; Beatrice, 1985; Kraemer et al., 2008; Kuhn et al., 2009; Mate-Kole et al., 1988; Wolfradt, Neumann, 2001; Blanchard et al., 1985; Weyers et al., 2009; Wierckx et al., 2011; Eldh et al., 1997; Hess et al., 2014; Lawrence, 2006; Salvador et al., 2012; Tsoi, 1993; Gómez-Gil et al., 2012, Hepp et al., 2005; Motmans et al., 2012; Newfield et al., 2006; Gómez-Gil et al., 2013; Johansson et al., 2009; Leinung et al., 2013). Of this number, two were cross-sectional with the exception of data collection for aspects of a single parameter that had occurred in the past (Eldh et al., 1997; Johansson et al., 2009), and one study asked participants to recall the status of a parameter prior to treatment (Wierckx et al., 2011a).

Seventeen of the studies had explicit control groups. Of the studies with explicit control groups, two studies derived controls from national databases (Dhejne et al., 2011 and 2014; Landen et al., 1998); five studies used the patients themselves as longitudinal controls (Heylens 2014a; Rakic et al. 1996; Ruppin, Pfafflin, 2015; Smith et al., 2005a; Udeze et al., 2008; Megeri 2007); eight used various other controls (Ainsworth, Spiegel, 2010; Beatrice 1985; Haraldsen, Dahl, 2000; Kraemer et al., 2008; Kuhn et al., 2009; Mate-Kole et al., 1988 and 1990; Wolfradt, Neumann, 2001); and two studies used both treatment-type cohorts and patients themselves as controls (Kockott, Fahrner, 1987; Meyer, Reter 1979).

A number of studies consisted of surgical series, but in these studies there were no concurrent controls (Wierckx et al., 2011; Salvador et al., 2012; Blanchard et al., 1985; Tsoi, 1993; Eldh et al., 1997; Hess et al., 2014; Lawrence, 2006; Weyers, 2009a). In three surgical series normative data from psychometric instruments were used as the control (Blanchard et al., 1985a; Weyers 2009a; Wierckx et al., 2011b). In five surgical series, controls were lacking (except for the use of serial employment data in the Eldh et al. 1997 study) (Eldh et al., 1997; Hess 2014; Lawrence 2006; Salvador 2012; Tsoi, 1993).

Patients underwent a variety of surgical interventions in five studies. There were no controls. The role of surgical intervention was assessed indirectly post hoc by statistical techniques (analysis of variance and regression) (Gomez-Gil et al., 2012 and 2014; Hepp et al., 2005; Motmans et al., 2011; Newfield et al., 2006).

As mentioned in previous paragraphs, some prospective studies included in this analysis were cross-sectional in nature, and consisted of treated cohorts using a normative test, or a treatment cohort along with volunteer healthy cohorts. However, as we have noted, cross-sectional studies also have their limitations, including inability to determine temporal relationship between exposure and outcome (lacks time element). In other words, findings noted in a cross-sectional design cannot be inferred, because only current health and exposure to interventions are being studied. Also measurement error is an issue. Longitudinal studies with controls are most appropriate for determining this relationship between exposure and outcomes.

Observational studies have limitations. The lack of blinding has the potential to interfere with patient reported outcomes, which by their nature are subjective. Observational studies are prone to selection bias. Patients who seek treatment may not be the same as those who complete treatment-particularly if there are serial steps in the treatment process. (See Appendix G) Cross-sectional studies are prone to confounding. The impact of a particular step in a multi-faceted treatment process cannot be ascertained. The lack of a control group does not permit attribution of any outcome change to a specific intervention. There were seven studies where the patients themselves serve as longitudinal controls. The lack of a control makes it difficult to assess the results because there is not another group to make comparisons.

4. Psychometric Measurement Tools

There is also myriad use of measurement tools to assess patients suffering with gender dysphoria. (See Appendix E for a list of Psychometric Measurement tools.)

Some of the domains addressed in psychometric measurement tools measure the degree of depression and anxiety, body imagery, quality of life, identity traits, general wellbeing, physical and psychological function, self-concept, and others. Some of these measurement tools have been validated for patients with this condition, while others have been validated for other medical conditions. Some of the measurement tools found in this assessment were self-developed and there is no mention of validity when trying to determine if the test reliably measures what it is intended to measure.

5. Study Endpoints

A wide variety of study endpoints were used. Endpoints were collected from a number of sources, including self-reporting, clinician assessment, and medical records as well national databases. Some of the endpoints included patient reported quality of life (QOL) as manifest by psychometric testing, sense of well-being, body imagery, anxiety and depression, sexual function and satisfaction, and social function. Objective endpoints included employment status, psychiatric function, and morbidity and mortality as well as adverse events.

Thirty of the studies employed 31 psychometric tools or investigator designed self-report surveys. (See Appendix E) Twenty investigators designed their own measurement tools or modified those of others.

External information on test validity, the size/composition of the reference population(s), diagnostic cut-points, and scoring was often not available because it was unpublished, proprietary, or in a non-English language. Six of the instruments, all non-specific, (the European QOL Survey, MMPI, SF-36, SCL-90, TSCS, and WHO-QOL-BREF), appear to have substantive normative data for comparative scoring (i.e., reference populations (≥1000) and obtained through representative sampling). Although these tools had been validated in a reference population, none had been validated in populations with gender dysphoria. Furthermore the investigators did not provide diagnostic cut-points and did not pre-specify the magnitude of test score change or test score difference considered to be biologically significant so the clinical importance could not be easily ascertained.

Only four investigator groups used only these psychometric tools validated in other large populations as their test instrument (Beatrice, 1985; Haraldsen, Dahl, 2000; Motmans et al., 2012; Newfield et al., 2006). Nine investigator groups used a mix of psychometric tools validated in large normative populations, less well validated tools, and/or self-designed tools (Ainsworth, Spiegel, 2010; Blanchard et al., 1985a; Gomez-Gil et al., 2014; Heylens 2014a; Ruppin, Pfafflin, 2015; Smith et al., 2005a (Udeze et al., 2008; Megeri 2007; Weyers 2009a; Wierckx et al., 2011b). Nine investigators used self-designed tools as their only test instrument (Eldh et al., 1997; Hess 2014; Johansson et al, 2009; Kockott, Fahrner, 1987; Lawrence, 2006; Meyer, Reter 1979; Rakic 1996; Salvador 2012; Tsoi 1993). A single investigator did not use any type of testing tool and provided only descriptive statistics (Leinung et al., 2013).

Three studies reported on complications linked or possibly linked to hormone treatment (Asscheman et al., 2011; Dhejne et al., 2011; Leinung et al., 2013), six studies reported on complications from reassignment surgery (Eldh et al., 1997; Lawrence, 2006; Ruppin, Pfafflin, 2015; Smith et al., 2005; Weyers et al., 2009; Wierckx et al., 2011). One study reported on serious and formalized regret for undergoing reassignment surgery (Landen et al., 1998), and one study reported on a patient with suicidal ideation who requested phallus removal (Meyer, Reter, 1979). Others reported on less severe or less formalized levels of regret. Five studies reported on the treatment or diagnosis of psychiatric disease (Dhejne et al., 2011; Haraldsen, Dahl, 2000; Hepp et al., 2005; Landen et al., 1998; Leinung et al., 2013; Meyer, Reter, 1979; Ruppin, Pfafflin, 2015; Udeze et al., 2008). Two studies reported on the history of psychiatric disease in their patient populations (Matte-Kole, 1988; Matte Kole, 1990).

Four studies reported on suicide attempts (Dehjne et al., 2011; Eldh et al., 1997; Heylens et al., 2013; Kockott, Fahrner, 1987), two studies reported on the history of suicide attempts in their patient population (Matte-Kole, 1988; Matte Kole, 1990). Three studies reported on suicide, of which one of them occurred incidentally (Asscheman et al., 2011; Blanchard et al., 1985; Dhejne et al., 2011). Two studies also reported on mortality (Asscheman et al., 2011; Dhejne et al., 2011).

There was a great degree of inconsistency in endpoints. Also endpoints were collected from a number of sources, including self-reporting, clinician assessment, and medical records as well national databases. Endpoints lacked operational definitions thus making their applicability difficult. CMS is interested in knowing what patients diagnosed with gender dysphoria believe are important endpoints that should be studied.

Mortality and Regret as Endpoints

Certain kinds of objective outcomes can be assessed by other types of study designs-albeit somewhat less robust. These include mortality and regret (as manifest by request for surgical reversal) when the data are rigorously prospectively collected in a comprehensive registry for all patients who have met specified entry criteria and treatment criteria.

More specifically, Swedish investigators extracted data from registries at the National Board of Health and Welfare to which all patients seeking reassignment surgery or reversal of reassignment surgery must make formal application. In the initial 1998 study, of the 233 applicants for reassignment surgery between July 1972 and June 1992, 20 were denied surgery, and subsequently 13 (3.8%) surgical patients requested return to the natal sex (Landen et al., 1998). In the 2014 follow-up study, of the 767 applicants for reassignment surgery or a change in legal status after surgery between 1960-2010, 86 were denied, and subsequently 15 (2.2%) requested reversal to the natal gender (Dhejne et al., 2014). Although the data from the two studies are not directly comparable because of the much shorter follow-up period in the latter study and although the analyses also did not consider other possible expressions of regret including suicide, the studies suggest that the majority of highly vetted patients in a structured care system do not express regret as defined by a formal request for return to natal gender status (Dhejne et al., 2011). The study, however, cannot assess the impact of gender reassignment surgery per se because of the confounding introduced by the other interventions.

Swedish investigators also conducted the most comprehensive study with functional endpoints of the 33 studies reviewed. This study relied on compulsory national databases (Dhejne et al., 2011) tracked all patients who had undergone reassignment surgery (at a mean age 35.1 years) over a 30 year interval and compared them to 6480 matched controls from the general population. They identified both increased mortality and increased psychiatric hospitalization. The mortality was primarily due to completed suicides (19.1-fold greater), but death due to neoplasm and cardiovascular disease was increased 2 to 2.5 times as well. The divergence in mortality from the Swedish population did not become apparent until after 10 years. The risk for psychiatric hospitalization was 2.8 times greater than in control Swedes even after adjustment for prior psychiatric disease (18%). The risk for attempted suicide was greater in male-to-female patients regardless of the sex of the control. For the same reasons as delineated above, this study cannot assess the impact of gender reassignment surgery per se because of the confounding introduced by the other interventions. The finding of this study demonstrated that reassignment surgery does not return patients to a normal level of morbidity risk and that the morbidity risk is significant even in highly vetted patients in a structured care system.

B. Discussion

The question addressed in this NCD is whether there is sufficient evidence to conclude that gender reassignment surgery improves health outcomes for Medicare beneficiaries with gender dysphoria.

Gender dysphoria by the latest and prior nomenclature is a state in which there is incongruence between the gender assigned at birth and the gender(s) with which the person identifies. This incongruence may result in varying degrees of discontent and distress. Satisfaction and quality-of-life are well recognized as “latent variables” (hypothetical constructs) which cannot be measured directly (Borsboom et al., 2003; Newsom, 2015). As such, observable entities are used to infer or approximate satisfaction and/or quality-of-life. It may be challenging to identify parameters that truly reflect the nature and the magnitude of dysphoria in the individual. This challenge is followed by the need to know to what extent a specific test measures that which it purports to measure (test validity) and whether repeat testing will yield a comparable answer (test reliability).

The investigators of the clinical research reviewed in this NCD have attempted to measure dysphoria levels by objective data elements and by use of various psychometric and function scales/surveys. The objective data elements include a number of variables such as employment, morbidity, and formal requests for surgical reversal.

The psychometric tools used to assess outcomes have limitations. Many of the instruments that are most specific for the condition were designed by the investigators themselves or by other investigators in the field. In addition, the relevant diagnostic cut-points for scores and changes in scores that are clinically significant should be delineated to permit adequate interpretation of test results. As such, these studies were not definitive in nature.

Other factors might impact the utility of a given test. Patients undergo serial evaluations and a sequence of treatments (Bockting et al., 2011). These other interventions may reduce internal validity of the test. The affirmation and support obtained in psychotherapy-psychiatric care, the adjustment confidence gained in real life cross-gender behavior, and/or the physical and mental changes from hormone therapy may be (an) alternative cause(s) of the findings. Several studies suggest that there is a major therapeutic benefit from hormone therapy (Colizzi et al., 2013; Gómez-Gil et al., 2011; Gorin-Lazard et al., 2011, 2013; Heylens et al., 2014; Dubois, 2012). Another suggests that there is therapeutic benefit from time in the preferred gender role without other intervention (Greenberg, Laurence, 1981). As such, results from cross-sectional studies may be misleading. None of the studies used adequately matched controls over time. We believe longitudinal studies with serial assessment of the same patients would provide more robust answers. We note that even from the results from the four studies in which patients served as their own controls and which used an instrument known to be validated in large populations were negative (i.e., there was no improvement in psychometric or quality of life outcomes when patients were tested just prior to and at some point after the reassignment surgical intervention). (Heylens, 2014; Ruppin, Pfafflin, 2015; Smith et al., 2005; Udeze et al., 2008). Further, rigorous studies with the use of appropriate comparison patients could better clarify the specific benefits and harms of each of the interventions.

CMS reviewed and considered potential objective measures of function including mortality, psychiatric treatment, and attempted suicide. None of the longitudinal studies in which patients served as their own control, however, comprehensively tracked changes in these events as objective measures of function before and after surgery. Events such as suicide and institutionalization were mentioned incidentally when describing patients excluded from a follow-up study or during the study (Heylens et al., 2014; Ruppin, Pfafflin, 2015). Other times investigators tracked these functional outcomes (e.g., psychiatric out-patient treatment, psychiatric in-patient treatment, and substance abuse) for the most current prior year (Ruppin, Pfafflin, 2015).

The most comprehensive study with functional endpoints, the Swedish study that followed all patients who had undergone reassignment surgery (at mean age 35.1 years) over a 30 year interval and compared them to 6480 matched controls, identified increased mortality and increased psychiatric hospitalization (Dhejne et al., 2011). The mortality was primarily due to completed suicides (19.1-fold greater than in control Swedes), but death due to neoplasm and cardiovascular disease was increased 2 to 2.5 times as well. The divergence in mortality from the Swedish population did not become apparent until after 10 years. The risk for psychiatric hospitalization was 2.8 times greater than in controls even after adjustment for prior psychiatric disease (18%). The risk for attempted suicide was greater in male-to-female patients regardless of the gender of the control. Unfortunately, the study was not constructed to assess the impact of gender reassignment per se . The finding of this study, again, demonstrated that reassignment surgery does not return patients to a normal level of morbidity risk and that the morbidity risk is significant, because of its clinical importance, its persistence over the interval of data collection and the increase in risk over time for the individual.

1. Patient Care

Additional questions regarding the care of patients with gender dysphoria remain. The specific type(s) of gender/sex reassignment surgery (genital, non-genital) that could improve health outcomes in adults remain(s) uncertain because most studies included patients who had undertaken one or more of a spectrum of surgical procedures or did not define the specific surgical procedures under study. Furthermore, most studies did not assess specific surgical procedures except for technical aspects. Surgical techniques have changed significantly over the last 60 years (Bjerrome Ahlin et al., 2014; Doornaert, 2011; Green, 1998; Pauly, 1968; Selvaggi et al., 2007; Selvaggi, Bellringer, 2011; Tugnet et al., 2007; Doornaert, 2011).

The WPATH care recommendations presented a general framework and guidance on the care of transgender individual. The standards of care are often cited by entities that perform gender reassignment surgery. WPATH noted: “More studies are needed that focus on the outcomes of current assessment and treatment approaches for gender dysphoria.” Appendix D in the WPATH Standards of Care acknowledged the historical problems with evidentiary standards, the preponderance of retrospective data, and the confounding impact of multiple interventions, specifically distinguishing the impact of hormone therapy from surgical intervention.

The surgical expertise and care setting(s) required to improve health outcomes in adults with gender dysphoria remain(s) uncertain. The selection of a particular surgeon could become an important variable if subjective outcomes depend on functional surgical results (Ross 1989). Many of these procedures involve complicated gynecologic, urologic surgical techniques accompanied by significant risk (Goddard et al., 2007a; Kuhn et al., 2011; Lawrence, 2003; Leclere et al., 2015; Rachlin, 1999; Ruppin, Pfafflin, 2015). Most of the studies for reassignment surgery have been conducted in northern Europe at select centers with integrated care (psychological, psychiatric, endocrinologic, and surgical) in which there is sequential evaluation of patients for progressively more invasive interventions.

Additionally, CMS met with several stakeholders and conducted several interviews with centers that focus on healthcare for transgender individuals in the U.S. Primary care was often the centers’ main focus rather than gender reassignment surgery. Few of the U.S.-based reassignment surgeons we could identify work as part of an integrated practice, and few provide the most complex procedures.

2. Generalizability

With the variability in the study participants, providers and settings, the generalizability of the studies reviewed to the Medicare population is unclear. Many of the studies are old since they were conducted more than 10 years ago. Many of the programs were single-site centers without replication elsewhere. Most of these studies were conducted outside of the U.S. with far different medical systems for treatment and follow-up. The study populations were young and without significant physical or psychiatric co-morbidity. As noted above psychiatric co-morbidity may portend poor outcomes (Asscheman et al., 2011; Landen et al., 1998).

For the above reasons, it is difficult to generalize these studies to the Medicare population.

3. Knowledge Gaps

This patient population faces complex and unique challenges. The medical science in this area is evolving. There are, however, many gaps in the evidentiary base. These gaps have been delineated because they represent areas in which patient care can be optimized and which are opportunities for much needed research.

The Institute of Medicine, the National Institutes of Health, and others have delineated many of the gaps in the data. (Boehmer, 2002; HHS-HP, 2011; IOM, 2011; Kreukels-ENIGI, 2012; Lancet, 2011; Murad et al., 2010; NIH-LGBT, 2013) The current or completed studies listed in ClinicalTrials.gov are not structured to assess these gaps.

The currently available evidence has limitations:

• There were design deficiencies. All but one of the studies were observational in nature. All but two were non-blinded. The accompanying loss to follow-up suggests that there is selection bias and that the population that seeks treatment for gender dysphoria is not the same population that undergoes reassignment surgery without hesitation or regret.
• The psychometric and psychosocial function endpoints are not well validated.
• There were limitations of the psychosocial endpoints and of the data collection of other hard functional outcomes. Evidence on mortality and especially suicide was stronger. The mortality and psychiatric hospitalization rates even after vetting in highly structured programs are of concern.
• There are insufficient data to select optimal candidates for surgery.
• The results were inconsistent, but negative in the best studies, i.e., those that reduced confounding by testing patients prior to and after surgery and which used psychometric tests with some established validation in other large populations. (Atkins et al., 2004; Balshem et al., 2011; Chan, Altman, 2005; Deeks et al., 2003; Guyatt et al., 2008a-c; 2011a-e; Kunz, Oxman,1998; Kunz et al., 2007 and 2011; Odgaard-Jensen et al., 2011).
• Data on reassignment surgery performed on geriatric patients or follow-up data in geriatric patients who had reassignment surgery in the distant past is anecdotal (Orel, 2014).

C. Health Disparities

Four studies included information on racial or ethnic background. The participants in the 3 U.S. based studies were predominantly Caucasian (Beatrice, 1985; Meyer, Reter, 1979; Newfield et al., 2006). All of the participants in the single Asian study were Chinese (Tsoi, 1993). Additional research is needed in this area.

Based on a thorough review of the clinical evidence available at this time, there is not enough evidence to determine whether gender reassignment surgery improves health outcomes for Medicare beneficiaries with gender dysphoria. There were conflicting (inconsistent) study results – of the best designed studies, some reported benefits while others reported harms. The quality and strength of evidence were low due to the mostly observational study designs with no comparison groups, potential confounding and small sample sizes. Many studies that reported positive outcomes were exploratory type studies (case-series and case-control) with no confirmatory follow-up. Due in part to the generally younger and healthier study participants, the generalizability of the studies to the Medicare population is also unclear. Additional research is needed. This proposed conclusion is consistent with the West Midlands Health Technology Assessment Collaboration (2009) that reported “[f]urther research is needed but must use more sophisticated designs with comparison groups.” WPATH also noted the need for further research: “More studies are needed that focus on the outcomes of current assessment and treatment approaches for gender dysphoria.” Further, as mentioned earlier, patient preference is an important aspect of any treatment. With that in mind, CMS is interested in knowing from the patients with gender dysphoria what is important to them as a result of a successful gender reassignment surgery.

Knowledge on gender reassignment surgery for individuals with gender dysphoria is evolving. The specific role for various surgical procedures is less well understood than the role of hormonal intervention. Much of the available research has been conducted in highly vetted patients at select care programs integrating psychotherapy, endocrinology, and various surgical disciplines and operating under European medical management and regulatory structures. Standard psychometric tools need to be developed and tested in the patients with gender dysphoria to validly assess long term outcomes. As such, further evidence in this area would contribute to the question of whether gender reassignment surgery improves health outcomes in adults with gender dysphoria.

Because CMS is mindful of the unique and complex needs of this patient population and because CMS seeks sound data to guide proper care of the Medicare subset of this patient population, CMS strongly encourages robust clinical studies with adequate patient protections that will fill the evidence gaps delineated in this decision memorandum. As the Institute of Medicine (IOM, 2011) importantly noted: “Best practices for research on the health status of LGBT populations include scientific rigor and respectful involvement of individuals who represent the target population. Scientific rigor includes incorporating and monitoring culturally competent study designs, such as the use of appropriate measures to identify participants and implementation processes adapted to the unique characteristics of the target population. Respectful involvement refers to the involvement of LGBT individuals and those who represent the larger LGBT community in the research process, from design through data collection to dissemination.”

IX. Proposed Decision

X. appendices.

A. Appendix A

Diagnostic & Statistical Manual of Mental Disorders (DSM) Criteria for Disorders of Gender Identity since 1980

B. Appendix B

1. General Methodological Principles of Study Design

When making national coverage determinations, CMS evaluates relevant clinical evidence to determine whether or not the evidence is of sufficient quality to support a finding that an item or service is reasonable and necessary. The overall objective for the critical appraisal of the evidence is to determine to what degree we are confident that: 1) the specific assessment questions can be answered conclusively; and 2) the intervention will improve health outcomes for patients.

We divide the assessment of clinical evidence into three stages: 1) the quality of the individual studies; 2) the generalizability of findings from individual studies to the Medicare population; and 3) overarching conclusions that can be drawn from the body of the evidence on the direction and magnitude of the intervention’s potential risks and benefits.

The methodological principles described below represent a broad discussion of the issues we consider when reviewing clinical evidence. However, it should be noted that each coverage determination has its unique methodological aspects.

Assessing Individual Studies

Methodologists have developed criteria to determine weaknesses and strengths of clinical research. Strength of evidence generally refers to: 1) the scientific validity underlying study findings regarding causal relationships between health care interventions and health outcomes; and 2) the reduction of bias. In general, some of the methodological attributes associated with stronger evidence include those listed below:

• Use of randomization (allocation of patients to either intervention or control group) in order to minimize bias.
• Use of contemporaneous control groups (rather than historical controls) in order to ensure comparability between the intervention and control groups.
• Prospective (rather than retrospective) studies to ensure a more thorough and systematical assessment of factors related to outcomes.
• Larger sample sizes in studies to demonstrate both statistically significant as well as clinically significant outcomes that can be extrapolated to the Medicare population. Sample size should be large enough to make chance an unlikely explanation for what was found.
• Masking (blinding) to ensure patients and investigators do not know to which group patients were assigned (intervention or control). This is important especially in subjective outcomes, such as pain or quality of life, where enthusiasm and psychological factors may lead to an improved perceived outcome by either the patient or assessor.

Regardless of whether the design of a study is a randomized controlled trial, a non-randomized controlled trial, a cohort study or a case-control study, the primary criterion for methodological strength or quality is the extent to which differences between intervention and control groups can be attributed to the intervention studied. This is known as internal validity. Various types of bias can undermine internal validity. These include:

• Different characteristics between patients participating and those theoretically eligible for study but not participating (selection bias).
• Co-interventions or provision of care apart from the intervention under evaluation (performance bias).
• Differential assessment of outcome (detection bias).
• Occurrence and reporting of patients who do not complete the study (attrition bias).

In principle, rankings of research design have been based on the ability of each study design category to minimize these biases. A randomized controlled trial minimizes systematic bias (in theory) by selecting a sample of participants from a particular population and allocating them randomly to the intervention and control groups. Thus, in general, randomized controlled studies have been typically assigned the greatest strength, followed by non-randomized clinical trials and controlled observational studies. The design, conduct and analysis of trials are important factors as well. For example, a well-designed and conducted observational study with a large sample size may provide stronger evidence than a poorly designed and conducted randomized controlled trial with a small sample size. The following is a representative list of study designs (some of which have alternative names) ranked from most to least methodologically rigorous in their potential ability to minimize systematic bias:

Randomized controlled trials Non-randomized controlled trials Prospective cohort studies Retrospective case control studies Cross-sectional studies Surveillance studies (e.g., using registries or surveys) Consecutive case series Single case reports

When there are merely associations but not causal relationships between a study’s variables and outcomes, it is important not to draw causal inferences. Confounding refers to independent variables that systematically vary with the causal variable. This distorts measurement of the outcome of interest because its effect size is mixed with the effects of other extraneous factors. For observational, and in some cases randomized controlled trials, the method in which confounding factors are handled (either through stratification or appropriate statistical modeling) are of particular concern. For example, in order to interpret and generalize conclusions to our population of Medicare patients, it may be necessary for studies to match or stratify their intervention and control groups by patient age or co-morbidities.

Methodological strength is, therefore, a multidimensional concept that relates to the design, implementation and analysis of a clinical study. In addition, thorough documentation of the conduct of the research, particularly study selection criteria, rate of attrition and process for data collection, is essential for CMS to adequately assess and consider the evidence.

Generalizability of Clinical Evidence to the Medicare Population

The applicability of the results of a study to other populations, settings, treatment regimens and outcomes assessed is known as external validity. Even well-designed and well-conducted trials may not supply the evidence needed if the results of a study are not applicable to the Medicare population. Evidence that provides accurate information about a population or setting not well represented in the Medicare program would be considered but would suffer from limited generalizability.

The extent to which the results of a trial are applicable to other circumstances is often a matter of judgment that depends on specific study characteristics, primarily the patient population studied (age, sex, severity of disease and presence of co-morbidities) and the care setting (primary to tertiary level of care, as well as the experience and specialization of the care provider). Additional relevant variables are treatment regimens (dosage, timing and route of administration), co-interventions or concomitant therapies, and type of outcome and length of follow-up.

The level of care and the experience of the providers in the study are other crucial elements in assessing a study’s external validity. Trial participants in an academic medical center may receive more or different attention than is typically available in non-tertiary settings. For example, an investigator’s lengthy and detailed explanations of the potential benefits of the intervention and/or the use of new equipment provided to the academic center by the study sponsor may raise doubts about the applicability of study findings to community practice.

Given the evidence available in the research literature, some degree of generalization about an intervention’s potential benefits and harms is invariably required in making coverage determinations for the Medicare population. Conditions that assist us in making reasonable generalizations are biologic plausibility, similarities between the populations studied and Medicare patients (age, sex, ethnicity and clinical presentation) and similarities of the intervention studied to those that would be routinely available in community practice.

A study’s selected outcomes are an important consideration in generalizing available clinical evidence to Medicare coverage determinations. One of the goals of our determination process is to assess health outcomes. These outcomes include resultant risks and benefits such as increased or decreased morbidity and mortality. In order to make this determination, it is often necessary to evaluate whether the strength of the evidence is adequate to draw conclusions about the direction and magnitude of each individual outcome relevant to the intervention under study. In addition, it is important that an intervention’s benefits are clinically significant and durable, rather than marginal or short-lived. Generally, an intervention is not reasonable and necessary if its risks outweigh its benefits.

If key health outcomes have not been studied or the direction of clinical effect is inconclusive, we may also evaluate the strength and adequacy of indirect evidence linking intermediate or surrogate outcomes to our outcomes of interest.

Assessing the Relative Magnitude of Risks and Benefits

Generally, an intervention is not reasonable and necessary if its risks outweigh its benefits. Health outcomes are one of several considerations in determining whether an item or service is reasonable and necessary. CMS places greater emphasis on health outcomes actually experienced by patients, such as quality of life, functional status, duration of disability, morbidity and mortality, and less emphasis on outcomes that patients do not directly experience, such as intermediate outcomes, surrogate outcomes, and laboratory or radiographic responses. The direction, magnitude, and consistency of the risks and benefits across studies are also important considerations. Based on the analysis of the strength of the evidence, CMS assesses the relative magnitude of an intervention or technology’s benefits and risk of harm to Medicare beneficiaries.

Patient Population: Enrolled & Treated with Sex Reassignment Surgery Loss of Patients & Missing Data

Panel A (Controlled Studies)

Panel B (Surgical Series: No Concurrent Controls)

Panel C (Mixed Treatment Series: No Direct Control Groups)

*Data obtained via a survey on a website and distributed at a conference B/C=because BSRI=Bem Sex Role Inventory F=Female FP-R=Freiberg Personality Inventory GD=Gender dysphoria GID=Gender identity disorder HADS=Hospital Anxiety & Depression Scale IPP=Inventory of Interpersonal Problems M=Male NA=Not applicable SCL-90=Symptom Checklist-90 SF-36=Short Form 36 GRS=Sex reassignment surgery Tx=Treatment W/o=without

Demographic Features of Study Populations

Psychometric and Satisfaction Survey Instruments

Endpoint Data Types and Sources

Appendix G.

Longitudinal Studies Which Used Patients as Their Own Controls and Which Used Psychometric Tests with Extensive Normative Data or Longitudinal Studies Which Used National Data Sets

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David Carrier has a theory that human male bodies evolved to be more efficient than female bodies at landing blows with their fists.

Can transgender athletes compete at the Olympics? It depends on the sport Back to video

In a small study published in 2020, the evolutionary biologist and colleagues at the University of Utah reported that men seem more “anatomically specialized” in the muscular and skeletal traits that propel a punch forward. Males had greater strength and torque in the deltoid and pectoral muscles that horizontally flex the shoulder, and the triceps muscles extending the elbow. At roughly equal levels of fitness, the men in their study packed nearly twice as much power into a punching motion — cranking a flywheel — than the women.

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The finding suggests there are more sexual differences in the muscles that push the hand forward (punch), Carrier wrote in an email, “than in those that pull it back towards the shoulder,” like throwing a spear.

If their controversial theory is correct, that “striking with fist” was important in the evolution of hominins, particularly in male-to-male brawls over females, “boxing may be one of the sports in which sexual dimorphism in performance, and the advantage of individuals who have undergone male puberty, is more pronounced,” Carrier said.

Katia Bissonnette wasn’t thinking about our early ancestors when she left a hotel room last October with her combat gear: shoes, boxing suit, skipping rope, mouthpiece, bandages. The psychologist and amateur boxer from Saguenay was heading into her warm-up before a Quebec provincial Golden Gloves contest in Victoriaville, her first official fight in front of a referee.

She’s 36 and relatively new to the sport. A former drug addict who started using at 13 and didn’t stop until she was 30, Bissonnette took up boxing two years ago after completing her doctorate in psychology and falling into an “absolute existential void.” Boxing gave her meaning. It helps keep her clean. “It pushes me to my very limits, and I feel like I’m in the right place, like I’m bringing back some of my former world. The battles, the survival, the suffering, the blood. I know all that like the back of my hand.”

A novice competing in the women’s 75-kg category, Bissonnette headed into last October’s bout with one exhibition win under her belt and hopes of snagging her first championship.

What she didn’t know was that she’d soon be backed into a corner, not by punches but by a subtle text message to her coach from another coach an hour before she was due to step into the ring. Her opponent had “not always lived as a woman,” the message read.

“I felt used, duped,” Bissonnette said of the loose rules and lack of transparency about her transgender opponent.

As a precaution — she worried a bad punch could mean a serious or permanent injury — she pulled out, her coach telling La Presse, “In boxing, we hit each other on the face, we are not in a pool of water or on a racetrack!” Bissonnette said she also didn’t want to set a precedent. “I did not want to lead other fighters to accept a fight like this.”

Her act of protest ignited a Quebec media storm over one of the most divisive issues in the sporting world: the inclusion of male-to-female transgender athletes — transgender women  — in female-only categories.

How it will play out at the Paris 2024 Olympics isn’t clear. Three years after the International Olympic Committee left it up to each world sport body to set its own rules around trans inclusion, booting the issue back to the federations, several key sports, including cycling, track and field and swimming, have tightened eligibility criteria for trans female athletes wishing to compete in women’s categories. Rules range from outright bans — World Rugby — to maintaining testosterone within a permissible threshold, somewhere in the “normal” female range.

Other sport bodies are reviewing their policies or plan to deal with the issue on a case-by-case basis, creating further confusion in an issue that has roiled critics, spurred lawsuits and divided the women’s sports community.

In its latest “ Portrayal Guidelines ” for media and agencies covering the Games, the IOC says to avoid terms like “biological male,” “born male,” “born female,” “biologically male,” because these phrases “can be dehumanizing and inaccurate when used to describe transgender sportspeople and athletes with sex variations. A person’s sex category is not assigned based on genetics alone, and aspects of a person’s biology can be altered when they pursue gender-affirming medical care.”

In Canada, sport bodies have generally adopted inclusive policies that hinge on gender identity alone: at domestic competitions, meaning events in Canada for Canadian athletes, participants can register in the gender category with which they identify.

High-performing athletes must abide by the rules of their respective international federations for internationally sanctioned competitions and Games. But under its “inclusion-first” philosophy, the Canadian Centre for Ethics in Sport recommends athletes be permitted to participate in the gender category of their choosing, with no requirement for any medical interventions and no requirement to disclose trans status.

Conservative Party Leader Pierre Poilievre waded into the wrangle earlier this year when he said female sport categories (and change rooms) should be off-limits to “biological males.” Polls suggest Canadians support that view, by a wide margin . Alberta Premier Danielle Smith has pledged to create biological-female-only sports leagues for women and girls, a policy change federal Sport and Physical Activity Minister Carla Qualtrough has denounced as denying access to sport for purely ideological reasons.

It’s a hotly debated issue, a collision of competing human rights: the right of biological females to equal opportunity in sport based on sex versus the right of male-to-female trans athletes to compete based on gender identity. Most controversially, the IOC, in its latest framework, says there should be no “presumption of advantage,” which is contrary to its previous positions and which critics say is a preposterous claim that ignores why sports were segregated by sex in the first place.

It’s insane and it’s cheating. Tennis champ Martina Navratilova, in an op-ed about trans women competing against cisgender women

Opponents of inclusion policies argue biological performance advantages enjoyed by biological males are only modestly blunted when testosterone is suppressed, as per many sporting guidelines. They say that sporting bodies have surrendered to a tide of radical trans activism, and that the voices of elite female athletes — most of whom, while sympathetic to transgender oppression, also support categorization by biological sex, recent research finds — have been ignored or silenced. A survey of 25 high-performing Canadian female athletes commissioned by Sports Canada — a study a U.S.-based LGBTQ sports advocacy group intervened to shut down over allegations the researchers were perpetuating discriminatory stereotypes by referring to trans women as “biological males” — found female athletes fear speaking freely without being attacked and labelled transphobic, risking sponsorships and careers.

Those in favour of greater inclusion say trans female athletes are the latest targets for moral gender panic over trans rights. While female athletes face many obstacles “trans women aren’t one of them,” a Harvard Crimson editorial recently argued. At the U.S. college level, their numbers are “strikingly minuscule,” the Harvard student newspaper wrote (40 of the 500,000 athletes registered with the National Collegiate Athletics Association, or NCAA, are known to be trans).

According to a 2021 review commissioned by the CCES, Canada’s ethics in sport and anti-doping body, “it’s a myth that trans women dominate (i.e. win) all sports.” Studies that have concluded that they do have an unfair athletic advantage used “cis men” as a proxy for trans women, the authors said, “even though trans women’s bodies and living conditions are not comparable to cis men’s.”

They also noted that no trans female has won an Olympic medal since the Games were opened to trans athletes at Athens 2004 .

Canadian soccer midfielder Quinn, the first openly nonbinary, transgender athlete to capture an Olympic medal with the Canadian women’s team at the Tokyo Games, was assigned female at birth. Most trans male athletes (female to male) choose to compete in the female category because testosterone, the gender-affirming hormone administered to trans men, is a prohibited substance under the World Anti-Doping Code.

So the debate centres on trans women competing at the elite level against biological females. To critics, it’s worse than doping of all kinds. Ideology is trumping logic, 18-time Grand Slam champion and gay rights activist Martina Navratilova wrote in an op-ed in the Sunday Times. “It’s insane and it’s cheating,” she said, which led to accusations the former tennis champ is transphobic and stoking wild and irrational fears. The controversy has sparked legal action in the U.S ., pitting biological female varsity athletes against trans inclusions policies they say have cost them spots on the podium and scholarships. Two dozen state legislatures have passed bills restricting trans youths’ ability to participate in sports as part of a recent rush of anti-trans bills.

The issue has become ugly. In late May,  crowds booed a transgender high school sophomore runner for taking a state girls’ championship, with others blaming adults for the mess. Whether Paris will be the games when trans tensions will be tested is questionable. For many nations, Olympic trials are underway or still to come.

“Sometimes a person will show up out of the blue, and all of a sudden it turns out to be a trans-identifying male in women’s sport,” said former Canadian track champion Linda Blade.

New Zealand weightlifter Laurel Hubbard became the first openly trans woman to participate in the Olympics, at the Tokyo Games. However, transgender Olympians now face tighter restrictions, most often exclusion from the female category if they transited after age 12 or after the start of puberty, whichever came later.

Bodies are different, said Blade, a kinesiologist, sport performance coach, past president of Athletics Alberta and co-author, with National Post columnist Barbara Kay , of Unsporting: How Trans Activism and Science Denial are Destroying Sport. Biological females have looser joints and wider hips. For biological males, testosterone exposure through early life drives advantages in sport performance, such as more fat-free body mass and more muscle mass that can’t be “fixed” by estrogen therapy or other interventions, she said. One study that looked at the gender gap in Olympic sport performance, and between world records, concluded that women will never “run, jump, swim or ride as fast as men,” that women’s performances at the highest level “will never match those of biological males.”

“We’re not saying one (body) is worse than the other,” Blade said. “Simply that male bodies do not belong in female competition. No matter what you do to that male body, it’s always going to have male morphology.”

How did the Olympics use gender verification?

Female bodies were barred outright from the ancient Olympics. They weren’t included when the modern Games were first organized in 1896. A separate female category was ultimately introduced at the 1900 Games in Paris. A total of 22 women (out of 997 athletes) competed in five sports: tennis, sailing, croquet, equestrian and golf.

“In keeping with the ethics of fair play,” competitions were organized along sex-restricted lines, Jonathan Reeser, a physical medicine and rehab specialist, wrote in the British Journal of Sports Medicine. But sex segregation also increased the possibility of sex fraud, of men “masquerading as women in order to compete for the laurels of victory,” Reeser said. The most famous case of gender fraud involved German high-jumper Dora/Heinrich Ratjen, who competed at Berlin 1936 as a woman, but was later revealed to be a man.

To prevent similar “transgressions,” women competing in the 1966 European Track and Field Championships had to parade naked, or nearly nude, before a panel of female doctors to prove their “femininity.” Over the years, pre-competition gender verification became part-and-parcel of female athletics. The embarrassing genitalia exams were replaced with cheek swabs in the 1960s to test for male (XY) and female (XX) sex chromosomes. But even then, the picture wasn’t always so neat and tidy. Some people are born with differences in sexual development , or DSD, where chromosomes don’t fully correspond with the external genitals. It has been reported that South Africa’s Caster Semenya has one X and one Y chromosome in each cell, a condition known as 46,XY that results in much higher levels of testosterone compared to most female athletes. At the 800-metre race at the 2016 Rio Olympics, Canada’s Melissa Bishop placed fourth, behind Semenya and two other athletes from Burundi and Kenya who also had variants of DSD.

In 1992, the IOC switched to testing for the testes-determining SRY gene. Gender verification was finally abolished in the lead-up to the 2000 Summer Olympics in Sydney. Three years later, the Games were opened to trans athletes, provided they had undergone sex reassignment surgery. After Canadian cyclist Kirsten Worley challenged that criterion, the IOC, in 2015, dropped the surgery prerequisite for trans women, but said they must abide by a circulating testosterone limit below a specific level for at least 12 months prior to competition. In its latest guidance for trans inclusion rolled out in 2021, the IOC recommends sports bodies largely ditch any testosterone directive.

Some bodies, such as the Canadian Powerlifting Union, allowed inclusion via self-identification only: At both the recreational and competitive level, an individual could participate in the gender category of their choosing, regardless of whether they have undergone hormone therapy. Athletes weren’t required to disclose their trans identity or history to the CPU, or any of its coaches, staff, officials or other representatives. And no testosterone limits were deemed necessary.

The policy would later be changed to include new restrictions on trans inclusion, effective Nov. 1, 2023, but not before a Canadian transgender female powerlifter smashed a national record with a combined score for bench press, deadlift and squat of just under 598 kilograms — approximately 1,318 pounds.

Why was a Team Canada powerlifter suspended?

April Hutchinson met Anne Andres on a Facebook group for powerlifters when the pandemic shelved competitions. Andres was relatively new in the powerlifting scene, so Hutchinson offered a few tips here and there on form. Hutchinson said Andres referred to herself as a “she-boy.”

“I didn’t know what that meant,” Hutchinson said. “We had great conversations,” until the day their online chats turned to Laurel Hubbard, the New Zealand lifter who competed in the Tokyo Games. A “pioneer for trans athletes,” the Kiwi lifter was taken out of the running for the podium after three unsuccessful lift attempts.

Hutchinson is a Team Canada powerlifter, holder of the North American record for deadlift (220 kg) in the women’s 84-plus kg weight class, and a recovering alcoholic. She discovered booze at 12, became a “full-fledged” alcoholic at 18, and didn’t stop drinking until her early 40s, when she woke up in intensive care one morning, her liver shutting down, a nurse on the phone with her father, a former London, Ont. cop on the drug squad who worked overtime to pay for Hutchinson’s sports equipment — ringette, baseball, tennis — when she was a kid.

Hutchinson told Andres she thought it “completely unfair” to allow a trans athlete to compete in the women’s category. “(Andres) said, ‘Well, you know I’m (transgender), don’t you?’” Hutchinson asked how far Andres intended to go with powerlifting. It wasn’t just for fun — Andres had nationals and worlds aspirations, Hutchinson said she was told. “I was like, ‘Well, if you do, Anne, I will speak up, because that is completely unfair.’

“I sat with it for a while,” Hutchinson said, but then she stopped sitting with it and wrote to her provincial and national powerlifting bodies. “I just let them know about Anne, and I asked, ‘What are the policies?’ I had no answer whatsoever, like, not even, ‘Thank you for your email.’”

When Andres clinched first place in the Female Masters Unequipped Category at the Western Canadian Powerlifting and Bench Press Championships last August, beating out the second-place biological female finisher by more than 200 kg, Hutchinson took her protests to social media, which led to an interview with controversial British broadcaster Piers Morgan. In that interview, Hutchinson referred to Andres as a “man.” She was slapped with a two-year suspension by CPU over allegations of misgendering and harassment and breaching social media policies. The suspension was reduced to a year under an appeal.

When contacted for this story, Andres responded: “Your side has already won. I left the sport. You can all congratulate yourselves on ensuring trans people are not allowed to live open, happy lives, and find community.”

Following the Hutchinson-Andres fracas, the CPU introduced a new policy. Male-to-female transgender athletes who want to compete in women’s competitions must have a valid passport showing the female gender and demonstrate that their total testosterone has been equal to or below 2.4 nanomoles per litre for at least 12 months prior to their first competition. They also must undergo periodic testosterone monitoring throughout the desired period of eligibility.

The CPU did not respond to a request for comment, including whether, under the new trans policy, Andres’ record still stands.

Lifting doesn’t involve “human collisions or contact,” Blade has noted , unlike rugby. In 2020, World Rugby became the first international sports federation to bar trans women from female competitions after a review of the scientific literature concluded the risk of serious head or neck injury, especially in dynamic tackle situations, is simply too great.

Even with testosterone suppression, genetic male athletes are, on average, heavier, faster, 30 per cent more powerful, and 25 to 50 per cent stronger than genetic females, the review found.

Rugby Canada, citing Charter rights, responded by standing firm on its own transgender policy, under which athletes may participate in their expressed and identified gender category at the recreational and competitive levels (unless superseded by the rules set out by a world body and/or any major games).

Like other sport regulatory bodies across Canada, Rugby Canada took its guidance from the CCES. Struck in the wake of the Ben Johnson Olympic doping scandal, the CCES’s mandate was to spread the “no cheating, no doping” message, and help Canadian sport organizations with doping control, Blade said.

In 2014, the CCES struck an expert group to look at ways of making sport more welcoming to trans participants. Sports’ strict adherence to binary categories of “men” or “women” was making it challenging for people who do not fit neatly into either “narrow” category, the expert working group reported. Some trans athletes were being subjected to humiliating and traumatic forms of gender testing and other barriers “that go against the very values that we hope for and expect from our sport system in Canada.”

Among its recommendations, the expert group said hormone therapy shouldn’t be required as a condition of eligibility, and that any sport wanting to introduce such an eligibility clause would have to prove hormone therapy is a “bona fide” and reasonable requirement.

Even the not-very-good male, because of the size of the male advantages, will be able to beat a great many females ... Leslie Howe, co-author of a survey of elite female Canadian athletes

“Trans females are not males who became females,” the expert working group wrote, but rather people who have been “psychologically female but whose anatomy and physiology, for reasons as yet unexplained, have manifested as male.”

The group also said evidence was lacking to connect endogenous hormone levels, directly or consistently, with athletic performance. Men, on average, outperform women in sport, it acknowledged, but added “current science is unable to isolate why this is the case.”

“Growing up male likely confers physical, hormonal, social and economic factors that contribute to this performance gap, but we cannot say that it is specifically due to testosterone in a way that is significant and predictable,” the expert working group said.

Years later, the science is still being disputed. In March, the British Journal of Sports published an IOC-funded study that found trans female athletes, while taller and heavier, had decreased lung function — they had to work harder to breathe — and lower cardiovascular fitness than cisgender (biological) female athletes. They also performed worse on jump height, suggesting less “anaerobic power” in their lower body.

The study’s sample size (75 trans and non-trans athletes in total) was relatively small, the athletes self-reported how often they trained, and the authors acknowledged that their research doesn’t provide sufficient evidence to influence policy either way — inclusion or exclusion.

Other academics have argued that the IOC’s “don’t presume a performance edge” approach isn’t grounded in science, and it would be more logical and prudent to assume a biological advantage until proven otherwise.

“Even the not-very-good male, because of the size of the male advantages, will be able to beat a great many females and deny those females a chance at progressing in their own category,” said University of Saskatchewan philosophy professor Leslie Howe, co-author of the survey of elite female Canadian athletes.

“Let’s just take a fantasy number — let’s just say there are eight transwomen at elite international level,” Howe said. “To get to that point they have to exclude not just tens, but conceivably hundreds of other women.”

Of course, every athlete excludes hundreds to get to where they are, she said.

“But what you’re getting, if it’s a woman doing it, is the best woman. And you’re not doing it based on an unfair advantage that other women can’t possibly have.”

Who knew about Quebec boxer’s natal sex?

Hutchinson’s suspension ends Nov. 6. She never stopped training. Days after being served with her suspension, Shane Martin, president of the Canadian Powerlifting Union, resigned. “This position has become something I no longer recognize, and I am not the one to lead this organization,” Martin said in his resignation notice.

One month after pulling out of last fall’s Golden Gloves match, Bissonnette won a fight in Rimouski in under a minute. She has three wins and one defeat and hopes to keep boxing until age 40 (women boxers are even rarer after 40, making it harder to find opponents).

It’s not clear who knew or didn’t know about her opponent’s natal sex before the Victoriaville blow-up, only that, if someone did know, they didn’t share it with Bissonnette. Under a new Boxing Canada trans inclusion policy introduced in the wake of the controversy, trans athletes assigned male at birth who wish to compete in the women’s category must apply for a Transgender Medical Exemption, signed by their treating physician. The declaration must confirm that they have completed the “reassignment process” and have received therapy to sustain that gender reassignment for at least 12 months prior. A medical committee will adjudicate whether the conditions for safe participation have been met.

“There were just a lot of surprises (in Victoriaville) that got emotions cued, and I don’t blame anyone for that,” said Boxing Canada president Christopher Lindsay. “I think we had a number of officials who weren’t really sure how to deal with this situation.”

With two novices, trained officials were prepared to act if things in the ring got out of hand, he said. Olympic-style boxing is about skill and fitness, “and as soon as skill and fitness are no longer going to determine who is going to win the bout, then the bout needs to end.”

But after speaking to a whole lot of people — members, non-members, previous members — “there is a lot of fear about who you might see across the competition ring,” Lindsay said.

There have been no requests so far for trans participation now that the new policy is in place.

But Lindsay said he’s “petrified, frankly,” that, given the current environment, a reigning biological female world champion, and Canada has a long history of them in combat sports — 2022 middleweight world champion Tammara Thibeault has already qualified for Paris after capturing gold at the Pan American Games in October — might soon be challenged to prove they’re female in a return to the days of sex-verification tests and “certificates of femininity.”

“There are reasons why some athletes are world-class, and that’s because they are physically different,” Lindsay said. “They’re gifted in ways that allow them to participate in sport that make them great.”

Elite women athletes have been trolled for their muscular physiques. “Stop telling female athletes they look like men,” U.S. heptathlete Anna Hall said in an emotional TikTok video calling out a body shamer who’d commented “girls don’t have legs like that … She looks like a dude; I can’t tell what gender she is.”

Solving the mystery of Ethel Catherwood's lost 1928 Olympic gold medal

As far as Lindsay is aware, no questions were raised during the weigh-ins at Victoriaville. Prior to Boxing Canada’s trans policy, “I don’t think we were in a position to know, necessarily, if we had transgendered athletes participating in boxing,” he said.

“My suspicion is that, across the sport system, we have very likely had numerous cases of transgendered athletes participating, without anyone knowing their transgender status,” Lindsay said.

That’s what concerns Blade. “If there is no across-the-board restriction, women are left looking at each other, wondering.”

National Post

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• Pelagia Goulimari Pelagia Goulimari University of Oxford
• https://doi.org/10.1093/acrefore/9780190201098.013.1123
• Published online: 31 March 2020

Feminist, queer, and transgender theory has developed an array of fruitful concepts for the study of gender. It offers critiques of patriarchy, the gender binary, compulsory heterosexuality, heteronormativity, and homonormativity, inter alia. New Materialist feminists have analyzed gender variance, continuous variation, and continuous transition through concepts such as rhizome, assemblage, making kin, and sym-poiesis (making-with). Feminists of color and postcolonial feminists have theorized intersectionality—that gender always-already intersects with race, class, sexual orientation, and so on—and gender roles outside the white middle-class nuclear family, such as othermothering and fictive kin. Materialist feminists have studied gender as social class, while psychoanalytic gender theorists have explored gender as self-identification and in terms of the relation of gender identification and desire. Queer theory has explored vexed gender identifications and disidentification as well as heterotopias, counterpublic spaces, and queer kinship beyond the private/public divide. Transgender theory has critiqued transmisogyny and theorized transgender and trans* identities. Indigenous feminist and queer theory has theorized Two-Spirit identities and queer indigeneity in the context of a decolonial vision. Theorists of masculinities have analyzed masculinities as historically specific, plural, and intersectional. Gender studies, in all this diversity, has influenced most fields of study—for example, disability studies in its theorization of complex embodiment, its development of crip theory, and so on. Gender studies, in turn, has greatly benefitted from the study of literature. Literature has been indispensable in the genealogy of dominant gender norms such as the 19th-century norms of the angelic/demonic woman and self-made man. In return, gender theory has offered fresh insights into literary genre, for example the Bildungsroman. Since the development of gender theory, it has taken part in an ongoing dialogue and cross-fertilization with literature, evidenced in self-reflexive and critically informed literary texts as well as in gender theory that includes autobiographical and literary (e.g., narrative, figurative, fictional, poetic) elements.

• feminist theory
• queer theory
• transgender theory
• New Materialism
• intersectionality
• gender as class
• gender as self-identification
• gender binary
• gender variance
• continuous variation

Gender: Male/Female

In Jackie Kay’s novel Trumpet , musician Joss Moody is declared female at death, sending shock waves through his son and his public, when the doctor certifying his death discovers “female body parts.” 1 Why the shock waves? Most countries at the beginning of the 21st century assign their citizens male or female on birth and death certificates, passports, driver’s licenses, and other legal documents, usually by reference to genital status. In most urban spaces, from China to India to Liberia to Cuba to the United States, people are required to select the correct—male or female—public toilet and changing room. 2 They are commonly addressed as she or he in most languages. Beyond the law, architecture, and language, most cultures, more broadly, seem to assume the existence of only two genders. This might be thought to constitute a misrecognition and a civil rights deficit for all those who do not fit in.

Legislative changes in India, the state of Oregon in the United States, and Germany suggest that the legal status of gender is changing in many parts of the world, in the direction of adding a third option, variously defined as third-gender, gender-neutral, and so on. 3 Toilets and changing rooms are moving in the same direction. The term Mx has gained considerable state and public recognition in the United Kingdom in the second decade of the 21st century . In polite conversation in English-speaking countries, the introduction of the question “which pronouns do you use?” is meant to include “they/their” as a possible answer and to assume that one’s interlocutor might be using pronouns that do not line up with their gender presentation or genital status. However, self-identification continues to have strict limits in most contexts. Legally, gender reassignment usually involves a lengthy, extensive, and expensive process of medicalization: intervention by psychological evaluation, hormonal treatment, and genital reconstruction surgery. 4

Third Gender?

Such developments do not necessarily mean that the 21st century is in the forefront of steady historical progress. In Plato’s Symposium , Aristophanes in his speech famously relates a myth outlining three primordial genders: male-male (i.e., where both parts of the self are male), female-female, and male-female or androgynous ( ἀνδρόγυνοι ‎, androgynoi ). Aristophanes says:

You must first learn human nature and its condition. For our ancient nature was not what it is now. . . . In the first place, there were three sexes among men, not two as now, male and female, but a third sex in addition, being both of them in common, whose name still remains though the thing itself has vanished; for one sex was then derived in common from both male and female, androgynous both in form and name, though the name is now applied only in reproach. 5

R. E. Allen comments that “[t]his conception is essentially original, without antecedent in Greek mythology.” 6 However, Plato is not alone. Some cultures have long recognized and named genders beyond the female and male—see, for example, hijras in India and South East Asia, muxes in the Oaxaca region of Mexico, and Two-Spirit in North America. 7

The Gender Binary

It is important to distinguish between the assumption of the existence of only two genders, however these two genders might be qualified and seen to differ from each other, and the so-called “gender binary” discussed by gender theorists since Simone de Beauvoir. Beauvoir, in The Second Sex ( 1949 ), described patriarchy as a system of “binary oppositions.” A binary opposition views its two terms (e.g., man/woman) as negative mirrors of each other, namely as having stable and mutually exclusive properties and identities: one term is what the other term is not. More than a description, this involves a privileging of one term and the devaluation of the other. Patriarchy relies on binary oppositions such as: subject/object, transcendence/immanence, spirit/flesh, culture/nature, universality/particularity, and so on. It attributes the valued terms in each binary opposition (subject, transcendence, spirit, culture, universality) to men, while projecting the undesirable terms (object, immanence, flesh, nature, particularity) onto women. In Beauvoir’s terms, women are thus fixed into the position of the Other or othered. However, binary oppositions falsify reality: “every existent [every human being] is simultaneously immanence and transcendence.” 8 Similarly, the projection of “flesh” onto women misrecognizes that “man is also flesh for woman; and woman is other than a carnal object,” and so on for the other binary oppositions. 9 While the binary oppositions of patriarchy project onto men and women a false “essence” of unchanging properties, Beauvoir argues that: “An existent is nothing other than what he [ sic ] does. . . . [E]ssence does not precede existence: in his pure subjectivity, the human being is nothing .” 10 Beauvoir concludes that gender is socially constructed: it is a social category or social identity imposed on us. In this sense, “One is not born, but rather becomes, woman.” 11 Patriarchy creates and imposes on women, in particular, a devaluing transhistorical essence, a harmful mythology reproduced and embellished by writers and thinkers.

Judith Butler in Gender Trouble ( 1990 ) concurred: gender is socially constructed and the system of “polar genders” described by Beauvoir is still present. 12 Butler adds that this system is underpinned by “compulsory heterosexuality,” a term indebted to Adrienne Rich and Monique Wittig; what one might also call heteronormativity. 13 Butler ( 1990 ) argues that polar genders are “part of what ‘humanizes’ individuals” and that “we regularly punish those who fail to do their gender right,” her subsequent work exploring this further. 14 Fitting into the gender binary “humanizes” one, in the sense of allowing them to be counted as fully human, making their life “livable” and their death “grievable.” 15 By contrast, not fitting into the gender binary—for example, perceived gender incoherence—puts one at risk, particularly in the context of the “war on terror.” Developing Butler, Sima Shakhsari ( 2014 ) indicts a post-9/11 “politics of rightful killing.” 16

At the very least, those who are commonly read as not fitting the gender binary might well expect to experience routine micro-aggressions. Yet there seems to be a continuum between micro-aggressions and the threat of violence and death for those read or “exposed” as not fitting the gender binary. In Paris Is Burning , trans woman Venus Extravaganza talks eloquently about this threat. 17 Her violent death, shortly after, seems to confirm it, while the fact that no one was brought to justice seems to underline that her death was not socially grievable.

But how can one go about undermining the gender binary? One might show that gender binarisms are distributed differently in different contexts—and are in this sense historically contingent. For example, depending on the core values of a particular society, women might be portrayed as heartless and men as capable of depth of feeling or, on the contrary, women might be portrayed as too emotional and men as rational.

Contemporary literature experiments variously in order to expose and critique the gender binary. The unnamed narrator of Jeanette Winterson’s Written on the Body ( 1992 ) cannot be gendered coherently; accrues markers, descriptors, and metaphors on both sides of the gender binary; and thus confronts readers with their own unreflective use of a binary template to understand gender, making the binary visible and allowing readers to critique it. 18 Winterson commented:

I wanted to create a character who could act in ways that were stereotypically male or predictably female and have those clues continually undercut one another, so you have a narrator who is soft and will cry or will punch the shit out of somebody on the front doorstep. I don’t believe these things are contradictions, I believe they run together. 19

Put bluntly, gender binarism is a lie—in the sense that it is a crude oversimplification of gender. In Ali Smith’s Girl Meets Boy ( 2007 ) this is how Anthea describes her beloved, Robin: “The grey area, I’d discovered, had been misnamed: really the grey area was a whole other spectrum of colours new to the eye . She had the swagger of a girl. She blushed like a boy. She had a girl’s toughness. She had a boy’s gentleness. . . . She was so boyish it was girlish, so girlish it was boyish.” 20 The point here is not that, exceptionally, Robin is genderqueer (someone who does not identify or express their gender within the gender binary), but that gender binarism is an obstacle to genuine psychological realism in literature and to a genuine encounter with others in life.

Julia Serano expands on Beauvoir and Butler’s analysis of gender binarism. In the second edition of her influential Whipping Girl , she stresses the intersection of patriarchy, which she calls “traditional sexism,” and the gender binary, which she calls “oppositional sexism.” 21 Serano, unlike Beauvoir and Butler, clearly distinguishes the two. Traditional sexism is the “delegitimation of women and femininity.” 22 Oppositional sexism is the “delegitimation of gender non-conformity”; it values those who fit the gender binary, while devaluing the whole “spectrum” of transgender people. Serano calls “transmisogyny” the intersection of the two. Her concerted use of the figure of “spectrum” when describing identities—reminiscent of Ali Smith’s “spectrum of colours”—as well as her language of “gender diverse ” or “gender- variant individuals” and their “coalition” offer an alternative to the gender binary. 23 Having identified the “systemic” delegitimation of women, femininity, gender variance, and variation itself, her proposed solutions include not only figurative innovation and variance (e.g., in her use of “spectrum”) but also generic variance. 24 Some of her chapters began as slam poetry, as she comments, while the published Whipping Girl displays a variant generic mix of theory and autobiography. 25

Gender Variance, Continuous Variation, Continuous Transition

In spite of the increasing public visibility and acceptance of self-identified trans people (an umbrella term for those who do not identify with the gender they were assigned at birth)—from Buck Angel to Andreja Pejić—it is difficult to say whether the gender binary is being shaken. There are many culturally recognizable—socially intelligible, if not socially sanctioned—gender categories naming the spectrum beyond the gender binary: gender nonconforming, agender, bigender, genderqueer, nonbinary, transgender, trans, gender fluid, hijra , Two-Spirit, and so on. These terms are by no means universally accepted and clearly or stably defined, hence the constant updating of online databases. 26

Such terms are culturally specific and cannot be claimed by anyone without raising questions of cultural appropriation. For example, the Indigenous term, Two-Spirit, has emerged out of pan-Indigenous Native American and First Nations queer and other activism, as a political term reselected and shared since 1990 . 27 Against a historical background of settler colonialism and forced assimilation, the term is part of Indigenous cultural identity and self-definition. Two-Spirit and comparable terms—for example, “queer indigeneity”—are often part of a “decolonial vision” and cannot be claimed at will. 28 Non-Native people who lack this cultural literacy cannot meaningfully identify as Two-Spirit. Furthermore, for complex reasons, Indigenous people might self-identify as, and Indigenous critics might opt for, Two-Spirit or queer or one of the great diversity of gender terms in Indigenous traditions. For example, Qwo-Li Driskill opts both for Two-Spirit and for the Cherokee term asegi (strange heart/spirit[ed]), without excluding queer. 29 Two-Spirit is an umbrella term whose meaning is open but “rooted in Indigenous worldviews and lived experience”: an ongoing legacy of colonialism threatening Indigenous “ontologies of gender and sexuality” and “Indigenous knowledge paradigms which do not operate through dichotomous systems.” 30 Driskill argues that, unlike the term queer, Indigenous traditions connect the term Two-Spirit to spirituality, medicine, and a role in the community, hence the irreducibility of Two-Spirit and queer as gender categories. 31

For those who espouse gender variance, is the addition of new categories ever enough? New names and their dissemination and cultural acceptance might fill an “epistemic lacuna” or address a “testimonial injustice,” as Miranda Fricker would say. 32 However, the fairest epistemological standpoint might be to assume the irreducible existence of “unavailable intersections,” which are yet-unnamed gender identities or experiences. 33

New Materialist gender theorists, more than others, have valorized and theorized gender variance. New Materialists understand gender variance and variation in primarily ontological rather than epistemological terms. Ontologically, the core assumption is not that there are many genders—countable and fixed in nature and number. Rather, there are innumerable, mutating genders that cannot be counted, in continuous variation. For New Materialist gender theory, developing and extending the work of Gilles Deleuze, often with Félix Guattari, nature is not static; it is change and transformation. 34

“Multiplicity,” “becoming,” “rhizome,” “assemblage,” and “becoming imperceptible” are Deleuze’s most relevant concepts. In Anti-Oedipus ( 1984 ) Deleuze and Guattari insist that multiplicity is a “pure,” non-totalizable “multiplicity . . . irreducible to any sort of unity.” 35 At the micro-, subindividual level there are “ n sexes” and n erogenous zones on the body, while at the macro level there are n groups and, one might say, n genders. 36 There is a sex and gender variance in nature and in life that overflows on all sides the fortressed island of socially prescribed gender norms. These differences or variances are not static and cannot be mapped onto an Aristotelian typology of genus subdivided into species. In Deleuze’s Difference and Repetition ( 1968 ), differences are multiple lines of repetition-with-a-difference. 37 In Deleuze and Guattari’s A Thousand Plateaus ( 1988 ), using musical terms, differences are multiple lines of “continuous variation,” a generalized “chromaticism.” 38 These lines intersect, diverge, and reintersect again. Deleuze and Guattari ( 1988 ) call this a “rhizome”—using the figure of the horizontal and endlessly reconnecting roots of grass—and an “assemblage,” a term they take from 20th-century avant-garde art. Groups, individuals, and erogenous zones are effects of more primary rhizomatic connections and assemblages. “Assemblages” are constructivist constellations of heterogenous elements. Instead of putting a wedge between self and other, “us” and “them,” humans and the natural world, nature and technology, Deleuze and Guattari are looking at posthumanist rhizomatic connections and assemblages of humans, the natural world, and technology.

Karen Barad’s feminist science ( 2007 ) is explicitly making connections between Deleuze and Guattari, feminist thinker Donna Haraway, and physicist Niels Bohr in order to redescribe nature not as fixed and stable but as becoming . 39 Dorothea Olkowski ( 2009 ) discusses the affinities between Deleuze and Guattari and Barad, turning to Barad’s account of the sea creature, brittlestar. The brittlestar is “constantly breaking off and regenerating its bodily boundaries as it enfolds bits of its environment within itself, expelling parts of its own body into the surrounding environment.” 40 So “nature makes and unmakes itself experimentally; nature’s differentiations of its own material were never binary.” 41 In other words, there is nothing natural about the gender binary and polar genders.

Claire Colebrook ( 2009 ) argues that Deleuze’s thought enables queer theory to develop gender in a more affirmative and transformative direction. In her view queer theory had been too “concerned” with taking a “critical distance” from the “natural” attitude (the naturalized dominant gender norms). 42 But Deleuze’s philosophy allows queer theory to understand temporality as primarily queer: as a “power to create relations, to make a difference, and to repeat a power beyond its actual and already constituted forms.” 43 Haraway ( 2016 ) reaffirms her own long-standing commitment to this creative and experimental attitude for feminist thought. 44 She advocates sym-poiesis (making-with rather than self-making): experimentally assembling alternative kin groups that include the world’s non-human inhabitants.

Maria del Guadalupe Davidson ( 2010 ) focuses on the potential, for black feminists, of Deleuze’s understanding of difference as variation and metamorphosis rather than static difference. 45 Against the theorization of black women as the exemplary postmodern other, she theorizes a multiplicitous black feminist subjectivity in motion. Indeed Deleuze-inspired gender theory values transformation more than recognition—the self-transformation of misrecognized and silenced groups rather than their recognition by the state or the dominant majority. Recognition assumes a stable identity and is blind to the open and ongoing transformation of individual and collective subjectivities, as Elizabeth Grosz argues in “A Politics of Imperceptibility.” 46 “Becoming imperceptible” is a concept Deleuze and Guattari ( 1988 ) outline to describe the flight from static categories—man, woman, animal, machine, text—towards rhizomatic assemblages. 47

Jack Halberstam’s Trans*: A Quick and Quirky Account of Gender Variability ( 2018 ) reiterates the New Materialist and Halberstam’s own long-term ethico-political commitment to gender identity as “continuous transition.” 48 Halberstam’s asterisked trans* “embraces the nonspecificity of the term ‘trans’ and uses it to open the term up to a shifting set of conditions and possibilities rather than to attach it only to the life narratives of a specific group of people”; the asterisk “keeps at bay any sense of knowing in advance what the meaning of this or that gender variant form may be.” 49

Halberstam espouses a New Materialist ontology of continuous gender transition as well as an epistemological suspension of fixed social definitions in favor of unknowing and an openness to “trans* people” as the “authors of their own,” ever-changing self-definitions. 50 But Halberstam both singularizes and generalizes trans*. They generalize that we are all trans*: “Trans* bodies . . . remind all of us that the body is always under construction”; at the very least, the trans* body is a figure for a generalized power of transformation: “Trans* bodies represent the art of becoming, the necessity of imagining, and the fleshly insistence of transitivity.” 51 Yet Halberstam also singularizes trans* towards quirky individual or group self-identifications, and indeed practices the “quirky” in this text, particularly a quirky mix of gender theory, autobiography, self-reflexivity, and fiction, the latter in the sense of a “narrative framework of continual transition (becoming).” 52 For other examples of gender auto-theory that describes shifting gender-nonconforming identifications, see Kate Bornstein’s Gender Outlaw ; Maggie Nelson’s Argonauts ; and Paul B. Preciado’s Testo Junkie . 53 Preciado ( 2013 ) identifies as a “boy-girl” and genderqueer but, as they put it: “I’m not taking testosterone to change myself into a man or as a physical strategy of transsexualism; I take it to foil what society wanted to make of me.” 54

Gender as Class and Gender as Self-Identification

The emphasis on transformation in some strands of gender theory has raised the objection that they do not pay enough attention to the workings of power in the regulation of gender, hence the usefulness of the distinction, in gender theory, between gender as a social category or class and gender as one’s own sense of their gender identity or self-identification. 55 For example, as Toril Moi ( 2009 ) explains, one is counted and read as a woman, with everything this implies in a given location, irrespective of whether they are or identify as one. 56 And, conversely, one might identify as a woman irrespective of the gender assigned her at birth or her genital status.

To turn first to gender as social category or class, Moi argues that Beauvoir’s thought is exceptionally helpful “ once somebody has been taken to be a woman . . . . The woman . . . might very well be transsexual or intersexed, a lesbian or a man taken to be a woman.” 57 As already discussed, Beauvoir describes men and women as two classes, one systematically privileged and the other devalued and discriminated against; this critique of socioeconomic oppression inaugurates a varied and still-evolving tradition of materialist feminism that must be distinguished from New Materialist feminists.

Wittig describes women explicitly as an oppressed and dominated class. 58 But she adds to Beauvoir that founding this oppression is the institution of heterosexuality: “the heterosexual contract,” as “the obligatory social relationship between ‘man’ and ‘woman’” and as an “ensemble of heterosexual myths.” 59 Without it, the concepts “man” and “woman” would have no meaning. She announces: “It is the class struggle between men and women which will abolish men and women. . . . [F]or us, this means there cannot any longer be women, and that as classes and as categories of thought or language they have to disappear.” 60 Wittig concludes that lesbians are in the vanguard of this struggle: since “‘woman’ has meaning” only within heterosexuality, “[l]esbians are not women.” 61

The British socialist feminist philosopher Sabina Lovibond ( 2015 ) argued that women encounter “a social order which distributes its benefits and burdens in a systematically unequal way between the sexes.” 62 She suggested that “feminists should continue to think of their efforts as directed not simply towards various local political programmes, but ultimately towards a global one—the abolition of the sex class system, and of the forms of inner life that belong to it.” 63

Analytic philosopher Sally Haslanger ( 2000 ) acknowledges the distinction between gender as a social class and gender as gender identity but opts for gender-as-class as “the central or core phenomenon,” judging it most pertinent to her ameliorative, social-justice project and placing herself “within, though not following uncritically, the tradition of materialist feminism.” 64 Her focus is “the pattern of social relations that constitute the social classes of men as dominant and women as subordinate.” 65 Echoing Wittig and Lovibond, Haslanger calls for “a society free of gender in a materialist sense—one in which sex-oppression does not exist.” 66 In this sense of gender as oppressed class, she declares: “I believe it is part of the project of feminism to bring about a day when there are no more women (though, of course, we should not aim to do away with females!).” 67

Haslanger’s gender theory is universalist yet intended to be intersectional and sensitive to context: “the meaning of sex interacts with other socially salient characteristics (e.g., race, class, sexuality, etc.)” and “mechanisms of oppression vary from culture to culture.” 68 In particular, both gender and race are “hierarchical, but the systems that sustain the hierarchy are contingent. And although the ideologies of race and gender and the hierarchical structures they sustain are substantively very different, they are intertwined” in complex ways: “even if one is privileged along some dimension (e.g., in income or respect), one might be oppressed in others.” 69 Or, “in the contemporary US,” though there are contexts in which “Black males benefit from being male,” there are other contexts where “being Black and male marks one as a target for certain forms of systematic violence (e.g., by the police). In those contexts . . . being male is not something that a man ‘has going for him.’” 70 Such examples show that “a woman may not always function socially as a woman; a man may not always function socially as a man.” 71 From within Haslanger’s chosen perspective of “gender as social position, we must allow that one can be a woman without ever (in the ordinary sense) ‘acting like a woman’, ‘feeling like a woman’, or even having a female body.” 72

Katharine Jenkins ( 2016 ) critiques Haslanger, arguing that Haslanger’s selection of gender as class or social position as her core concept unwittingly excludes those who identify as women but are not socially counted as women, for example some trans women, in spite of Haslanger’s explicitly ameliorative, social-justice project. 73 She calls for an “improved ameliorative analysis that ensures the inclusion of trans women. This analysis yields ‘twin’ target concepts of woman, one concerning gender as class and the other concerning gender as identity,” both of which are needed for a “successful ameliorative inquiry.” 74 Gender as identity deserves “equal status within feminist theory” with gender as class. 75 This “twin” focus is more likely to deliver a feminism that “engages critically with the social reality of gender as class while at the same time taking seriously the agency of trans women, and other trans people, by respecting their gender identifications.” 76 Indeed Jenkins advocates using the term “woman” only to describe gender identity, not gender as class. 77

Gender, Identification, and Desire

This section starts with Freud. He describes two gender identities: masculinity and femininity, but he is contradictory and critics still disagree as to whether, in describing them, he exposes or endorses them. Masculinity is active; in the early, pre-Oedipal phase it is shared by boys and girls, focused on the penis for boys and the clitoris for girls, and takes the mother as its love-object. But in the Oedipal phase, the normal path of development for girls is femininity: they switch from activity to passivity, from clitoris to vagina, from mother to father as their love-object, all the while suffering from “penis envy”; the normal path of development for boys involves no such switch. However, some girls and boys might fail to take the normal path, with girls developing a “masculinity complex” and taking women as their active love-object, and boys taking men as their passive love-object. 78

As Louise Gyler comments: “it is yesterday’s news to suggest that the key elements in Freud’s oedipal logic, in particular the devalued position of the feminine, the normative dominance of heterosexuality and the binary logic of gender, are biased against women.” 79 Freud’s model, as gender theorists have been pointing out, effectively assumes not only gender binarism (where masculinity is active and femininity passive) but also heterosexuality. Women with a “masculinity complex” are effectively men who desire women, while gay men are effectively women who desire men. As a result, gender identification and desire are kept rigidly separated. One either identifies as a woman and desires men or identifies as a man and desires women.

Rich describes what she calls “compulsory heterosexuality,” namely heterosexuality as a social institution. 80 She goes on to define lesbians as a continuum, the “lesbian continuum” of “woman-identified” women. This turns the term lesbian into a broad (semi-)political gender identity predicated on solidarity or political identification with other women or female friendship or self-identification as a woman, irrespective of one’s sexual orientation. So Rich’s woman-identified lesbian continuum is very inclusive and perhaps builds bridges among very different groups of women, though it might be thought, in Freudian terms, to subordinate or collapse desire to identification, losing sight of the historical specificity of lesbian existence. 81

However, since Rich, gender theorists (Eve Kosofsky Sedgwick, Diana Fuss, Butler) have articulated the intertwining and conversion of identification and desire into each other. Sedgwick, in Between Men , outlines an asymmetry, for men and women “in our present society,” in the rules governing the relation of identification and desire: “the relatively continuous relation of female homosocial and homosexual bonds, and, on the other hand, the radically discontinuous relation of male homosocial and homosexual bonds.” 82 Sedgwick uses the distinction homosexual/homosocial to describe, respectively, sexual and nonsexual bonds between women and between men: sexual bonds would be bonds of desire, while non-sexual ones of identification. But she uses this distinction in order to undermine it: in spite of the modern Western prohibition of the continuums of homosexuality/homosociality and desire/identification, especially for men, the two terms of these distinctions cannot be segregated. Her aim it to highlight this “radically disrupted continuum” and to articulate the “slippery relation . . . between desire and identification,” which is already implicit in Freud and Jacques Lacan in her view. 83

Fuss ( 1992 ) comments that desire and identification can be “coterminous, where the desire to be the other (identification) draws its very sustenance from the desire to have the other.” 84 Unlike Sedgwick, she focuses on the social prohibition of overlapping identification and desire for women: sexualized images of women in women’s magazines encourage the female “spectator to identify with the woman precisely so as not to desire her.” 85 Butler ( 1993 ) similarly outlines the socially proscribed overlap of identification and desire in women, while writing about Nella Larsen’s novel, Passing : the African American protagonist, Irene, “finds herself drawn by Clare,” who “passes” as white, “wanting to be her, but also wanting her,” and cannot bear this. 86

Gender, Vexed Identification, and Disidentification

In gender identifications, gender always-already intersects with race, class, sexual orientation—indeed they are mutually constitutive, as Butler ( 1993 ) makes abundantly clear in her reading of Larsen. 87 However, since the 1990s queer theorists and artists of color have been critiquing the often-unacknowledged whiteness of queer theory and queer spaces. They have also been describing, more broadly, the “vexed” gender identifications of racially and ethnically marked people in white Western societies: multiple, conflicting, ambivalent, partial, critical, ever-shifting identifications.

David L. Eng ( 2003 ) analyzes Deann Borshay Liem’s autobiographical documentary, First Person Plural ( 2000 ) as an example of such vexed gender identifications. 88 Adopted from a Korean orphanage by a white American couple, she is dressed as an Orientalist China doll or holding blond, blue-eyed dolls in early home movies; in her teenage years she features as a cheerleader, prom-queen, and school sweetheart, who is almost but, irreducibly, not quite all-American girl. 89 From Orientalist to all-American, these are all white fantasies. The entire family participates in the “active production” of her “Korean difference, accompanied by a simultaneous reinscription—an effacing and a whitewashing—of this difference” in the sense of “the effacing and overwriting of her [Korean] childhood memories and affective commitments.” 90 Her life-long struggle with depression and “racial melancholia” register the psychic cost of whitening: “vexed identification and affiliations with lost objects, places, and ideals of both Asianness and whiteness remain estranged and unresolved.” 91 For Eng this is “a ‘normal’ everyday” experience for Asian Americans and part of the “contemporary formation of interracial First and Third World families.” 92 He asks whether experiences of “immigration, assimilation, and racialization” in the United States are “fundamentally determined through both the forced relinquishing of lost but unspeakable Asian ideals and foreclosed,” socially unattainable “investments in whiteness.” 93

In this context, José Esteban Muñoz ( 1999 ) proposes “disidentification” as a potential “strategy of resistance or survival” for “minority subjects.” 94 Butler ( 1993 ) had asked: “What are the possibilities of politicizing disidentification, this experience of misrecognition, this uneasy sense of standing under a sign to which one does and does not belong?” 95 Muñoz distinguishes his concept of disidentification from identification and counteridentification. Identification and counteridentification are roughly “ assimilation and anti-assimilation ”; the former points to a “‘Good Subject,’ who has an easy or magical identification with dominant culture” while the latter to a “‘Bad Subject,’ who imagines herself outside of ideology.” 96 Disidentification avoids the fixity of both identification and counteridentification and is a “vexed identification” (echoed by Eng). 97 The “‘disidentificatory subject’ . . . tactically and simultaneously works on, with, and against a cultural form” and “transforms the raw material of identification.” 98 Muñoz writes:

The process of disidentification scrambles and reconstructs the encoded message of a cultural text in a fashion that both exposes the encoded message’s universalizing and exclusionary machinations and recircuits its workings to account for, include, and empower minority identities and identifications. Thus, disidentification is a step further than cracking open the code of the majority; it proceeds to use this code as raw material for representing a disempowered politics or positionality that has been rendered unthinkable by the dominant culture. 99

In developing his concept of disidentification, Muñoz pays close attention to cultural and literary practice and explicitly acknowledges his debt to feminists of color, especially their theorization of their relation to mainstream white feminism. To use a few new examples, it would be fruitful to think of gender disidentifications in the novels of Nella Larsen and Jean Rhys. In Driskill’s Asegi Stories: Cherokee Queer and Two-Spirit Memory , Two-Spirit and asegi are gender identifications explicitly in the context of “Native disidentification with queer studies.” 100 Artists and writers of color, Alok Vaid-Menon and Travis Alabanza—gender-nonconforming, transfeminine, using they pronouns—describe and practice their gender identities in a disidentificatory relationship with mainstream white feminist and queer spaces, this article argues. 101

Gender and Intersectionality

Most 21st-century gender theorists would agree that we must not assume the primacy of gender over race, class, sexual orientation, and disability; that there are inequalities among women and among men; and that gender needs to be thought intersectionally. But, historically, intersectionality was first theorized by women of color. Sojourner Truth’s abolitionist speech, “Ain’t I a Woman?” ( 1851 ), as recorded by Frances D. Gage, raises a lot of the issues still preoccupying gender theory:

Dat man ober dar say dat womin needs to be helped into carriages, and lifted ober ditches, and to hab de best place everywhar. . . . I could work as much and eat as much as a man—when I could get it—and bear de lash as well! And a’n’t I a woman? I have borne thirteen chilern, and seen ’em mos’ all sold off to slavery, and when I cried out with my mother’s grief, none but Jesus heard me! And a’n’t I a woman? 102

Sojourner Truth is excluded from the category of “woman,” which is only reserved for middle- and upper-class white women. “Woman” might function as a social category that excludes and dehumanizes marginalized groups: one is female (or a “girl”) but not a woman (as in Audre Lorde’s poem “Who Said It Was Simple”), male but not a man, and therefore not properly human. So Butler’s argument (previously discussed) that incoherent gender presentation, which does not fit the norm of genders as polar opposites, risks not being counted as human, receives Truth’s early confirmation. Gender “humanizes” in the sense that fitting into a polar gender is a passport to humanity from which many are excluded. As Hortense Spillers ( 1987 ) put it starkly, slavery ungenders female flesh—and all slaves, male and female. 103

Patricia Hill Collins and Kimberle Crenshaw are the most widely acknowledged originators of “intersectionality” as a 21st-century concept. 104 Collins ( 2000 ) outlines intersectional work already done within black feminist thought, very broadly defined to include, for example, female rappers, and directions for work to come; she also discusses resistance to intersectionality among white feminists and black male intellectuals and activists. Developing the work of Foucault and feminist standpoint epistemology on “subjugated knowledges,” Collins offers a strong defense of black feminist intersectionality as a subjugated knowledge that enables a critical, oppositional, and empowering interpretative framework. 105

Highlighting differences among women, including differences among women of color, has been integral to traditions of intersectionality. The aims have been visibility, inclusion, diversity, and alliances. Ange-Marie Hancock ( 2016 ) sets out to show that while “intersectionality” as a concept emerged out of African American feminist thought, “intersectionality-like thought” had multiple points of origin among feminists of color globally, including US feminists of color, postcolonial feminists such as Gayatri Chakravorty Spivak and Chandra Mohanty, and feminists of the Global South. 106 Hancock affirms the “vast racial and ethnic diversity of intersectionality’s foremothers” and the historic connections of intersectionality with gender and race in order to avoid its whitening and dilution into a buzzword. 107 She redefines intersectionality for the 21st century as “an analytical approach to understanding between-category relationships and a project to render visible and remediable previously invisible, unaddressed material effects of the sociopolitical location of Black women or women of color.” 108

Assuming intersectionality’s attention to gender and race also includes consideration of class, sexual orientation, trans identity, disability, and other vectors, it is no doubt an indispensable approach. However, the relative significance of vectors varies from context to context. For example, the fissure between urban/rural—almost invisible in some accounts—is very significant in some contexts; see, for example, Tsitsi Dangarembga’s Nervous Conditions ( 1988 ). 109 Perhaps intersectionality is especially fruitful in relation to an emerging global canon of writing by women of color. One might list Assia Djebar’s Women of Algiers in Their Apartment ( 1980 ); Toni Morrison’s Tar Baby ( 1981 ); Jamaica Kincaid’s Lucy ( 1990 ); Yvonne Vera’s Butterfly Burning ( 1998 ), and so on, or, more recently, Arundati Roy’s The Ministry of Utmost Happiness ( 2017 ). 110 But one might expand this list to include intersectional texts by mixed-race, white, or male writers: Jackie Kay’s Trumpet ( 1998 ); Nina Baraoui’s Garçon manqué ( 2000 ); Chris Abani’s Becoming Abigail ( 2006 ); and Ali Smith’s Girl Meets Boy ( 2007 ), and so on. 111 Though intersectionality as a theory and literary texts since the 1980s might be said to have emerged in overt dialogue with each other, earlier literary texts might also be read intersectionally. Zora Neal Hurston, Larsen, and Rhys would be obvious examples, but see also Morrison’s reading of Willa Cather’s Sapphira and the Slave Girl ( 1940 ) in Playing in the Dark . 112

Gender and Disability

Since the beginning of the 21st century , gender theory and disability studies have been cross-fertilizing. Rosemarie Garland-Thomson ( 2002 ) argues that “gender intersectionality” needs to address the “ability/disability system” or the “normalcy system.” 113 She assumes, as do the New Materialist feminists, that nature is variation and change. Bodies have a primary and irreducible “variation and vulnerability,” “inherent instability,” and “precariousness.” 114 The normalcy system is a whole set of practices that disciplines and “police[s] variation” by introducing a norm from which disabled bodies are “imagined to depart”: the “normate.” 115 The normate is built on social fantasies of “wholeness, unity, coherence, and completeness” and the body as a “neutral, compliant instrument.” 116 By contrast, Garland-Thomson asserts that “disability, like femaleness, is not a natural state of corporeal inferiority” marking a group of people (women, the disabled) but “perhaps the essential characteristic of being human.” 117 She thus replaces a “culturally fabricated narrative of the body” with a new narrative that does not marginalize a group of people as “redundant and expendable.” 118

Ellen Samuels ( 2003 ) explores the conflict between social identity (how one is counted socially) and self-identification in the case of two “‘invisible’ identities: lesbian-femme and nonvisible disability.” 119 These identities “pass by default”—they are routinely assumed to be heterosexual/heteronormative and nondisabled—irrespective of self-identification. 120 What does it mean to come out in these situations and what are the differences? But also, what does it mean to pass? Samuels argues that passing “can become a subversive practice”; the “passing subject” can be viewed “not as an assimilationist victim but as a defiant figure who, by crossing the borders of identities, reveals their instability.” 121

Robert McRuer ( 2006 ) announces crip theory at the intersection of disability studies and queer theory. He outlines a “system of compulsory able-bodiedness” that is “thoroughly interwoven” with compulsory heterosexuality, as described by Rich ( 1980 ). 122 McRuer argues that “able-bodied identity” was “naturalized” in the context and in the service of industrial capitalism. 123 He reiterates that able-bodiedness is a social fantasy and affirms the “inevitable impossibility, even as it is made compulsory, of an able-bodied identity”—no one is fully able-bodied. 124 He calls for a “newly imagined . . . public sphere where full participation is not contingent on an able body.” 125

Tobin Siebers ( 2017 ) turns to feminist epistemology to build a theory of complex embodiment for all minority identities, which feeds back into gender theory. His starting point is feminist insights: “To take a famous example from Iris Young, the fact that many women ‘throw like a girl’ is not based on a physical difference. . . . It is the representation of femininity in a given society that disables women. . . . [E]mbodiment and social location are one and the same.” 126 This social experience in turn enables “awareness” that “majority society is a disabling environment that must be transformed by recourse to social justice.” 127 Following feminist philosophers Sandra Harding and Donna Haraway, Siebers argues that “all knowledge is situated,” it “adheres in social locations, it is “embodied”: “people in marginal social positions enjoy an epistemological privilege that allows them to theorize society differently from those in dominant social locations.” 128 Minority identity is a critical and politicized social identity: “because mainstream identities so robustly mimic existing social norms, it is difficult to abstract their claims about society. Identities in conflict with society, however, have the ability to expose its norms.” 129

Siebers’s theory of complex embodiment aims to attend to social location, particularly the “effects of disabling environments,” without neglecting those factors that “derive from the body,” for example aging. 130 Social identity and body are “mutually transformative”—“both sides push back in the construction of reality.” 131 Siebers views this as a corrective to pure social constructionism.

Genealogy of Gender Norms in 19th-Century Literature

For a genealogy of dominant gender norms and the project to export them beyond the white middle class, the Victorian novel offers ample material. Dominant Victorian norms of femininity polarize the angelic woman, entirely defined by her selfless love for others, and the demonic woman, who lives for herself, her interests, and her appetites. See Dickens’s Angels: middle-class Rose Maylie in Oliver Twist or poor Lizzie Hexam in Our Mutual Friend . In Hard Times , working-class Stephen is caught between his demonic wife and his angelic romantic friend, Rachel. Working-class Marion in Elizabeth Barrett-Browning’s Aurora Leigh is angelic, while in H. Rider Haggard’s King Solomon’s Mines African Foulata and Gagool are angelic and demonic, respectively. Gagool is predictably punished with death, but Marion and Foulata have to sacrifice themselves in near-suicidal self-abnegation to become honorary members of the British middle class, and Foulata fails to survive. While Agnes Wickfield in David Copperfield is constantly described as an “Angel,” David, her soulmate, is self-assertive and bites his tormentor Murdstone’s hand. 132

The self-made man and the self-sacrificing woman are the asymmetrical norms of masculinity and femininity underpinning Dickens’s English middle-class meritocracy and social mobility. In Oliver Twist , the exemplary Oliver is primarily a self-made man—“sturdy” and self-assertive (for example he asks for more food at the workhouse)—but he is secondarily rounded off by benevolence. By contrast, Rose’s and Nancy’s self-sacrificing and other-oriented behavior cannot be rounded off by a degree of self-affirmation—they must not actively pursue their social advancement. Nancy turns down Rose’s offer of class mobility and dies in Sikes’s hands. Rose is only rewarded with a loving and socially advantageous marriage to her beloved Henry once she has turned it down and thus demonstrated her capacity for self-denial and self-sacrifice in the interest of others. Most Dickens women are polarized into unlivable angelic goodness and its opposite.

Self-cultivation or self-making is a core value in Enlightenment (and modern Western) ideology. 133 However, women are excluded. In Beauvoir’s terms, while men are allowed and required to achieve “being for oneself,” women are required to resign themselves to “being for others.” Nancy and Rose are primarily instruments for Oliver’s acquisition of his lawful inheritance. Norms of femininity are considerably less realistic and nuanced and more restrictive and untenable than norms of masculinity—sacrifices and benefits are distributed very unequally, and any benefits for women are at the discretion and judgment of male others and mostly directed towards white middle-class women.

Victorian gender norms intersect with a rigid private/public divide, especially for middle-class women. In Bleak House the public-spirited Mrs. Jellyby, setting up a mission in Africa, woefully neglects her own children; she is a busybody who does not know her place. However, Anne McClintock discusses the imperial dissemination of Victorian gender norms, the nuclear family, and gendered division of private/public space in the colonies as part of Britain’s “civilizing mission.” 134

In a 19th-century US context, both before and after the abolition of slavery in 1863 , the gender stereotypes of the angelic/demonic woman are explicitly racialized. On the side of the demonic, we encounter the black Jezebel, the oversexualized black woman, all body, legitimizing the sexual and reproductive exploitation of female slaves; on the side of the angelic, the ethereal white lady, sitting idly on the porch, all spirit; and the angelic faithful black mammy, all work for the white family, even at the expense of her own kin. Larsen’s Passing shows how the stereotype of the black Jezebel necessitated a particularly repressive politics of respectability for black middle-class women such as Irene. Sofia in Alice Walker’s Color Purple and Pauline in Morrison’s The Bluest Eye are sustained critiques of the faithful mammy figure. 135

Turning now to dominant Victorian norms of masculinity, it is important to stress that masculinity is just as historically specific, intersectional, and plural as femininity. Victorian men are required to be active outside the home. Fagin, in Oliver Twist , is a perverted father to his gang of boy pickpockets, socializing them into male norms of work: “Whenever the Dodger or Charley Bates came home at night, empty-handed, he would expatiate with great vehemence on the misery of idle and lazy habits; and would enforce upon them the necessity of an active life, by sending them supperless to bed.” 136 The comedy of the passage hinges on the reader’s recognition of these norms. If Dickens is critical of female busybodies, he is equally critical of lazy or idle men, such as Mr. Mopes in Tom Tiddler’s Ground . 137 He is also critical of men who pretend to be self-made, such as Mr. Bounderby in Hard Times , who continually boasts of being self-made but fails to acknowledge his debt to his mother. 138 In the context of British colonialism, white male industry equals civilization.

In the US antebellum context of slavery and settler colonialism, Frederick Douglass uses the trope of the self-made man to establish his humanity in his 1845 abolitionist slave narrative, Narrative of the Life of Frederick Douglass, an American Slave . 139 While the US emergence of this trope is often attributed to Benjamin Franklin’s Autobiography and its ideology of virtuous industry, Franklin does not use this term, and Douglass’s speech, “Self-Made Men,” first delivered in 1859 , does not refer to Franklin. 140 Douglass defines “self-made men” as “men of work,” adding that “work alone is not the only” factor in their success and that “[p]roperly speaking” there are no self-made men. 141 Crucially, men of all races (including African American and Indigenous men) can be self-made men, but America is uniquely their “home and foster-mother” and Lincoln their “King.” 142 19th-century British novels such as Mansfield Park and Jane Eyre show the origin of European wealth to be not one’s own work and self-made masculinity but the work of others in the contexts of colonialism and slavery. 143 In A Mercy ( 2008 ), a novel about the beginnings of America, Morrison critiques Douglass’s American trope through Jacob Vaark, an orphaned self-made European man, whose hard work in the New World is not a sufficient source of wealth, and who turns to the slave trade and invests in the Caribbean slave economy. 144

After the US Emancipation Proclamation of 1863 , most African American men found the gender norm of the self-made man to be socially unattainable. Despite Douglass’s best efforts, American “self-made men” continued to be defined through the exclusion of African American and Indigenous men. Gail Bederman ( 1995 ) reads Theodore Roosevelt as exemplary of the American transition from Victorian “moral manliness,” which “implied a certain authority over the lower orders,” to a distinctively American frontier manliness that was “exclusively white” and reliant on the “myth of Indian rapists and baby killers.” 145 Ava DuVernay, in her documentary 13th ( 2016 ), investigates the criminalization and mass incarceration of poor black and brown people, but especially black men, in the United States after the abolition of slavery, and the emergence of the gendered stereotype of the black criminal and rapist, canonized in The Birth of a Nation ( 1915 ), as justification for the continuing economic exploitation, civil rights deficit, and disciplining of black people. 146 Black Lives Matter emerged out of the African American community in 2013 to become global. #SayHerName was launched by the African American Policy Forum (whose executive director is Crenshaw) to bring corrective attention to black female victims of police violence, racist violence, and other forms of violence.

Masculinities

In The Second Sex , Beauvoir writes: “A man never begins by positing himself as an individual of a certain sex.” 147 Man is the universal, unmarked by gender, and woman the particular, standing for gender. The whole new field of masculinity studies starts from the opposite premise. Man is just as historically contingent as woman, and norms of masculinity are context-bound, plural, and intersecting with race, class, sexual orientation, disability, and so on. R. W. Connell’s Masculinities ( 2005 ) is one of the founding texts of masculinity studies. 148 Connell, a feminist, global South, left-wing Australian trans woman, proposed the concepts of “hegemonic masculinity” and plural masculinities , and the intersectional study of multiple masculinities. 149

The field of masculinity studies bears the influence of feminism, but also queer theory, postcolonial, African American, Latina/o, indigeneity, and disability studies. As these fields continue to connect rhizomatically, it would be counterproductive to ask whether Halberstam’s Female Masculinity ( 1998 ) belongs to feminist, queer, or masculinity studies. 150 Masculinity studies historicizes, pluralizes, localizes, and situates male gender norms and shows their contingency and transformation. It has developed an array of useful terms such as: toxic, orthodox, imperial, dominant, eugenic, heroic, national, transnational, non-conformist, inclusive, pluralistic, hybrid, marginalized, emergent, female, trans, hyper-, and post-masculinity/ies.

Masculinity studies has critiqued racial stereotypes, such as those of hypermasculine black men and feminine Asian men. In Black Men on Race, Gender, and Sexuality , Devon Carbado’s editorial introduction and epilogue and Crenshaw’s foreword set the agenda for debate on black male identity in the United States. Crenshaw objects to those, within the African American community, “for whom racial suffering remains singularly represented by the ‘heterosexual Black male.’” 151 Carbado, echoing Crenshaw, opens his introduction with the core assumption of feminist intersectionality that systems of oppression are interlocking. He argues that Black antiracist discourse is often “hetero-male normative,” so implicitly or explicitly sexist and heterosexist. 152 In the epilogue, his project is one of “challenging male and heterosexual privilege.” 153 This is particularly difficult for heterosexual black men, he argues, because heterosexual privilege is one of the few privileges that they have—not being a “sissy, punk, faggot.” 154 Even so, they “continue to be perceived as heterosexually deviant (potential rapist of white women) and heterosexually irresponsible (jobless fathers of children out of wedlock).” 155 Nevertheless, “male feminism” should be focused on describing the “ways men benefit from patriarchy”—and Carbado gives many illuminating examples. 156

Going back to the African American literary canon, James Baldwin is an important precursor of masculinities studies. His novel, Another Country ( 1962 ) is explicitly intersectional, discussing gender, race, class, and sexual orientation, including bisexuality and cross-race and cross-class relationships. See also his essay, “Here Be Dragons” ( 1985 ) and his last interview, with Richard Goldstein. 157 Many texts in the African American canon would be fruitfully brought in dialogue with masculinity studies. For example, in Ralph Ellison’s Invisible Man , see the black college principal and the dissimulation to white patrons he is required to perform. Indeed masculinity studies sheds new light on the entire US canon, from Moby Dick to Ernest Hemingway, Raymond Carver, and Cormac McCarthy’s Blood Meridian . Masculinities are a major theme in 21st-century criticism and literature, for example novels such as Junot Díaz’s The Brief Wondrous Life of Oscar Wao ( 2007 ). 158 21st-century literary criticism studies masculinities in a multitude of national and transnational contexts and periods.

Gender and Growing Up

If “One is not born, but rather becomes, woman” or man, what does it mean to grow up? 159 To adopt and internalize unequal social norms of gender, to accept one’s unequal place in society? Gender theorists have been turning to coming-of-age narratives, especially the literary genre of the Bildungsroman, to understand these processes. The Bildungsroman explores individual formation, education, development, growth, maturation, and coming of age, including conflict with society, conflict resolution, compromise, accommodation, and social integration. See Goethe’s Wilhelm Meister’s Apprenticeship and Dicken’s David Copperfield . 160 The (male) hero aims for a compromise between his autonomy and social norms, between his pleasure or inclinations and worldly success, between social reform and social order. 161 Moretti argues the collapse of the Bildungsroman due to the trauma that World War I inflicted on European men: “in a trauma the external world proves too strong for the subject,” socialization becomes “more violent,” and regression “symbolically prominent”—“Under artillery fire, the favourite position of infantrymen was the fetal one.” 162 Though Moretti clearly has Western men in mind, he seems oblivious to the gender dimension in socialization. However, reading the female Bildungsroman suggests that the socialization of women has been often violent and traumatic, well before World War I.

The female Bildungsroman—from Fanny Burney, Jane Austen, Charlotte Brontë, and George Eliot to Virginia Woolf and Margaret Atwood—is, for some critics, a capacious version of a flexible form; for others, the female Bildungsroman is its appropriation and critique or even an anti-Bildungsroman. 163 In Mill on the Floss , Maggie Tulliver’s gender identity is so evolved that she is unfit to survive her social environment. The girl-hero of the female Bildungsroman may well fail or indeed refuse to progress into a proper woman, mother, and wife, her journey aborted, as in The Yellow Wallpaper, The Awakening, The Voyage Out , and The Last September . Why “grow up” into a woman when the social norm of womanhood involves a loss of autonomy, authority, and self-possession? In The Last September gender and postcolonialism clearly intersect, as they do in Wide Sargasso Sea and other female postcolonial Bildungsromanen . 164 21st-century criticism highlights the postcolonializing but also the queering and cripping of the Bildungsroman.

Since the 1980s, both within and beyond the Bildungsroman, there is an emerging canon of narratives describing queer, trans, or crip paths of development that deviate from normative “growing up.” 165 See, for example, Lorde’s Zami , Winterson’s Oranges Are Not the Only Fruit , and Leslie Feinberg’s Stone Butch Blues . 166 This is why queer theorists distinguish between growing up—or growing straight, in the sense of heteronormative upward progress—and growing “sideways” as a reorientation of the Bildungsroman. 167 Queer theories of temporality have been critiquing the plot of progressive linearity in favor of alternative temporalities for gender identity. 168

Since the beginning of the 21st century , there has been an explosion of narratives of transgender kids, from the path-breaking film Ma vie en rose ( 1997 ) about transgender girl Ludovic to the mainstream documentary Growing Up Coy ( 2016 ). There is a burgeoning young adult literature on transgender teens, increasingly written by trans authors. 169 See, for example, Julie Anne Peters’s Luna ( 2004 ) and Meredith Russo’s If I Was Your Girl ( 2016 ). 170

Heteronormativity and Homonormativity versus Making Kin and Queer Kinship

Cathy Cohen ( 1997 ) usefully distinguished between heterosexuality and heteronormativity. 171 While heterosexuality is a sexual orientation, heteronormativity—a term introduced by Michael Warner—is a performance of dominant gender norms: for example, a nuclear family headed by a male (main) bread-winner, with housework and childcare (mainly) performed by the woman. Cohen argues that a single mother on welfare might be heterosexual, but she is not heteronormative. Historically, heteronormativity has been patrilinear, passing property from father to legitimate son or son-in-law, as critiqued in 19th - and 20th-century literary texts such as Katherine Mansfield’s “Prelude,” Vita Sackville-West’s All Passion Spent , or Jean Rhys’s Wide Sargasso Sea . 172 Their comparison highlights local variations in British metropolitan and colonial norms. More broadly, heteronormativity and the institution of marriage are critiqued in The Yellow Wallpaper, The Awakening, Jude the Obscure, The Voyage Out , and so on. 173 The legalization of gay marriage has occasioned a return to the old feminist question of whether marriage should be reformed or abolished. Feminist philosopher Clare Chambers ( 2017 ) calls for the abolition of marriage as a state-recognized legal status. 174

Lisa Duggan ( 2002 ) adds to heteronormativity a new term, homonormativity. 175 Like heteronormativity, homonormativity is not about sexual orientation but about the performance of dominant gender norms. It describes gay neoliberal conservatism: a white, male, affluent, politically conservative, private, nuclear gay family. Duggan distinguishes between homonormativity and queer politics, and subsequent queer theory has been fleshing out so-called queer kinship as a valuable critique and transformation of dominant gender norms.

Collins ( 2000 ) described historic traditions of alternative, non-nuclear families in the African American community: single mothers, othermothers, othermothering, and elective or “fictive kin.” 176 In her novels Morrison explored both African American internalization of white gender norms and alternative traditions of resistant (rather than socially reproductive) mothering and othermothering beyond the gender norms of the nuclear family.

Paris Is Burning documents the legacy of these alternative traditions and gender roles in the New York African American and Latino LGBTQ (lesbian, gay, bisexual, transgendered, and queer) culture of drag balls, run by elective Houses of “daughters,” headed by a “mother”: the mostly African American Houses of LaBeija, Ninja, and so on; and the mostly Latino House of Extravaganza. As part of the drag balls, House members (often poor young queer people of color) compete in the performance of a great variety of gender roles specific to class, race, sexuality, and social situation (from straight male executive or military man to straight school girl or posh lady), aiming for “realness” and artistic virtuosity; competitions include “voguing” dance performances or adversarial, agonistic oratorical performances critiquing co-competitors, called reading and shading . Crossing the private/public divide of nuclear gender norms, close-knit Houses thus provide an alternative family/public space that tolerates gender variance and promotes gender self-reflexivity, exemplifying what can be called a “counterpublic space.” 177

Feminist and queer theory, developing the work of Michel Foucault, has focused on queer kinship and counterpublic spaces as resources. It would be useful to summarize very briefly the extensive and varied uses of Foucault by feminist and queer gender theorists. The so-called “archaeological” and “genealogical” critiques of the social production of gender conducted by Spillers ( 1987 ), Butler ( 1993 ), and more recently Ellen K. Feder ( 2007 ) owe much to Foucault’s conceptualizations of power and discourse. 178 His concepts of “biopower” and “biopolitics” have influenced Butler’s on livable lives and grievable deaths. 179 His distinction throughout his work between dominant discourses and disqualified or “subjugated knowledges” has also been useful.

This article has been using most of these concepts in other sections. Most relevant here is Foucault’s sketchy discussion of the creation of counterpublic spaces or heterotopias as a possible form of resistance. Foucault only suggested this tactic in his more marginal works, but recent feminist work has returned to it and developed it. In “Different Spaces” (written in 1967 but only published in 1984 ) Foucault expresses his interest in “emplacements . . . that have the curious property of being connected to all the other emplacements, but in such a way that they suspend, neutralize, or reverse the set of relations that are designated, reflected, or represented . . . by them.” 180 He goes on to point out what he calls “heterotopias of deviation: those in which individuals are put whose behavior is deviant with respect to the mean or the required norm.” 181

Connecting the dots one might say that a dominant discourse constructs categories of social others, but this imposed grouping of people around false essences or identities (e.g., “woman” or “homosexual”)—this accident—might then have the unintended side-effect of kick-starting self-fashioning counter-cultural communities. In a 1981 interview entitled “Friendship as a Way of Life” Foucault suggests that homosexuality is subversive only to the extent that it is also an alternative, open-ended, affective way of life connecting a group of people. (Deleuze and Guattari would call this a “rhizome.”) The question, says Foucault, is not “Who am I?” but “What relations, through homosexuality, can be established, invented, multiplied, and modulated?” and how to “arrive at a multiplicity of relationships . . . the formation of new alliances and the tying together of unforeseen lines of force”; “relations with multiple intensities, variable colors, imperceptible movements and changing forms.” 182 These relations “invent . . . a manner of being that is still improbable. . . . Homosexuality is a historic occasion to reopen affective and relational virtualities.” 183 But Foucault also, if briefly, pays tribute to “affection and passion between women . . . whether relationships could be called ‘homosexual’ or not.” 184 So politics, being-together, and love cannot be separated. Foucault allows gender theorists to move from the psychoanalytic separation of desire and identification, to collective identifications and networks informed by love and desire.

Halberstam ( 2005 ) explicitly develops these Foucauldean traces to think about queer communities: “queer friendships, queer networks . . . mark out the particularity and indeed the perceived menace of homosexual life.” 185 In this sense, “the queer ‘way of life’” includes “subcultural practices, alternative methods of alliance, forms of transgender embodiment, and those forms of representation dedicated to capturing these willfully eccentric modes of being”; it “has the potential to open up new life narratives and alternative relations to time and space.” 186

Halberstam ( 2017 ) argued against an insidious hierarchy of gender subversions and counter-norms, for example questioning the idea that post-operative female-to-male transition is necessarily a more radical form of gender crossing than lesbian butch masculinity. 187 Muñoz’s last work on a “brown undercommons” and Halberstam’s work on “wildness” seem acutely aware of power inequalities (inflected by race, class, etc.), even in the most alternative feminist and queer spaces, often at the expense of the most vulnerable, for example poor trans women of color. 188 Transgender theorist Susan Stryker ( 2004 ), while affirming the potential of queer theory for a “radical restructuring of our understanding of gender, particularly of minoritized and marginalized manifestations of gender, such as transsexuality,” argues that queer theory “has not realized” this potential: “all too often queer remains a code word for ‘gay’ or ‘lesbian,’ and all too often transgender phenomena are misapprehended through a lens that privileges sexual orientation” at the expense of gender, effectively excluding trans people. 189

Feminist philosopher Allison Weir ( 2013 ) brings Foucault’s work on heterotopias and friendship into contact with the feminist work of Maria Lugones and Saba Mahmood. 190 Weir’s aim is to rethink resistance and solidarity in terms of critical belonging (belonging involving both identification and disidentification with a social world) and the negotiation of competing identifications with a dominant and a marginal world. Lugones and Mahmood themselves have an identificatory and disidentificatory relationship with white feminism, as has Stryker with queer theory. Weir’s central concept is that of “transformative identifications.”

Beyond Foucault, historical and literary examples of alternative “making kin”—beyond nuclear gender norms—are a source of inspiration. For example, see Chinese absentee wives, “self-wedded” women, and “sworn sisters,” and texts including Rokeya Sakhawat Hossain’s “Sultana’s Dream” ( 1905 ) and Charlotte Perkins Gilman’s Herland ( 1915 ). 191 Haraway’s Staying with the Trouble: Making Kin in the Chthulucene ( 2016 ) calls for thinking about gender and “making kin” in their entanglement with the nonhuman world. 192

Acknowledgments

I am grateful to Julie Rak and Jean Wyatt for their excellent suggestions for revision, and Ian Richards-Karamarkovich for his generous in-house editorial support.

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• Revathi, A. The Truth about Me: A Hijra Life Story . Translated by V. Geetha . New Delhi: Penguin, 2010.
• Rich, Adrienne . “Compulsory Heterosexuality and Lesbian Existence.” Signs: Journal of Women in Culture and Society 5, no. 4 (July 1980): 631–660.
• Samuels, Ellen . “My Body, My Closet: Invisible Disability and the Limits of Coming-Out Discourse.” In “Desiring Disability: Queer Theory Meets Disability Studies.” Edited by Robert McRuer and Abby L. Wilkerson . Special issue, GLQ 9.1–2 (2003): 233–255.
• Schmidt, Nadine , and Kara Fox . “ Germany’s Third Gender Law Is Celebrated as a Revolution. But Some Say It’s Just the First Step .” CNN. December 29, 2018.
• Sedgwick, Eve Kosofsky . Between Men: English Literature and Male Homosocial Desire . 30th anniversary ed. New York: Columbia University Press, 2015.
• Serano, Julia . Whipping Girl: A Transsexual Woman on Sexism and the Scapegoating of Femininity . 2nd ed. Berkeley, CA: Seal Press, 2016.
• Shakhsari, Sima . “Killing Me Softly with Your Rights: Queer Death and the Politics of Rightful Killing.” In Queer Necropolitics . Edited by Jin Haritaworn , Adi Kuntsman , and Silvia Posocco , 93–110. Abingdon: Routledge, 2014.
• Sieber, Patricia Angela , ed. Red Is Not the Only Color: Contemporary Chinese Fiction on Love and Sex between Women, Collected Stories . Lanham, MD and Oxford: Rowman & Littlefield, 2001.
• Siebers, Tobin . “Disability and the Theory of Complex Embodiment: For Identity Politics in a New Register.” In The Disability Studies Reader . 5th ed. Edited by Lennard J. Davis , 313–332. New York and London: Routledge, 2017.
• Spillers, Hortense J. “Mama’s Baby, Papa’s May Be: An American Grammar Book.” Diacritics 17, no. 2 (Summer 1987): 64–81.
• Smith, Ali . Girl Meets Boy . Edinburgh: Canongate, 2007.
• Stockton, Kathryn Bond . The Queer Child, or Growing Sideways in the Twentieth Century . Durham, NC, and London: Duke University Press, 2009.
• Stryker, Susan . “Transgender Studies: Queer Theory’s Evil Twin.” GLQ 10, no. 2 (2004): 212–215.
• Tripāṭhī, Lakshmīnārāyaṇa . Me Hijra, Me Laxmi . Translated by R. Raj Rao and P. G. Joshi . New Delhi: Oxford University Press, 2015.
• Truth, Sojourner . “Ain’t I a Woman?” In Women in Culture: An Intersectional Anthology for Gender and Women’s Studies . 2nd ed. Edited by Bonnie Kime Scott et al., 104–105. Chichester: Wiley Blackwell, 2017.
• Weir, Allison . Identities and Freedom: Feminist Theory between Power and Connection . New York: Oxford University Press, 2013.
• Wittig, Monique . “The Straight Mind.” In The Straight Mind and Other Essays , 21–32. New York and London: Harvester Wheatsheaf, 1992.

1. Jackie Kay, Trumpet , new ed., introd. Ali Smith (London: Picador Classic, 2016), 114.

2. On public toilets as sites of violence (actual or threatened), public shaming, and other forms of exclusion towards gender non-conforming people, see Judith Halberstam, Female Masculinity (Durham, NC: Duke University Press, 1998), 22–28.

3. See BBC "India Court Recognizes" , "German Parents" , "Germany Adopts Intersex Identity" ; Hassan "Oregon Is the 1st State" ; Schmidt and Fox "Germany's Third Gender Law" .

4. Especially in the United States, the discredited, pathologizing medical diagnostic category of “Gender Identity Disorder” in DSM-III and DSM-IV has been replaced in the 2013 DSM-5 with the less offensive but still controversial “gender dysphoria.” See also Julia Serano, Whipping Girl: A Transsexual Woman on Sexism and the Scapegoating of Femininity , 2nd ed. (Berkeley, CA: Seal Press, 2016), xx.

5. Plato, The Symposium: The Dialogues of Plato Volume 2 , translated and with comments by R. E. Allen (New Haven, CT, and London: Yale University Press, 1991), 189d–e, 130.

6. Plato, The Symposium , 31.

7. On hijras see Gayatri Reddy, With Respect to Sex: Negotiating Hijra Identity in South India (London: University of Chicago Press, 2005); A. Revathi, The Truth about Me: A Hijra Life Story , translated by V. Geetha (New Delhi: Penguin, 2010); and Lakshmīnārāyaṇa Tripāṭhī, Me Hijra, Me Laxmi , translated by R. Raj Rao and P. G. Joshi (New Delhi: Oxford University Press, 2015). On muxes see Dominika Gasiorowski, “The Muxes of Juchitán: Representations of Non-Binary Gender Identities in Contemporary Photography from Mexico,” Bulletin of Hispanic Studies 95, no. 8 (2018): 895–914. On Two-Spirit see Lydia Nibley, dir., Two Spirits: Sexuality, Gender, and the Murder of Fred Martinez (Independentlens, 2009); Sarah Hunt and Cindy Holmes, “Everyday Decolonization: Living a Decolonizing Queer Politics,” Journal of Lesbian Studies 19, no. 2 (April 2015): 154–172; Qwo-Li Driskill, Asegi Stories: Cherokee Queer and Two-Spirit Memory (Tucson: University of Arizona Press, 2016); and Daniel Heath Justice, Why Indigenous Literatures Matter (Waterloo: Wilfrid Laurier University Press, 2018).

8. Simone de Beauvoir, The Second Sex , translated by Constance Borde and Sheila Malovany-Chevallier (London: Vintage, 2011), 276.

9. de Beauvoir, The Second Sex , 277.

10. de Beauvoir, The Second Sex , 279.

11. de Beauvoir, The Second Sex , 293.

12. Judith Butler, Gender Trouble (New York and London: Routledge, 1990), 140.

13. Butler, Gender Trouble ; Adrienne Rich, “Compulsory Heterosexuality and Lesbian Existence,” Signs: Journal of Women in Culture and Society 5, no. 4 (July 1980): 631–660; and Monique Wittig, “The Straight Mind,” in The Straight Mind and Other Essays (New York and London: Harvester Wheatsheaf, 1992), 21–32.

14. Butler, Gender Trouble , 139–140; Judith Butler, Precarious Life: The Powers of Mourning and Violence (London: Verso, 2004); and Judith Butler, Frames of War: When Is Life Grievable? (London: Verso, 2016).

15. Butler, Precarious Life , xv, 146.

16. Sima Shakhsari, “Killing Me Softly with Your Rights: Queer Death and the Politics of Rightful Killing,” in Queer Necropolitics , edited by Jin Haritaworn, Adi Kuntsman, and Silvia Posocco (Abingdon: Routledge, 2014), 95.

17. Jennie Livingston, dir., Paris Is Burning (Second Sight Films, 2009).

18. Jeanette Winterson, Written on the Body (London: Vintage 1993).

19. Winterson in Catherine Bush, “ Jeanette Winterson (Interview) ,” Bomb , April 1993, n.p.

20. Ali Smith, Girl Meets Boy (Edinburgh: Canongate, 2007), 83–84, my emphasis.

21. Julia Serano, Whipping Girl , xxii.

22. Serano, Whipping Girl , xiv.

23. Serano, Whipping Girl , ix, x, xxii, xxiv, my emphases.

24. Serano, Whipping Girl , xxv.

25. Serano, Whipping Girl , xiv–xv.

26. For example, see “Definitions” at TSER (Trans Student Education Resources) .

27. Justice, Why Indigenous Literatures Matter , 102; Hunt and Holmes, “Everyday Decolonization,” 170.

28. Belcourt, "Indigenous Studies Beside Itself." .

29. Driskill, Asegi Stories , 6.

30. Hunt and Holmes, “Everyday Decolonization,” 159–60.

31. Driskill, Asegi Stories , 36–37.

32. Fricker, Epistemic Injustice .

33. Najmabadi, "Teaching and Research in Unavailable Intersections." .

34. See Rosi Braidotti and others, some of whom are discussed in this section. Braidotti’s extensive work includes Rosi Braidotti, “Interview with Rosi Braidotti,” in New Materialism: Interviews and Cartographies , edited by Rick Dolphijn and Iris van der Tuin (Ann Arbor: Open Humanities Press, 2012); and Rosi Braidotti, The Posthuman (Cambridge, U.K.: Polity, 2013), 19–37.

35. Gilles Deleuze and Félix Guattari, Anti-Oedipus: Capitalism and Schizophrenia , translated by Robert Hurley et al. (London: Athlone, 1984), 42.

36. Deluze and Guattari, Anti-Oedipus , 296; see 283–296.

37. Gilles Deleuze, Difference and Repetition, translated by Paul Patton (London: Athlone, 1994).

38. Gilles Deleuze and Félix Guattari, A Thousand Plateaus: Capitalism and Schizophrenia , translated by Brian Massumi (London: Athlone, 1988), 95, 97.

39. Karen Barad, Meeting the Universe Halfway: Quantum Physics and the Entanglement of Matter and Meaning (Durham, NC, and London: Duke University Press, 2007).

40. Dorothea Olkowski, “Every ‘One’: A Crowd, Making Room for the Excluded Middle” in Deleuze and Queer Theory , edited by Chrysanthi Nigianni and Merl Storr (Edinburgh: Edinburgh University Press, 2009), 55.

41. Olkowski, "Every 'One'," 55.

42. Claire Colebrook, “On the Very Possibility of Queer Theory” in Deleuze and Queer Theory , edited by Chrysanthi Nigianni and Merl Storr (Edinburgh: Edinburgh University Press, 2009), 12.

43. Colebrook, "On the Very Possibility of Queer Theory," 12.

44. Donna Haraway, Staying with the Trouble: Making Kin in the Chthulucene (Durham, NC: Duke University Press, 2016).

45. Maria del Guadalupe Davidson, “Rethinking Black Feminist Subjectivity: Ann duCille and Deleuze,” in Convergences: Black Feminism and Continental Philosophy , edited by Maria del Guadalupe Davidson, Kathryn T. Gines, and Donna-Dale L. Marcano (Albany: SUNY Press, 2010).

46. Elizabeth Grosz, “A Politics of Imperceptibility,” Philosophy and Social Criticism 28, no. 4 (July 2002): 463–472.

47. Deleuze and Guattari, A Thousand Plateaus .

48. Jack Halberstam, Trans*: A Quick and Quirky Account of Gender Variability (Oakland: University of California Press, 2018), 95.

49. Halberstam, Trans*: A Quick and Quirky Account of Gender Variability , 52–53, 4.

50. Halberstam, Trans*: A Quick and Quirky Account of Gender Variability , 4.

51. Halberstam, Trans*: A Quick and Quirky Account of Gender Variability , 135, 136, my emphasis.

52. Halberstam, Trans*: A Quick and Quirky Account of Gender Variability , 96.

53. Kate Bornstein, Gender Outlaw (New York; London: Routledge, 1994); Maggie Nelson, Argonauts (London: Melville House, 2016); Beatriz Preciado, Testo Junkie (New York: The Feminist Press at the City University of New York, 2013).

54. Preciado, Testo Junkie , 14.

55. See, for example, Namaste’s critique of Butler: Ki Namaste, “‘Tragic Misreadings’: Queer Theory’s Erasure of Transgender Subjectivity,” in Queer Studies: A Lesbian, Gay, Bisexual and Transgender Anthology , edited by Brett Beemyn and Mickey Eliason (New York and London: New York University Press, 1996), 183–203.

56. Toril Moi, “‘ I Am Not a Woman Writer’: About Women, Literature and Feminist Theory Today ,” Eurozine , June 2009.

57. Moi, “‘I Am Not a Woman Writer,’” 7–8.

58. Monique Wittig, “The Straight Mind,” in The Straight Mind and Other Essays (New York and London: Harvester Wheatsheaf, 1992), 21–32.

59. Wittig, “The Straight Mind,” 32, 27, 31.

60. Wittig, “The Straight Mind,” 29.

61. Wittig, “The Straight Mind,” 31.

62. Sabina Lovibond, “Feminism and Postmodernism,” in Essays on Ethics and Feminism (Oxford: Oxford University Press, 2015), 18–44.

63. Lovibond, "Feminism and Postmodernism," 43.

64. Sally Haslanger, “Gender and Race: (What) Are They? (What) Do We Want Them to Be?” Noûs 34, no. 1 (March 2000), 37.

65. Haslanger, “Gender and Race," 37.

66. Haslanger, “Gender and Race," 49.

67. Haslanger, “Gender and Race," 46.

68. Haslanger, “Gender and Race," 39, 38.

69. Haslanger, “Gender and Race," 51, 40.

70. Haslanger, “Gender and Race," 40–41.

71. Haslanger, “Gender and Race," 42.

72. Haslanger, “Gender and Race," 39.

73. Katharine Jenkins, “Amelioration and Inclusion: Gender Identity and the Concept of Woman,” Ethics 126 (January 2016): 394–421.

74. Jenkins, “Amelioration and Inclusion," 394, 414.

75. Jenkins, “Amelioration and Inclusion," 415–416, 421.

76. Jenkins, “Amelioration and Inclusion," 421.

77. Jenkins, “Amelioration and Inclusion," 421.

78. See Sigmund Freud, “Female Sexuality,” in On Sexuality: Three Essays on the Theory of Sexuality and Other Works , edited by Angela Richards, translated by James Strachey (London: Penguin, 1991), esp. 376, 379, 388, 390; and Sigmund Freud, “Femininity,” in New Introductory Lectures on Psychoanalysis , edited and translated by James Strachey (Harmondsworth: Penguin, 1973), esp. 160, 164.

79. Louise Gyler 2010 , The Gendered Unconscious (London: Routledge, 2010), 24–25.

80. Rich, “Compulsory Heterosexuality.”

81. Rich, “Compulsory Heterosexuality,” esp. section 3. Rich implicitly critiques Freudian desire when she objects to the term “lesbian” in its “limiting, clinical associations in its patriarchal definition,” and counter-proposes Audre Lorde’s concept of the “erotic” as an “energy” that traverses friendship and collaboration. Rich, “Compulsory Heterosexuality,” 650.

82. Eve Kosofsky Sedgwick, Between Men: English Literature and Male Homosocial Desire , 30th anniversary ed. (New York: Columbia University Press, 2015), 4–5.

83. Sedgwick, Between Men: , 23–24.

84. Diana Fuss, “Fashion and the Homospectatorial Look,” Critical Inquiry 18, no. 4 (Summer 1992), 730.

85. Fuss, "Fashion and the Homospectatorial Look," 730.

86. Butler, Bodies that Matter , 169; Nella Larsen, Passing , edited by Thadious M. Davis (New York: Penguin, 2003).

87. See especially Butler, Bodies that Matter , 181, about “many psychoanalytic feminists” and their “claim which I want to contest, namely, that sexual difference is more primary or more fundamental than other kinds of difference, including race.” Butler describes these differences as vectors or axes of power that are interlinked and “articulated through one another.” Butler, Bodies that Matter , 182.

88. David L. Eng, “Transnational Adoption and Queer Diasporas,” Social Text 76, no. 21.3 (Fall 2003): 1–37; and Deann Borshay, dir., First Person Plural (San Francisco: National Asian American Telecommunications Association, 2000).

89. Eng, “Transnational Adoption and Queer Diasporas,” 18.

90. Eng, “Transnational Adoption and Queer Diasporas,” 17, 22.

91. Eng, “Transnational Adoption and Queer Diasporas,” 17.

92. Eng, “Transnational Adoption and Queer Diasporas,” 19, 32.

93. Eng, “Transnational Adoption and Queer Diasporas,” 19.

94. José Esteban Muñoz, Disidentification: Queers of Color and the Performance of Politics (Minneapolis and London: University of Minnesota Press, 1999), 5.

95. Butler, Bodies that Matter , 219.

96. José Esteban Muñoz, Disidentifications , 18, 12.

97. Muñoz, Disidentifications , 18.

98. Muñoz, Disidentifications , 12, 18.

99. Muñoz, Disidentifications , 31.

100. Driskill, Asegi Stories , 37.

101. See their websites, Instagram, and Twitter accounts as well as their performances, poetry readings, lectures, talks, and interviews on YouTube. For example, see Vaid-Menon’s Keynote at the LISTEN conference; Alabanza’s 2016 performance piece at the Tate; and Alabanza’s 2017 interview with AZ Mag UK.

102. Sojourner Truth, “Ain’t I a Woman?” in Women in Culture: An Intersectional Anthology for Gender and Women’s Studies , 2nd ed., edited by Bonnie Kime Scott et al. (Chichester: Wiley Blackwell, 2017), 104–105.

103. Hortense J. Spillers, “Mama’s Baby, Papa’s May Be: An American Grammar Book,” Diacritics 17, no. 2 (Summer 1987), 68, 72, 78.

104. See Patricia Hill Collins, Black Feminist Thought , 2nd rev. ed. (New York and London: Routledge, 2000); and Kimberle Crenshaw, “Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color,” Stanford Law Review 43, no. 6 (July 1991): 1241–1299. One of the earliest theorizations of intersectionality was Frances M. Beal’s “Double Jeopardy: To Be Black and Female” [1969, 1970], Meridians 8, no. 2 (January 2008): 166–176. It was followed by “The Combahee River Collective Statement” (1977), with the Collective’s meetings dating back to 1974, in All the Women Are White, All the Blacks Are Men, but Some of Us Are Brave: Black Women’s Studies , edited by Akasha Gloria Hull, Patricia Bell-Scott, and Barbara Smith, 2 nd ed. (New York City: The Feminist Press at the City University of New York, 2015), 41–47; the collection by Cherríe Moraga and Gloria Anzaldúa, eds., This Bridge Called My Back [1981], 4 th ed. (Albany: State University of New York Press, 2015); and Angela Y. Davis, Women, Race & Class [1981] (London: Women’s Press, 2001).

105. Collins, Black Feminist Thought , 12–13, 17–18.

106. Ange-Marie Hancock, Intersectionality: An Intellectual History (Oxford: Oxford University Press, 2016), 25, 26, 32–33.

107. Hancock, Intersectionality: An Intellectual History , 27.

108. Hancock, Intersectionality: An Intellectual History , 34.

109. Tsitsi Dangarembga, Nervous Conditions (London: Women’s Press, 1988).

110. Assia Djebar, Women of Algiers in Their Apartment [1980], translated by Marjolijn De Jager (Charlottesville: University Press of Virginia, 1992); Toni Morrison, Tar Baby [1981] (London: Chatto & Windus, 1993); Jamaica Kincaid, Lucy [1990] (London: Cape, 1991); Yvonne Vera, Butterfly Burning (New York: Farrar, Straus and Giroux, 1998); and Arundati Roy, The Ministry of Utmost Happiness (London: Hamish Hamilton, 2017).

111. Nina Baraoui, Garçon manqué (Paris: Stock, 2000); Chris Abani, Becoming Abigail (New York: Akashic, 2006).

112. Toni Morrison, Playing in the Dark (Cambridge, Mass and London: Harvard University Press, 1992); and Willa Cather, Sapphira and the Slave Girl (New York: A. A. Knopf, 1940).

113. Rosemarie Garland-Thomson, “Integrating Disability, Transforming Feminist Theory” in “Feminist Disability Studies,” edited by Kim Q. Hall, special issue, NWSA Journal 14, no. 3 (Autumn 2002), 10.

114. Garland-Thomson, “Integrating Disability, Transforming Feminist Theory,” 14, 5, 6.

115. Garland-Thomson, “Integrating Disability, Transforming Feminist Theory,” 7, 10.

116. Garland-Thomson, “Integrating Disability, Transforming Feminist Theory,” 28, 5.

117. Garland-Thomson, “Integrating Disability, Transforming Feminist Theory,” 5, 21.

118. Garland-Thomson, “Integrating Disability, Transforming Feminist Theory,” 5, 9.

119. Ellen Samuels, “My Body, My Closet: Invisible Disability and the Limits of Coming-Out Discourse” in “Desiring Disability: Queer Theory Meets Disability Studies,” edited by Robert McRuer and Abby L. Wilkerson, special issue, GLQ 9.1–2 (2003), 234.

120. Samuels, “My Body, My Closet,” 241.

121. Samuels, “My Body, My Closet,” 243.

122. Robert McRuer, Crip Theory: Cultural Signs of Queerness and Disability (New York: New York University Press, 2006), 2.

123. McRuer, Crip Theory , 1–2.

124. McRuer, Crip Theory , 10.

125. McRuer, Crip Theory , 30.

126. Tobin Siebers, “Disability and the Theory of Complex Embodiment: For Identity Politics in a New Register” in The Disability Studies Reader , 5th ed., edited by Lennard J. Davis (New York and London: Routledge, 2017), 324.

127. Siebers, “Disability and the Theory of Complex Embodiment,” 321.

128. Siebers, “Disability and the Theory of Complex Embodiment,” 323.

129. Siebers, “Disability and the Theory of Complex Embodiment,” 322.

130. Siebers, “Disability and the Theory of Complex Embodiment,” 325.

131. Siebers, “Disability and the Theory of Complex Embodiment,” 325, 328.

132. Charles Dickens, Oliver Twist , edited by Kathleen Tillotson (Oxford: Oxford University Press, 1966); Our Mutual Friend , edited by Adrian Poole (London: Penguin, 2012); Hard Times , edited by Paul Schlicke (Oxford: Oxford University Press, 1998); David Copperfield , edited by Clare West (Oxford: Oxford University Press, 1994). Elizabeth Barrett-Browning, Aurora Leigh , edited by Kerry McSweeney (Oxford: Oxford University Press, 1998). H. Rider Haggard, King Solomon’s Mines , edited by Robert Hampson (London: Penguin, 2007).

133. For example, see Immanuel Kant, The Metaphysics of Morals , edited and translated by Mary Gregor (Cambridge, U.K.: Cambridge University Press, 1996), 6:445.

134. In Anne McClintock, Imperial Leather (New York; London: Routledge, 1995), esp. “The Lay of the Land” (21–74). See also Charles Dickens, Bleak House , edited by Stephen Gill (Oxford: Oxford University Press, 1998).

135. Alice Walker, Color Purple (London: Women’s Press, 1983); and Toni Morrison, The Bluest Eye (London: Picador, 1990).

136. Charles Dickens, Oliver Twist , 58.

137. Charles Dickens, Tom Tiddler’s Ground (London: Chapman and Hall, 1861). See also Chris Louttit, Dickens’s Secular Gospel: Work, Gender, and Personality (New York: Routledge, 2009), esp. “Dicken’s Idle Men.”

138. Charles Dickens, Hard Times .

139. Frederick Douglass, Narrative of the Life of Frederick Douglass, an American Slave , edited by Deborah E. McDowell (Oxford: Oxford University Press, 2009).

140. Benjamin Franklin, Autobiography and Other Writings , edited by Ormond Seavey (Oxford: Oxford University Press, 1993); and Frederick Douglass, “Self-Made Men,” in The Speeches of Frederick Douglass: A Critical Edition , edited by John R. McKivigan (New Haven, CT: Yale University Press, 2018), 209–226.

141. Douglass, “Self-Made Men,” 216, 215, 211.

142. Douglass, “Self-Made Men,” 222, 219.

143. Jane Austen, Mansfield Park , edited by Deidre Lynch (Cambridge, MA: Belknap Press of Harvard University Press, 2016); and Charlotte Brontë, Jane Eyre , edited by Deborah Lutz, 4 th ed. (New York: W.W. Norton, 2016).

144. Toni Morrison, A Mercy (London: Chatto & Windus, 2008).

145. Gail Bederman, Manliness and Civilization: A Cultural History of Gender and Race in the United States, 1880–1917 (Chicago and London: University of Chicago Press, 1995), 172, 180, 181.

146. Ava DuVernay, dir., 13th (Kandoo Films, 2016); D. W. Griffith, dir., The Birth of a Nation (David W. Griffith Corp., 1915).

147. Beauvoir, The Second Sex , 5.

148. R. W. Connell, Masculinities , 2nd ed. (Cambridge, U.K.: Polity, 2005).

149. Controversial US theorist Michael Kimmel has also defined the field. The journal, Men and Masculinities , edited by Kimmel, was launched in 1998. His Angry White Men: American Masculinity at the End of an Era (New York: Nation Books, 2013, 2017) discusses the aggrieved entitlement of white blue-collar men in the United States. His “Preface” to the 2017 edition connects this phenomenon with the election of President Trump. His Guyland (New York: HarperCollins, 2008) discusses a recent trend in men who don’t want to grow up because it is not rewarding, and who prefer a homosocial enclave. See also Todd W. Reeser, Masculinities in Theory: An Introduction (Chichester: Wiley-Blackwell, 2010).

150. Judith Halberstam, Female Masculinity .

151. Crenshaw in Devon W. Carbado, ed., Black Men on Race, Gender, and Sexuality: A Critical Reader , Foreword by Kimberle Crenshaw (New York: New York University Press, 1999), xiii.

152. Black Men on Race, Gender, and Sexuality , 3.

153. Black Men on Race, Gender, and Sexuality , 418.

154. Black Men on Race, Gender, and Sexuality , 431.

155. Black Men on Race, Gender, and Sexuality , 431.

156. Black Men on Race, Gender, and Sexuality , 427, 427ff.

157. James Baldwin, Another Country (London: Michael Joseph, 1963); “Here Be Dragons” in The Price of the Ticket: Collected Non-Fiction, 1948–1985 (New York: St. Martin’s Press, 1985), 677–690; and The Last Interview and Other Conversations (New York: Melville House, 2014).

158. Ralph Ellison, Invisible Man (Harmondsworth: Penguin, 1965); Herman Melville, Moby Dick, edited by Hershel Parker and Harrison Hayford, 2 nd ed. (New York; London: Norton, 2001); Cormac McCarthy, Blood Meridian , new ed. (London: Picador, 2015); Junot Díaz, The Brief Wondrous Life of Oscar Wao (London: Faber and Faber, 2009).

159. Beauvoir, The Second Sex , 293.

160. Johann Wolfgang von Goethe, Wilhelm Meister’s Apprenticeship , edited and translated by Eric A. Blackall with Victor Lange (Princeton: Princeton University Press, 1995).

161. Franco Moretti, The Way of the World: The Bildungsroman in European Culture , new ed., translated by Albert Sbragia (London: Verso, 2000).

162. o Moretti, The Way of the World , 229ff., 234.

163. See Jacobus, "The Question of Language" ; Abel et al. The Voyage In ; Fraiman Understanding Women ; McWilliams Margaret Atwood and the Female Bildungsroman .

164. George Eliot, Mill on the Floss , edited by Gordon Sherman Haight (Oxford: Oxford University Press, 1996). Charlotte Perkins Gilman, The Yellow Wallpaper , edited by Thomas L. Erskine and Connie L. Richards (New Brunswick, N.J.: Rutgers University Press, 1993). Kate Chopin, The Awakening (London: Women’s Press, 2002). Virginia Woolf, The Voyage Out , edited by Lorna Sage (Oxford: Oxford University Press, 1992). Elizabeth Bowen, The Last September (London: Vintage, 1998); see also Esty 2007 . Jean Rhys, Wide Sargasso Sea , edited by Angela Smith (London: Penguin, 1997).

165. For an early critique particularly of coming-out narratives see Biddy Martin, “Lesbian Identity and Autobiographical Difference(s),” in The Lesbian and Gay Studies Reader , edited by Henry Abelove, Michèle Aina Barale, and David M. Halperin (New York: Routledge, 1993), 2742–2793. Margaretta Jolly, “Coming Out of the Coming Out Story: Writing Queer Lives,” Sexualities 4, no. 4 (November 2001): 474–496 expands on Martin, attending to their “western specificity” (474), in contrast to Anchee Min’s Red Azalea . Min, Jolly argues, does not prioritize “either lesbian, bisexual or heterosexual object choice,” unlike (Western) coming-out narratives where “one sexual object (even if never a desired one) is renounced for another and the private sphere is publicized.” Jolly, “Coming Out,” 490.

166. Audre Lorde, Zami (London: Penguin, 2018); Jeanette Winterson, Oranges Are Not the Only Fruit (London: Vintage, 2011); and Leslie Feinberg, Stone Butch Blues (Ithaca, N.Y.: Firebrand Books, 1993).

167. See Bruhm et al. Curiouser: On the Queerness of Children ; Stockton The Queer Child, or Growing Sideways .

168. See Edelman No Future versus Muñoz Cruising Utopia and Halberstam The Queer Art of Failure .

169. For a critical survey see Robert Bittner, Jennifer Ingrey, and Christine Stamper, “Queer and Trans-Themed Books for Young Readers: A Critical Review,” Discourse: Studies in the Cultural Politics of Education 37, no. 6 (2016): 948–964.

170. Julie Anne Peters, Luna (New York: Little, Brown, 2006) and Meredith Russo, If I Was Your Girl (London: Usborne, 2016).

171. Cathy Cohen, “Punks, Bulldaggers, and Welfare Queens,” GLQ 3, no. 4 (1997): 437–465.

172. Katherine Mansfield, “Prelude” in Bliss and Other Stories (New York: Alfred A. Knopf, 1920); Vita Sackville-West, All Passion Spent (London: Vintage, 2016).

173. Thomas Hardy, Jude the Obscure , edited by Patricia Ingham (Oxford: Oxford University Press, 1998). Going further back see Ana de Freitas Boe and Abby Coykendall, eds., Heteronormativity in Eighteenth-Century Literature and Culture (Farnham, Surrey; Burlington, VT: Ashgate, 2014).

174. Clare Chambers, Against Marriage: An Egalitarian Defence of the Marriage-Free State (Oxford: Oxford University Press, 2017).

175. Lisa Duggan, “The New Homonormativity: The Sexual Politics of Neoliberalism” in Materializing Democracy: Towards a Revitalized Cultural Politics , edited by Russ Castronovo (Durham, NC: Duke University Press, 2002), 191, n.9.

176. Collins, Black Feminist Thought , 178–179.

177. See also How Do I Look (2006), a documentary on the drag ball culture in Harlem and Philadelphia over a ten-year period, directed by Wolfgang Busch.

178. Hortense J. Spillers, “Mama’s Baby, Papa’s May Be: An American Grammar Book,” Diacritics 17, no. 2 (Summer 1987): 64–81; Judith Butler, “Critically Queer,” GLQ 1, no. 1 (November 1993): 17–32; and Ellen K. Feder, Family Bonds: Genealogies of Race and Gender (Oxford and New York: Oxford University Press, 2007).

179. See Michel Foucault, The History of Sexuality Volume 1: The Will to Knowledge , translated by Robert Hurley (Harmondsworth: Penguin, 1998).

180. Michel Foucault, “Different Spaces,” translated by Robert Hurley, in Aesthetics, Method, and Epistemology , edited by James D. Faubion (London: Penguin, 2000), 178.

181. Foucault, "Different Spaces," 180.

182. Foucault, “Friendship as a Way of Life,” translated by John Johnston, in Ethics: Subjectivity and Truth , edited by Paul Rabinow (London: Penguin, 2000), 135–137.

183. Foucault, “Friendship as a Way of Life,” 137–138.

184. Foucault, “Friendship as a Way of Life,” 138.

185. Judith Halberstam, In a Queer Time and Place: Transgender Bodies, Subcultural Lives (New York: New York University Press, 2005), 13.

186. Halberstam, In a Queer Time and Place , 13.

187. Judith Halberstam, “F2M: The Making of Female Masculinity,” in Feminist Theory and the Body: A Reader , edited by Janet Price and Margrit Shildrick (New York: Routledge, 1999), 125–133.

188. See Halberstam 2014 .

189. Susan Stryker, “Transgender Studies: Queer Theory’s Evil Twin,” GLQ 10, no. 2 (2004), 198.

190. Allison Weir, Identities and Freedom: Feminist Theory between Power and Connection (New York: Oxford University Press, 2013).

191. On communities of self-wedded sworn sisters see Zhang Mei’s short story, “A Record,” in Red Is Not the Only Color: Contemporary Chinese Fiction on Love and Sex between Women, Collected Stories , edited by Patricia Angela Sieber (Lanham, MD and Oxford: Rowman & Littlefield, 2001), 73–91. See also Rokeya Sakhawat Hossain, Motichur: Sultana’s Dream and Other Writings of Rokeya Sakhawat Hossain , edited and translated by Ratri Ray and Prantosh Bandyopadhyay (New Delhi, India: Oxford University Press, 2015); and Charlotte Perkins Gilman, Herland (London: Women’s Press, 2001).

192. Haraway, Staying with the Trouble .

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