abstract:
For transgender people, it is a kind of happiness to be able to change gender and pursue the expected life, but it also causes a series of problems as a social phenomenon. The medical regulations for sex-change surgery need to be further standardized, and the law should not stick to the traditional concept without seeking reform, at least make relevant adjustments in legal interpretation. With the development of transsexual surgery, it is also required to adjust and standardize transsexual behavior in law, and the two are complementary. The law must face the reality and make a reasonable response to social movements in time. Only with corresponding legal norms can we solve new problems such as sex-change surgery more scientifically and enable people to exercise their physical rights and health rights according to law.
Key words:
Legal controversy over the medical norms of sex change in sex change surgery
With the improvement of medical technology in China, the word "transsexual surgery" which we have never been exposed to before has appeared frequently in various media reports, and the accompanying "transsexual person" has also changed from a pure concept or imaginary thing to a role that cannot be ignored in real life. As a special group, it has entered people's field of vision and is increasingly known by people. Of course, as an independent individual, a natural person can choose his own behavior, which makes it possible to perform sex-change surgery. But at the same time, some problems related to surgery, such as legal ethics, should also be paid attention to. The state should fill the legal gap as soon as possible and establish and improve the corresponding rules and regulations.
First, the ideological and legal basis of the feasibility of transsexual surgery
In ancient Greece, idealistic philosophers Plato and Aristotle first noticed the selectivity of human behavior, that is, they affirmed that human beings had freedom of will. Influenced by the French Enlightenment, the Declaration of Human Rights clearly stipulates that people are born free and always equal. Legally, the constitution gives everyone freedom, which is manifested in the right to act or not to act within the scope permitted by law. Any kind of behavior, as long as it does not harm the legitimate rights and interests of others, as long as it does not interfere with the freedom of others, should be allowed by law. This is the best interpretation of freedom. With the progress of society, people's pursuit of their own spiritual values is getting higher and higher, and the oppression, distress, helplessness and pain caused by the traditional gender cognition distortion have reached the maximum. The new concept of freedom brought by progress has completely broken down the barriers of traditional values.
The feasibility of transsexuality can be explained by the physical rights of natural persons. As far as personal rights are concerned, gender has only identity meaning but no personality meaning, but from the perspective of civil law, gender has its legal effect not only in the field of identity but also in the field of personality for natural persons. The legal significance of gender to the personality of a natural person belongs to a natural right before legal confirmation and a legal right after legal confirmation, that is, gender right. Once sexual rights become legal rights, together with the right to life, body, name and portrait, they constitute the unique personality rights of natural persons. In this legal environment, people have the right to change their gender, just like changing their names. From the perspective of natural human rights, sex-change surgery in society is the expression of human nature and natural human rights. As long as there is no explicit prohibition law, the parties concerned are deemed to have the right to exercise this right. From the perspective of legal rights, it is the performance of people exercising their legal rights. From the legal order of personality interests, body and health belong to material personality elements, while name, gender and portrait belong to spiritual personality elements. It is a natural demand of human beings to acquire and maintain spiritual personality elements at the expense of reasonable disposal of material personality elements, which should be respected by law.
Second, the development status of transsexual and transsexual surgery
Dr. Harry Benjamin, a famous expert in psychiatry, sexology and endocrinology, has an incisive exposition on sex and gender: "I want to remind you of a basic fact: the difference between sex and gender." Sex is what you see, and gender is what you feel. The coordination of the two is crucial to the happiness of mankind. "Sex here refers to anatomical sex; Gender is psychological gender or gender identity, that is, a person's self-awareness of whether he is a man or a woman. For most people, the two are in harmony. But few people are the opposite. A physical male or female individual, although clearly aware of his physical gender, psychologically feels that he is the opposite sex and is eager to change his physical gender. 1949, an expert called this phenomenon "transsexuality" for the first time, and such individuals were called "transsexuals". Ho in South Korea, known as "Adam who becomes Eve", is a typical example. His sex chromosome is XY, obviously male. But he said that he never thought of himself as a man, and he decided to have sex-change surgery when he was a sophomore.
So what is sex-change surgery? Its English name is Gender-change Surgery, or GCS for short. It is a plastic surgery with the removal and reconstruction of male and female organs as the main content, supplemented by some other treatment methods. The main case of transsexual surgery is transsexuality, and its main purpose is to make transsexuals realize their dream of giving up their original anatomical gender and becoming the opposite sex through organ changes. From 65438 to 0969, Green and Qian demonstrated the scientificity and necessity of surgical treatment for transsexuality for the first time, and published the book "Transsexualization and Transsexualization Surgery". 193 1 year, the world's first transsexual operation appeared, which caused an uproar at that time.
The first publicly reported transsexual surgery in China was performed by Professor He Qinglian from the Second Military Medical University in Shanghai Changzheng Hospital in the late 1980s. In recent years, the number of people asking for sex-change surgery has greatly increased. It is reported that there are about 1000 cases of sex-change surgery in China.
Three, the conditions of transsexual surgery and industry regulations.
China should refer to foreign legislation and combine its own specific national conditions to formulate specific application and implementation conditions for sex-change surgery:
First, medical institutions that perform sex-change surgery must obtain permission from the administrative department of health, and it is forbidden for medical institutions that have not obtained permission to perform sex-change surgery on people. Strict examination and licensing system should be adopted for the surgical institutions designated by the state, and the national health department should select several hospitals as designated hospitals to carry out sex-change surgery nationwide according to the talents and technical equipment experts of the hospitals.
Second, clearly determine the criteria for degeneration. The main basis for judging whether you are a transsexual person is clinical manifestations. To determine this standard in China, we can refer to the diagnostic standard 1980 of the third edition of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association.
Third, a specific relative must give written consent and sign it before the operation, and the next of kin has no objection.
Fourth, issue relevant certificates, such as the certificate that the mental hospital excludes mental illness, and the public security department proves or obtains the approval of the public security department.
Fifth, the parties who perform sex-change surgery should apply to medical institutions, and the medical institutions that perform sex-change surgery will make a decision on approval or disapproval after reviewing according to the laws and medical operating procedures.
Finally, the relevant medical units and health authorities that perform sex-change surgery should register the parties who apply for sex-change surgery and establish special medical files for future reference.
Four, related legal issues caused by transsexual surgery.
At present, China's legislation regulating the rights and interests of transgender people is in a state of absence, and the legislative department remains silent about it. Sex-change surgery in China is in a legal blank or marginal state.
(1) Whether transsexual surgery constitutes other crimes, such as intentional injury, and whether it constitutes a crime, has aroused heated discussion in the criminal law circle.
Han Youyi, a doctor of law in Peking University, believes that doctors who perform sex-change surgery are suspected of committing crimes. Han Youyi said that the right to physical health and the right to life are basic rights of citizens, which should not be violated at will, but citizens can punish their right to physical health to a certain extent, such as allowing others to beat themselves, which is not illegal. However, this punishment is not unlimited. Although there is no direct provision in our criminal law, it can be introduced from judicial practice and legislative spirit. When causing serious injury or death, the victim's permission cannot exempt the other party from criminal responsibility. Chen Xingliang, a professor at Peking University Law School, believes that sex-change surgery is a medical act and doctors have no intention of hurting it. "It is not a crime for doctors to have sex-change surgery," he said. "It can be understood that it is a medical act for doctors to perform sex-change surgery, and at the same time, it must meet the subjective and objective four elements to constitute a crime. When doing sex-change surgery, doctors consider how to reduce patients' pain, at least psychological pain, and make them live better and happier. There is no criminal intent to harm them, so it lacks the subjective aspect of crime and cannot be considered as a crime. "
Ruan Qilin, a professor at China University of Political Science and Law, holds a more eclectic view. He believes that whether it constitutes a crime depends on the purpose of transsexuality, not across the board. If the patient with transsexual surgery has a heart disease and other methods can't cure it, then only transsexual surgery can alleviate this pain. At this time, transsexual surgery has positive therapeutic significance and belongs to medical behavior. However, if the party involved in the transsexual surgery requests the transsexual surgery for reasons other than illness, the transsexual surgery has no therapeutic significance at this time and does not belong to medical behavior.
In view of the above three points, I agree with Professor Ruan Qilin of China University of Political Science and Law. Subjective content is the key element of whether it constitutes a crime. If sex-change surgery is performed to avoid illegal purposes such as investigation, it should be regarded as a criminal act, and it should be distinguished whether the doctor knows it or not. If a doctor knows that the party involved in sex-change surgery is helping him for illegal purposes, he should be convicted and punished for the same crime and bear corresponding criminal responsibility. If the doctor commits the act without knowing it, but not intentionally out of injury, it does not constitute a crime. At the same time, within the scope of whether it constitutes a crime, we should also consider the attitude of transgender people themselves. If transsexuals are forced or coerced to undergo transsexual surgery and cannot adapt to social life or accept reality after operation, the relevant person in charge and medical institutions shall bear criminal responsibility and corresponding civil compensation.
(2) Changes in the household registration of transgender people after sex-change surgery.
China's legislation on transgender people is in a blank state. Before 2008, there was no corresponding provision for transgender people to change their household gender. Many transgender people seem to be in a vacuum and genderless state after surgery.
Henan province is the first province that can change its household registration after a definite gender change. In order to solve the dilemma faced by transgender people, the Jiangxi Provincial Public Security Department has also issued a special document to clarify the procedures for changing their household registration after sex-change surgery: citizens who undergo sex-change surgery should provide gender identification certificates issued by domestic tertiary hospitals, notarized certificates issued by notary departments or certificates issued by judicial identification departments, and re-apply for gender change procedures after approval by the competent departments of local (city) public security organs. Among them, those who have received resident identity cards shall be cancelled by the public security organs and re-applied for resident identity cards. This approval means that Jiangxi Province has become the second province that can change its registered permanent residence after Henan Province. The Public Security Police Corps of Shandong Provincial Public Security Bureau also received the above similar reply, and other provinces also carried out household registration.
But at the same time, it may also provide an opportunity for some illegal acts, and it is urgent to legislate the scale of household registration management and adjust the norms of household registration migration nationwide.
(3) Marriage and family problems caused by transsexual surgery.
The Ministry of Civil Affairs recently gave a clear answer to the marriage problem of transgender people in China. The marriage registration of transgender people is legal and valid, and the dissolution of marriage is handled with reference to the divorce agreement. In an exclusive interview with Xinhua News Agency, the relevant person in charge of the Ministry of Civil Affairs pointed out: Although transsexual surgery has been gradually understood and recognized by people, the laws and regulations on marriage and other aspects have not made specific provisions for this particular group. So this answer applies to all similar situations. At the same time, the person in charge stressed that transgender people, like other citizens in China, have the right to freely register marriage with the opposite sex in accordance with the Marriage Law, and there is no legal obstacle. However, transsexuals have the right and freedom to get married, but when they want to get married, they must first fulfill their obligation to inform each other and let them know that they are transsexuals, so that they can make a choice whether to get married or not. If the other party still agrees to marry the transgender after being told, it is deemed that he has given up his reproductive rights with the transgender.
It is unrealistic to demand a complete legislative system in the current situation that there is a blind spot in legislation. It is an urgent task to standardize and guide the legal issues of transsexual surgery more quickly, pertinently and purposefully through the administrative regulations of the Ministry of Health, but it can only be an expedient measure, and more perfect legislation needs to be established urgently. In the words of Dr. Chen Huanran, "With the development of the times and the progress of social civilization and science, we believe that one day human beings will have a clearer understanding of the nature of transsexuality, so that it is possible to fundamentally overcome this disease, so that transsexuals can no longer endure the pain of mental torture and have the opportunity to enjoy beauty, love and happiness like healthy people.
References:
[1] norm. Transgender notes. Lijiang publishing house. 1999 version.
[2] Fang Gang. Transgender people in China. Guangzhou Publishing House. 1996.
[3] Zhu editor. Sociology of law. Renmin University of China Press. 2005 edition.
[4] Wei Zhenying editor. Civil law. Higher education press. 2000 edition.
[5] Gao Mingxuan, edited by Ma Kechang. Criminal Law (3rd Edition). Higher Education Press, 2007.
[6] Zhang Wenxian. Jurisprudence (third edition). Higher education press. 2007 edition.