Clearly Sweden does not wish to ‘control’ the behaviour of trans people, unless it is motivated in some special way. You can wear what you would like, so long as your motive is purely to cross dress. Sexual titillation will not make it wrong in fact, it is evidence of the innocence of your behaviour. You are harmless, even sane, unless you have the wrong motive; a desire to live your life as a member of your opposite natal sex group, whilst wearing the once forbidden clothes.
If I was to discuss his in terms used in the criminal law, cross dressing might be described as being the actus reus (the criminal act), and except in very limited circumstances, (such as getting parking tickets), if cross dressing was a crime you would be convicted of the offence of cross dressing if you also had a mens rea (a guilty mind), i.e. you cross dressed knowingly whilst knowing it would cause offenSE.
What is the OffenCE?
In the criminal law if you have an actus reus (eg. flung out your arm) and a mens rea (intended to break the man’s nose) for the criminal offence then you will be convicted, unless you have an appropriate defence. A defence can be mounted, which can be either be full or partial. If full, i.e. you did not fling out your arm, or you did not intend to hit the man) you cannot be convicted of causing grievous bodily harm.
If partial (you flung out your arm, because you have epilepsy, and forgot to take your medication, and so flung it out without any conscious control) your offence can be downgraded, in this case from causing grievous bodily harm to common assault due to diminished responsibility, i.e. you carry some responsibility as an epileptic who knows he is epileptic you should take all your medications to ensure this sort of thing doesn’t happen.
We have recently seen an example of the partial defence at work in the Crown Court, whereby Angela Gordon, who along with her partner, caused her daughter, Khyra Ishaq, to die from malnutrition has been convicted of manslaughter. During the time leading up to Khyra’s death, Gordon was found to have suffered a deep clinical depression. Consequently the judge directed the jury to find her not guilty of murder but instead find her guilty of manslaughter, i.e. Gordon killed Khyra unlawfully but under circumstances in which Gordon did not intend or foresee her daughter’s death. Her partner, Junaid Abuhamza, is schizophrenic and had already been similarly convicted of manslaughter.
Criminal law is simple , it is basic kindergarten mathematics that goes like this:
- no actus reus + no mens rea = acquittal
- actus reus + mens rea = conviction
- actus reus + no mens rea = acquittal,
- no actus reus + mens rea = acquittal
- conviction + full defence = acquittal
- conviction + partial defence = conviction of a downgraded offence.
What is the OffenSE?
Our cross dresser, has done the act of ‘being a man wearing female clothing’, which, if it was a criminal offence, could result in conviction if they had a related guilty mind. But in Sweden, you can wear what you like, so long as your intention is pure – like trainspotting only in frilly knickers. There is no guilty mind for those who return to work the next day as their same old, asperger-ed, self, still wishing to play with the train set in the attic. Cross dressing whether your wife’s lace panties and bra, or full drag for Stockholm Pride is, in other words, entirely innocent, so long as you are not thinking anything more than enjoying the feel of the lace panties and bra.
So, In Sweden, if you go out cross dressed, you will not be stopped by the police. Nor will any hospital or doctor be interested in you. The act of cross dressing is neither an offense nor an offence.
A small problem with this discussion, is that Sweden does not seem to distinguish between trans women and trans men. It may be my poor (non-existent) translation skills but it seems they assume cross dressing as essentially a male behaviour. Thus the following discussion is slightly askew, as it is very difficult to determine what exactly is their attitude towards trans men, so instead I will presume that as they think that the actus reus is wearing clothing of the opposite sex and the mens rea is expressing the desire for gender reassignment, therefore the sooner the trans man and the trans woman undergoes psychiatric assessment and treatment, the better it is for all, as they will no longer be cross dressing nor will they be desiring of gender reassignment treatments.
But we do face the problem of exactly what is the guilty act is. Is it wearing clothing of the opposite natal sex, or is it the wearing of women’s clothes by people who say "I am a man". It clearly is neither. So is it women wearing men’s clothes, or men who say “I am a man” wearing men’s clothes, or is it simply wearing clothes other people disapprove or. Well it is none of those either. Yet it is also clear that that having the gender identity, i.e. thinking of oneself as being a man or a woman, in and of itself, cannot be guilty act. Most people have one of those two gender identities.
But clearly no matter the extent of your cross dressing, it becomes an offense in some circumstances only. Not an offence in law, but certainly an offense against the state of the Swedish State. It seems you will cause offense if you do the act and/or express that guilty thought with an intention to think it. This takes some sorting out: Clearly the actus reus is not just wearing the knickers, but it is includes in the guilty act. The act of THINKING at the same time of wearing the knickers that perhaps you wish to live as a member of the opposite sex, also constitutes part of the guilty act. So if the thinking is part of the actus reus, what constitutes the mens rea? Transsexualism is one of those rare offenses where the thought behind an act matters as much if not more than the act itself.
The full state of the offense is the guilty act i.e, doing and thinking, and something which constitutes the guilty mind, and a guilty mind – which can only therefore be the expression of the guilty act. So you are mentally disordered if you have transsexualism, i.e. if at the time you are cross dressed you express to a third party that you think you wish to change your gender. The cross dressing combined with the thinking has become the actus reus of an offense and the expression of that thought to a third party becomes the mens rea of the offense.
When reviewing this position in depth, we find ourselves having to think about whether this categorisation of transsexuality as a mental health disorder has any basis in fact. Fortunately this is a blog and not an academic paper, and so I do not need to worry about the niceties such as references and footnotes or bibliographies. Secondly, this is opinion and not journalism. As we found out recently, in the Press Complaints Commissions’ pronouncement on the behaviour of the journalist - - sorry, column writer - - Jan Moir, who untruthfully reported - - sorry, opined - - that Stephen Gately suffered a lonely, addicted, drunken death, on the sofa while his male partner slept with somebody else in the room next door, which is apparently the fate of all Gay men, opinion writers do not need to tell the truth at all, not even a little bit of it. Unlike Jan Moir, however I am not going to lie when I opine.
I want to know why any physician would wish to continue a mental health categorisation for a group of people whose behaviour seems identical to that of another group of people. Of course the two groups are not quite identical, transsexual people appear to be in some ways more rational and therefore saner, as they frequently dress much more sensibly for the situation they are in. They know to wear jeans when gardening or boots when rambling, and they do not wear 8” stilettos whilst marching in Pride.
Why would they do that when it is well known, even amongst some Swedes, that such categorisation will have a severe impact on the individual’s well-being. We know it will result in the ‘real’ mental health problems of severe anxiety, depression, feelings of worthlessness, alcoholism, and addictive drug use, especially tobacco products. These will in turn cause further health problems as well as leading to workplace exclusion, family breakdown and social isolation. In turn, these people often become a problem for the state, requiring social welfare input, involving financial and social services support. We also know that none of this would arise if the person did not have a real fear of consequent prejudice, discrimination and violence that comes with being diagnosed as having the mental health disorder of transsexualism. .
Now it is only those trans people with the guilty expression of the guilty thought as well as the guilty act that are of interest to psychiatry (presuming all Swedish psychiatrists enjoyed forensics when at university). Presumably some psychiatric services may still be seeing some transvestites, but as with homosexuality, I believe, the numbers seeking psychological care will fall considerably over the next 10 years, as transvestite people discover they are no longer socially stigmatised.
I also would suggest that as there is no documented case of a cure of a transsexual person by the psycho professions anywhere within the scientific literature (though there are some churches who profess to achieved such a miracle), it would seem therefore the only treatment we have available to stop the [‘transsexual’] behaviour is gender reassignment. I will opine therefore that in Sweden, we should assume the sooner we can catch and ensure our transsexual citizens access the assessment and treatment process in a prompt and timely manner, and commence permanently living in their preferred gender role, the safer (nicer?) it will be - not just for them, but for all of us. After all we simply don’t want them around whilst they are still transsexual and causing such great offense, but our only alternative is to help them become the men and women they say they are, and so stop them wanting to cross dress.
Yet in Sweden, though some gender identity clinics are marvellous and progressive, in action as well as thought, clearly as can be seen from the new activism in Sweden, many clinics are still illogical in their approach, making it as difficult as possible for transsexual people to obtain gender reassignment treatments and to transition.
FREDA: Human Rights and Trans People
For a moment , lets pause and think about the principles of human rights; Fairness, Respect, Equality, Dignity and the right to Autonomy (Freda – not Frida as in the second most important event in Sweden’s history, the formation of ABBA) . It seems clear to me that this decision, which has just been embodied in Swedish law lacks fairness, fails to afford respect or dignity, certainly produces an unequal result and in the transsexual person’s case assumes they are not capable of their own autonomous decision making.
In de-pathologising cross dressing, any transvestite behaviour in itself is now harmless, so the first thing that needs to be arranged is a formal apology by the Swedish government to the many transvestites who have suffered inhuman treatments like aversion therapy, chemical castration and other bizarre medical regimes in the not too distant past. In the 1970s, Sweden was still sterilising the children of alcoholic parents using the theories of eugenics to justify their actions. As that was the case, I am sure they did not give cross dressing children a pat on the back of the hand. Compensation should also be considered for those people whose life chances have been damaged considerably by the ‘madness machine’.
Further, if cross dressing is now sane behaviour which needs no form of social intervention, the Swedish legislation must now urgently move to make transvestism a protected ground in the Swedish discrimination laws.
If cross-dressing is not in itself deviant or offensive, there must be a compelling and really serious reason for keeping some people under such a harmful psychiatric regime as described above. The seriously wrong thing must be a threat or danger to others. The thing that is seriously wrong, we can deduce is manifested through cross dressing, but it only comes into play if a cross dressing person also claims they are (in opposition to everybody else’s view) a man or a woman.
When this claim has been fulfilled, i.e. we have reached the endgame, in that other people now see them as the man or woman they say they are, and the individual is facilitated in achieving their new social role, clearly "the serious thing " disappears and we end their psychiatric supervision, because they are no longer dangerous. Rather than being sociopaths, they become pussycats.
Presumably, in Sweden, this very compelling and significant reason leading to the ongoing diagnosis of transsexual people with a mental health problem, must be such that it is worth the distress caused to transsexual people, and the severe impact on the individual’s life. Especially, when we take into consideration the risk of transphobic violence, prejudice and discrimination that comes with that diagnosis.
Is the very compelling and significant reason that many transsexual people try to commit suicide? Except of course it could not be, because otherwise, when we appear to recognise them as the person they say they are and are allowed to engage fully in their deviant behaviour, and we stopped forcing them to speak psychiatrists, the suicide attempt rate falls to what are close to normal figures. Some suggest they might even be lower than normal.
As a member of the general public, therefore I would really like to know what this compelling and really serious reason is, particularly as it is clearly dangerous. I think we need a national debate as to whether transsexual people should be put in locked units, until such time, it has been proven that they will not do this really serious thing – whatever it is. In fact, we could rehabilitate them through such units, making them undergo the full transition process, until they reach the end game and we know they are safe.
But, also, curiosity means, I just really would like to know what that one thing is. On one level it concerns me that I may have done it some time in my past. Fortunately my past is quite long way away now and there is a statute of limitations, unless of course it was something serious as murder.
I could go through a huge list of consequences to the state and the individual if we just imagine if it had not been a mental health disorder. I personally find that really difficult to imagine. It is as the Scots’ might say “Beyond my ken”. I still suffer from the shame, the blame, the fear of doctors, then feeling of vomit rising every time I have to tell someone new about my dark and dangerous past. I suppose I would feel none of those things - that would be a good start anyway.
Yet, I believe the mental health categorisation for transsexual people could disappear overnight, just as it has done for transvestism within Sweden. It has been done before over other similarly stigmatised behaviours and thoughts; the act of masturbation or the thoughts of romance when holding the wrong man’s hand, or getting pregnant when unmarried have all been de-pathologised.
Thankfully we no longer see young women locked away for 60+ years for such dangerous behaviours. In the 1980s we were all rightly ashamed of our society and our status as human beings, when we saw these women finally being released from the asylums into a sort of free life which had long been beyond their imaginations Similarly de-pathologised has been the act of sex with a partner of the same sex, and the thought of love with a lover of the same gender. And, now it has just now been done for transvestism. Surely, with evidence in existence from many, albeit mostly historical, societies where cross gendered living was not pathologised, that is proof enough that it can be done for those daring to think they might be transsexual.
I can see no reason for the mental health categorisation for transsexual people not to similarly disappear other than the purely practical problem of ensuring treatment, especially specialised liaison psychiatric services for those people who continue to need it, and will do so until the stigma vanishes. As the stigma slowly dissipates, we will see a new generation of mentally and physically healthy young trans people able to come out as children or teenagers, so avoiding much of the later surgery required, because of their current ongoing pubertal hormonal processes.
Indeed, the next generation of fathers and mothers may well realise that babies are not born boys or girls, rather they grow up into being boys or girls and the key indicator is not necessarily genital. They may well welcome the child they thought was the daughter when he announces he is the son. Similarly, they probably will also worry about the cost of the wedding when the child they thought was their son, announces she is their daughter. Hopefully we would see an end to the beating and throwing out of young people by their families.
Why would we not de-pathologise transsexualism, when we know that to do that will lead to those continuing health and social problems associated with stigma have a chance of falling away when the transsexual person is finally allowed to live in their preferred gender role, including wearing clothes whereby they can be identified, but which are also best suited for their circumstances.
De-pathologisation will only finally occur It when psychiatrists and psychologists agree with the viewpoint that the transsexual person is who they say they are; ie. they are the woman or man they say they are. What is it that really makes a woman or a man? As the ‘experts’ any non-trans woman or man they will say "I am a woman " or " I am a man .", and that is what makes them the person they say they are. So why can’t we transsexual people do the same.
What might be the consequent changes that will now come about, within Sweden, because transvestites are now fine and dandy citizens, with full human rights, and their behaviour is no longer mentally disordered. I recently had a conversation with a member of staff from the Equality and Human Rights Commission, in which she was telling me to explain the human rights of transvestites. I said transvestite people have no human rights, which she refused to believe. Of course, in principle, we all have human rights, but there has been a long history of refusing human rights to many people on arbitrary grounds. Cross dressers have been amongst those, along with transsexual people. AS the law stands, where there is no legislation or case law to support the human rights of anyone if they are a cross dresser, I argued that I did not feel able to advise a cross dresser that they would win the case in court, where their human rights had been contravened, because they were cross dresser. The EHRC member of staff was getting edgy about this; until I said to her; "the day the EHRC employs somebody called Robert to work on the reception desk, knowing Robert will comes into work wearing a skirt, blouse, tights and a wig - I will believe transvestites of human rights ". She quickly saw the veracity of my argument.
Finally: the compelling and really serious reason for pathologising transsexual people.
As I said earlier, there must be a compelling and significant reason to continue the diagnosis of transsexualism as a mental health disorder, otherwise physicians, who are otherwise well-educated, responsible, sane individuals would not take such a drastic step. There must be some really serious problem – but what is it?
Before Magnus Hirschfeld and Harry Benjamin came along, there was no treatment for people who we would now identify as transsexual, yet the historical record does not seem to be any record of any particular consistent insanity or criminal offence, other than that of being a cross dresser who wanted to change sex, that these people engaged in. Yet, there are in fact many historical records of trans people suffering the most dreadful punishments; being hanged, burnt, garrotted, or in some cases, being drowned. In 17th century Holland, they would drive the Urnings and Tribades– up to 200 people at a time, to the Amstel, and then the people of the city used sticks to hold them under the water until they drowned. A tribade was a woman convicted of using an artificial member to have sexual intercourse with another woman, undoubtedly, there were trans men included. Similarly urnings were men convicted of being passive sodomists, undoubtedly there were trans women included.
So therefore, perhaps we can reach a conclusion, the compelling and really serious dangerous thing must be having sex, not heterosexual, lesbian or gay sex - in Sweden that is not a mental health disorder. But it must involve having sex, whilst cross dressing and thinking , and then expressing the thought. So it seems that the compelling and really serious dangerous thing is in fact linked closely to the breaking of archaic, patriarchal, social rules and values as to how to men or women should behave in the bedroom. Biological males must not be ‘passive’, biological females must not be ‘active’, whatever that nonsense means. Clearly it is not just that you have done this before but that you have the potential for doing this in the future, otherwise they would not be trying to cure gender variant kids, who have not yet even thought of sex as an activity.
But this is nonsense. Nobody is any longer concerned with those archaic social standards in the bedroom. So long as we are all consenting, and are old enough to properly consent, and we are not breaching a position of trust, and are not too closely related by blood, then we can do what we like in the bedroom. It no longer matters, who is on top.
But that is Sweden for you. It is a large country with very few people in it, it is a very wealthy country where people still get full student grants, and they have very, very long winter nights in which to do their knitting or to rub their hands together, prying into other people’s affairs. I think they might find it more edifying to take up philately, playing bridge or alternatively, enjoy reading Carlos Castaneda vols 1 to 12 in hope for their own enlightenment, hopefully arriving with the spring.
There are two other possible explanations to this current move to de-pthologise transvestism. It could be that in Sweden there is so much transvestism that they worry they will not be able to afford the clinical services for addressing the problem. In this case, continuing to classify cross dressing as a mental health disorder is about to become a significant drain on the Swedish health services. Following a pathway similar to late 19th century homosexuality, as there is now less stigma associated with cross dressing behaviour, more transvestites are becoming brave enough to talk to their doctor and they want their doctors to provide a cure – because there is still stigma surrounding being a transvestite. The Swedish health authorities have made this change to close this loophole, as they are extremely concerned that outpatient’s clinics will be full to the brim of worried-well cross dressers, and schizophrenics, psychopaths, sociopaths and addicts would be left to roam the streets rather than taking part in their group therapy.
The other ‘far fetched’ possibility is that the Swedish health authority, the Parliamentary Cabinet the ICD committee, and the Department of Health in Sweden are full of transphobic cross dressers.
If you get to the end of this piece of missionary zeal, you will realise that all I am doing is pointing out the illogicality of a system which says one thing and yet does another. A system which clearly fails to understand the link between cross dressing and being transsexual, a system which fails to relalise that over 40% of cross dressers would, if possible prefer to live as a member of the opposite natal sex grouping. Transevstite, transgender, transsexual, trans-nonsensical, we are all trans-connected, different from each other, yet still more often the same.
Some days I love being a lawyer, it is like mathematics, a simple game of logic whereby you can assume the strangest mentalities and behaviours exist and using logic, prove that they probably do exist.
copyright STWhittle 13 March 2010