Legal Insanity

Over on ShrinkRap, the blog of three psychiatrists I wrote a far-too-long comment on the subject of the Mentally Ill Offender Treatment and Crime Reduction Reauthorization and Improvement Act of 2007.

My question is basically, what legally defines a mental illness? And what legally defines "appropriate therapy" in that context? And that got me thinking - always a dangerous situation - about my own life, and the legal trials and tribulations I and others are heir to.

First, I'll quote the post:

Can I sound off about my standard obsession now please?

How do you define Mental Illness? I mean, from a legal standpoint, rather than one based on Reality?

Does it include everything in the DSM-IV? Does it exclude everything else?

Real World Example re Prisons:
One view. Another view. Yet another view:

A leading US psychiatrist who conducted an in-depth investigation into the results of sex-change therapy concluded that the psychiatric community was cooperating with mental illness by diagnosing transsexualism as a legitimate physical condition. “We psychiatrists… would do better to concentrate on trying to fix their minds and not their genitalia,” Dr. Paul McHugh, University Distinguished Service Professor of Psychiatry at Johns Hopkins University wrote in First Things, 2004.

First Things is not a medical journal, but a religious one.

Nonetheless, Dr McHugh's views have been used as the basis for an IRS ruling that any medical treatment for transsexualism is not tax-deductible, and has been quoted in virtually every legal case dealing with the subject - including the one in the other references.

The "in-depth investigation" was conducted over 30 years ago, and has been contradicted by every single investigation available in PubMed ever since then, but he is Henry Phipps Professor of Psychiatry and Director of the Department of Psychiatry and Behavioral Sciences at Johns Hopkins University School of Medicine, and Psychiatrist-in-Chief of the Johns Hopkins Hospital. His views are most cogently expressed in Psychiatric Misadventures.

The zeal for this sex-change surgery--perhaps, with the exception of frontal lobotomy, the most radical therapy ever encouraged by twentieth century psychiatrists--did not derive from critical reasoning or thoughtful assessments. These were so faulty that no one holds them up anymore as standards for launching any
therapeutic exercise, let alone one so irretrievable as a sex-change operation. The energy came from the fashions of the seventies that invaded the clinic--if you can do it and he wants it, why not do it? It was all tied up with the spirit of doing your thing, following your bliss, an aesthetic that sees diversity as everything and can accept any idea, including that of permanent sex change, as interesting and that views resistance to such ideas as uptight if not oppressive. Moral matters should have some salience here.
...
We need to know how to prevent such sadness, indeed horror. We have to learn how to manage this condition as a mental disorder when we fail to prevent it. If it depends on child rearing, then let's hear about its inner dynamics so that parents can be taught to guide their children properly. If it is an aspect of confusion tied to homosexuality, we need to understand its nature and exactly how to manage it as a manifestation of serious mental disorder among homosexual individuals. But instead of attempting to learn enough to accomplish these worthy goals, psychiatrists collaborated in a exercise of folly with distressed people during a time when "do your own thing" had something akin to the force of a command.

When these words were written, it was possible to defend them. There's a lot in there that I agree with - I'm rather conservative myself. But the (necessarily low sample size thus not definitive) autopsy and MRI results and so on that appear to show biological causation have been matched with a very, very low rate of cure from psychiatric techniques - comparable to that of curing cancer by prayer. Despite searches over 40 years, there's no pattern, no evidence that it's tied to either child-rearing or homosexuality, or anything else in environment in the general case. So much of what was in psych textbooks of even as late as 20 years ago has been debunked, yet myths not supported by evidence persists.

I was amazed and dismayed when giving a 10-min "tail end" briefing to some med students after a Psych Prof's end-of-course lecture on abnormal sexual development to have to correct so much misiniformation. FtoM transitions are not "so rare as to be almost unknown", though whether the incidence is 25% or 50% of the total figure is unclear now (it's 55% in Poland - who ordered that?). Our future psychs are being taught such guff, it's disheartening.

In this context, who decides whether this deeply distressing condition (and others) is a mental illness from a legal standpoint, and if so, what treatment(s) are appropriate?

I might nail my colours to the mast here. We're still not certain what caused what some would call my "involuntary sex change", welcome though it was, and partial though it had to be in purely biological terms. There's been no psych studies I can find of the far more common partial/apparent "involuntary sex changes" of males with 5 alpha reductase deficiency, or 17BHDD. Some passing remarks about how it makes no difference to some, yet to a minority is a medical emergency, but that's it.

Anyway, I feel that this gives me if not a unique, then an unusual view.

I see transsexuality as a physical intersex condition, but one that causes Gender Dysphoria, a form of chronic misery, and often Gender Identity Disorder, a full-blown psychiatric condition that is terribly debilitating. Remove the root cause, and those conditions disappear, though co-morbidities caused by a lifetime of sheer misery will remain.

I might be wrong, but this fits the facts. I've yet to see evidence that the Gender Dysphoria can be removed without treating the root cause too, it's certainly usually intractable.

This rambling essay was just to explain by real-world example the vexed question of what is a legal "mental illness" and what is "appropriate therapy" in the context of the law in question. It also has personal interest of course. For one thing, I've just won a 20-month fight involving legal letters, court cases etc to be granted an Australian passport. It normally takes 3 weeks. The fact that I had to go through legal difficulties like that, that it seems normal, expected even for people such as myself, seems, well, Crazy. Call it a "persecution simple".

I have dual citizenship, UK/Australian. In Australia, should I get divorced, I could only marry a man - in order to prevent "same-sex marriage". In the UK, I could only marry a woman, also to prevent "same sex marriage". This is causing some degree of hilarity, but also genuine disorientation. I could do with reassurance that this kind of legal stuff is insane, rather than just me.

The other issue that has been busy percolating through my brain has been the legal hoops that must be jumped through in the US state of Illinois regarding changing Birth Certificates.

First, for the situation to be corrected, the person concerned must have had sufficient genital reconstruction surgery, and of the right type. Now while that's arguably a problem, especially for Intersexed people, and those whose medical conditions preclude such surgery, let's take it as read that it's reasonable. It's certainly not wholly unreasonable.

Except... that the surgery isn't what's important. What is important is who performs it, not what is done. The surgeon must be one registered in the US to practice medicine. Certification of what was done by a US doctor isn't sufficient. This was introduced as the result of a deliberately fraudulent certification by one US doctor, once, a matter of compassion. Ok, so maybe that might be seen as reasonable, though surely certification by multiple US doctors would be a better solution.

Except... from a support group I'm on, for patients of the surgeon I went to...

Well, I have discussed the below situation with legal counsel and the Illinois law is quite clear. An affidavit from another physician does not meet the law's requirements. I have posted a file in the file section of what I'm doing next.

Here are the outcomes of my research:

Upon submission of the application for Birth Certificate Change for the state of Illinois an investigator is assigned to research each application and to confirm the affidavits are valid. In my case, even getting Dr. Suporn licensed in Michigan would not meet the requirements because he would not have been licensed in a state
within the United States at the time my surgery was performed.

So what sex a person is, who they are allowed to marry, is not determined by the reality of their body: it's not determined by who performed the surgery even: it depends on what, who, and when. And all to stop "same sex marriage".

Whisky Tango Foxtrot?

At some point, you have to realise that you're playing a game by someone else's rules, a game where things like compassion, rationality, even sanity have no place. A game where the rules can be changed by the enemy at whim, where there really are no rules, no consistency, just pure irrational spite.

I'm lucky that I'm living in a jurisdiction where the highest court in the land said, essentially, "blow what has been said or done before: new evidence has come in, and it is obvious that common sense tells us we should go with reality, not inaccurate records or theories". I've quoted this before, but it's worth saying again, as the message obviously has not gotten through yet.

I agree with Ms Wallbank that in the present context the word "man" should be given its ordinary contemporary meaning. In determining that meaning, it is relevant to have regard to many things that were the subject of evidence and submissions. They include the context of the legislation, the body of case law on the meaning of "man" and similar words, the purpose of the legislation, and the current legal, social and medical environment. These matters are considered in the course of the judgment. I believe that this approach is in accordance with common sense, principles of statutory interpretation, and with all or virtually all of the authorities in which the issue of sexual identity has arisen. As Professor Gooren and a colleague put it:-

“There should be no escape for medical and legal authorities that these definitions ought to be corrected and updated when new information becomes available, particularly when our outdated definitions bring suffering to some of our fellow human beings”.’

And that got me to thinking further again, of some of the cases I'm aware of, some of which I've mentioned on this blog, others I haven't. There's a matter of confidentiality, and parading others' problems in public without their consent is unethical.But to give you an idea:

• In Western Australia, it is the practice of the Western Australian Family Court to remove all children of a transsexual parent into state care should that parent dare transition. Why? to protect them. From what? Well.. you know...from something. Even if the only evidence that exists shows children aren't harmed by it. Even if there's never been a single case of a transsexual parent abusing a child in that state. It's to be safe, because transsexuals are mentally ill, like paedophiles. Had I lived in WA, my son would have been taken away from us, and put into a very dysfunctional system. Yet my transition was involuntary. Under those circumstances, suicide might have been the least worst option I could take for my son's welfare (though I would have seen if mere disappearance would have sufficed - of course I'd die to protect my son, but I'd make sure that was the only option first!). No wonder the suicide rate is so high there, perhaps as high as 90%.
• There's the case in the US where a hospital refused to issue a newborn baby a birth a birth certificate. Her crime? Her father is transsexual, and is a biological woman. Now a woman can't be a father, but the father is known, so they can't put "unknown", so no Birth Certificate. Now there's a procedure in that quite progressive state for lesbian couples to have children. a space for "parent" not father. But that requires that she go through the long, involved, and expensive process of formal adoption of her own daughter, an application that has every chance of being refused, with unknowable consequences.
• Up until the 80's, it was possible for transsexual women to be prescribed Cyproterone Acetate, an anti-androgen drug, without any legal hassle. Now it can only be prescribed for those who volunteer for chemical castration, and patients given it are put on a list of sex offenders (and never taken off). The alternative is to pay $400 a month, outside most patients reach. It was mine. Once post-operative, they can also get it for treatment of "androgenisation", but of course they remain on the list.
• Infertile couples have access to IVF in Australia, again subsidised by everyone's taxes, contributions to the "Medicare Levy". Lesbian couples have to pay tens of thousands of dollars more. But what happens when the father is transsexual? You got it, in that particular case, no subsidy. I know of one post-operative woman who has delayed getting formal recognition as female specifically to avoid this situation. It's gaming the system, but only because the system is gaming her.
• Did I mention my 20-month battle to get a passport of any kind?

You get used to it. You get too used to it. You tell yourself that the situation is unusual, you have to make allowances, and if you're not very careful, you get to believe that you deserve it, because of the myriad little ways you get humiliated or mistreated in every country on Earth. Some places, name change is trivial. Other places, it requires a court hearing, and a bigotted judge can refuse you permission simply because he doesn't approve of "that kind of thing". Some places, changing birth certificate is trivial if you're post op. Some places it's even possible if pre-op. Some places it's impossible. Some places it's possible even if pre-op, but not if you're married (like the UK). It's Legal Insanity.

You tell yourself that compared with people with Lung cancer, you have it easy. But the comparison is unjust: for changing sex, while psychologically uniquely stressful and medically risky, is not the problem. The problem is not even the violence, for anyone can be unlucky (Ok, so you're seventeen times as likely to be unlucky, so maybe it's a problem after all). The problem is those who argue that you're insane (so don't deserve treatment), or not insane (so don't deserve treatment). That you're as mad as a meataxe, as much as a psychotic schizophrenic, yet unlike a psychotic schizophrenic don't qualify as disabled under the "Americans with Disabilities Act", because there's a special exemptive clause just for your condition (see Donna Rose Dec 20 2007 8:30am). That you're gay, especially if attracted to the opposite sex, but don't qualify for legal protection under any clauses that protect gays in any event. That in order to get treatment for your insanity, you must get two specialist pychiatrists to put their reputations on the line, in writing, to say that you're sane. You get used to the inconsistency. If there's a disadvantage, it applies, if there's a mitigation, it doesn't.

You become so used to making allowance for others feelings - for all you want to do is have something like a normal life too - that in order to save minor inconvenience or some disquiet in others, you accept the most objectively apalling treatment of yourself. Treated in so many ways - though which ones depend on where you are - as a 4th class citizen, unless you make a conscious effort not to, you believe that you are a 3rd class citizen who just has to put up with a few inconveniences.

Instead of the 2nd class citizen you are because you're a woman. Actually, come to think of it, maybe I shouldn't accept that state of affairs either as "normal", just because it has been since time immemorial.