Friday, 20 February 2009

From a Canon Lawyer

Via the Catholic Forum on Moral Theology:
Just a couple of observations, that I hope might be helpful to you. I am a canon lawyer with a JCD {Juris Canonici Doctor, Doctor of Canon Law - ZEB}, and I'm hoping this post might help. First is that you are obviously very concerned about how the Church defines you, and how that definition then affects all of your other relationships. But I think that in your case (and in the cases of those like you) we must look toward a broader understanding of Canon Law to find answers.

First, understand that the law of the Church is based on European code, not the common law as found in the US and in Australia. This is important because it gives us a different legal mindset than we are used to. Church rules are written broadly to encompass the largest number of people. But when legal anomalies arise, they are dealt with either by specific exception, or by allowing there to be pastoral provisions made for those for whom the law doesn't fit. It is evident that your situation is one of those anomalies that is not envisioned in the law. Thus, you are getting contradictory pronouncements on this precisely because your situation does not fall into one of the Church's neatly defined categories.

Second, in Church law, laws which are restrictive are to be interpreted strictly (c. 18). You write that the Vatican has defined transexuality as a "psychic disorder of those whose genetic makeup and physical characteristics are unambiguously of one sex but who feel that they belong to the opposite sex." But look at the definition - and you may be right to say that these conditions do not in fact exist. Read the definition strictly as one is supposed to do under canon law. Does it apply to you as defined? If not, then the restrictions or limitations also do not apply to you. This is not just sophistry - it is truly the way the law works. You are not obliged to stretch their definition to fit you. Rather, you are within your rights to say that definition does not apply to me because I DO NOT FIT that definition. Thus any pronouncements made by them based on THAT PARTICULAR DEFINITION or consequences from that pronouncement do not bind you. Those rules only bind those that fit that definition.

So, it seems to me that what the Vatican has made a determination on is if you are "unambiguously" of one sex, but "feel" you belong to the other, then this definition applies. But it seems to me that if you are medically "intersexed" that by definition your gender is ambiguous. Applying another canonical maxim, "you are not bound to the impossible", you can only clarify your gender as much as it is possible to do so, using the best available information you have at that time. Neither God nor the Church can require you to do more than that.

So ultimately, I don't think there is an answer to your question. The Church has made a pronouncement that it does not want people who clearly are of one gender to change to another because it is considered mutilation. However, it has not made pronouncements for those whose gender is not biologically/genetically consistent or determined. Your situation puts you into a theological and canonical gray area where morally you are simply called to do the best you can do with the information you have. And consider that the Pope when he speaks is speaking as someone who has a Code understanding of the law and theology - he is making pronouncements that are meant to be applied to 99% of his people. I suspect that if you were to present him with the facts of your case and of those in your similar situation, he would understand that you require an exception because you and your circumstances are exceptional! The scriptures you quoted in your posts are evidence that even in scripture there are those to whom that 1% exception applies.

You have obviously had a very difficult path to travel, without there being a clear road. And it sounds to me like even though you are not sure in your belief, it still means a lot to you to have the Church understand your struggle. Unfortunately, it does not appear that much officially has come out on the subject. That may be because it is such a complex issue that it defies an easy "rule" on the subject and that each case must be dealt with as a legal exception. That would be consistent with Church practice.

But please also know that just because there are not clear answers for you, it does not mean that the Church does not care about you. You are profoundly loved as God's child regardless of your situation. Your son is loved as a gift from God - and is never to be thought of as a grave error. You are not bound to the impossible - he was conceived under the circumstances of what you understood about yourself at that time. I wish you and your family every blessing, and will keep you all in my prayers.

Given the extensive evidence that Transsexuality is a form of Neurological Intersex, this doesn't just apply to me.


Laserlight said...

"defined transexuality as a "psychic disorder of those whose genetic makeup and physical characteristics are unambiguously of one sex but who feel that they belong to the opposite sex." "

Physical characteristics would include neural, endocrine, you could read the definition as saying "As long as it's purely a psychological problem with no physical basis, then it's a psychological problem." Which is hard to argue with.

Battybattybats said...

So then the church pronouncement on transexuality doesn't apply to trassexuals?


Anonymous said...

In Zoe Brain's case, they have the whole endocrine-system-going-haywire thing going for her, but for the average transsexual they won't be able to provide any real evidence of a physical condition within themselves, but will simply have the psychological self-report, putting them within the church's definition.

Bad hair days said...

> putting them within the church's definition

I think thats quite unimportant. The Church wont do fMRT scans with people claiming it, thats true, but for the faithfull catholic TS/TG it might be a very usefull help in living with both conditions at the same time.

Anonymous said...

But while this might be one "Canon lawyer's" opinion, I bet there are thousands with other opinions and thus for that religion as a whole to agree and then to pass it on to their unquestioning followers. Meanwhile, we in Buddhism just coast along, accepting everyone on face value without judgement.

Reading this really makes me sick, a religion with so many rules, makes me think of "the rules of war". Just as ridiculous!


Bad hair days said...

It is. People from other Religions see often the obvious: Christiantiy hails suffering, theres a peron crossed as the whole symbol. Who else is Sidarta Gautama (Buddha - not a god as so often thought of in monotheistic religions) portrait? Sometimes even as a fat guy, older with his earrings having expanded his ears - and with a smile.

Anonymous said...

...but for the average transsexual they won't be able to provide any real evidence of a physical condition within themselves, but will simply have the psychological self-report, putting them within the church's definition.
Except, even though it isn't readily visible (inside a locked skull so to speak), they do have a neurological intersex condition (that is physical - they don't just *think* like the other sex, their brain *is* like one of the other sex).

So they may, at naive glance, appear to fit the definition, but evidence exists indicating they do not.

I posit, in a decade or so time, fMRI scans will be often conducted on transpeople. At such a point, the situation overtly reduces to that mentioned by BBB, "So then the church pronouncement on transexuality doesn't apply to trassexuals?".

Remember absence of proof does not mean proof of absence.


MgS said...

Does anyone else find it odd that the article on Mercatornet comes out hot on the heels of the Vaticans latest pronouncements on how men and women "sin differently"?

MgS said...

With respect to the Canon Lawyer's commetary:

I'm not about to wait the next couple of centuries for the church to decide that transsexuals aren't sinners. They're apt as not to take the approach they do with homosexuality - being trans isn't a sin, but doing something about it is.

The current church isn't interested in evidence that doesn't fit their dogma.

Anonymous said...

I've not been reading here for awhile, and I'm way behind on the definition that transexuals are neurologically intersexed. Zoe, maybe you can send me a note about this and further my education. :)

The topic of 'transexuals' has come up at work, several times recently, and I've tried to present the 'in the wrong body' explanation to those who say, "I believe God makes people male and female."

Is 'neurologically intersexed' the current way of describing the experience of being transexual? Are the brains of transexual persons more like the 'other' sex than like the one whose phyical characteristics they have?

If there really is, or might be, some kind of measurable brain differences then surely there will some day be a greater understanding and acceptance. I tried to suggest to a coworker that if the world were neutral and accepting, then people would not feel the need to try to live a life that feels wrong. (This also applies to all the gay people who have married with the hope that it will make them heterosexual.) I don't think she was very open to that idea, but at least it was spoken aloud. A spoonful at a time, right Zoe?

Zoe Brain said...


Some of the many papers are easily available online.

Male-to-female transsexuals show sex-atypical hypothalamus activation when smelling odorous steroids. by Berglund et al

Male–to–female transsexuals have female neuron numbers in a limbic nucleus. Kruiver et al J Clin Endocrinol Metab (2000) 85:2034–2041.

Sexual differentiation of the human brain: relevance for gender identity, transsexualism and sexual orientation. Swaab Gynecol Endocrinol (2004) 19:301–312.

A sex difference in the human brain and its relation to transsexuality. by Zhou et al Nature (1995) 378:68–70.

And many more. The brain, and in particular the lymbic nucleus, is sexually dimorphic. One pattern is typically male, the other typically female, though the patterns vary between individuals.

It was as far back as 2003 when the Full Bench of the Australian Family Court said:
At paragraph [252]: ‘The traditional analysis that they are "psychologically" transsexual does not explain how this state came about. For example, there seems to be no suggestion in the evidence that their psychological state can be explained by reference to circumstances of their upbringing. In that sense, the brain sex theory does not seem to be competing with other explanations, but rather is providing a possible explanation of what is otherwise inexplicable’.

At paragraph [253]: ‘In other words (as I understand it) the brain of an individual may in some sense be male, for example, though the rest of the person’s body is female’.

At paragraph [265]: ‘In my view the argument in favour of the “brain sex" view is also based on evidence about the development and experience of transsexuals and others with atypical sex-related characteristics. There is a vast literature on this, some of which is in evidence, and I can do no more than mention briefly some of the main points’.

At paragraph [270]: ‘But I am satisfied that the evidence now is inconsistent with the distinction formerly drawn between biological factors, meaning genitals, chromosomes and gonads, and merely "psychological factors", and on this basis distinguishing between cases of inter-sex (incongruities among biological factors) and transsexualism (incongruities between biology and psychology)’.

At paragraph [272]: ‘In my view the evidence demonstrates (at least on the balance of probabilities) that the characteristics of transsexuals are as much “biological” as those of people thought of as inter-sex’.

Source: Deakin Law Review.

There's also a pile of papers not easily accessible. The German and Swiss studies using fMRI techniques are now mapping the extent of the cross-gendering, not merely confirming its existence.

It appears that not just the lymbic nucleus, the "reptile part" of the brain is affected, but some higher brain functions too. We're talking about physical differences, things visible using imaging techniques, in areas of the brain we knew beforehand are sexually dimorphic, where men differ from women.

Anonymous said...

Zoe, Thanks for the info. I hope it's okay to pass this along. This will help me make a more intelligent response when the topic turns to people not 'believing' in the reality of TS people.

Bad hair days said...

> The German and Swiss studies using fMRI techniques

Hello Zoe, I don't know of any Swiss fMRT studies? (Only fingerlength)
Can you tell me more?