IN THE EUROPEAN COURT OF HUMAN RIGHTS
CASE NO’S. 31/1997/815/1018 & 32/1997/816/1019
KRISTINA SHEFFIELD -v- THE UNITED KINGDOM
RACHEL HORSHAM -v- THE UNITED KINGDOM
ANNEX 5 TO MEMORIAL
STATEMENT OF PROFESSOR GOOREN
I, Professor L J G Gooren, am a Consultant Internist and Endocrinologist at the Department of Endocrinology/Andrology of the Free University of Amsterdam, a Professor of Transsexology at the same university and a recognised authority on transsexualism. I acted as a Co-Rapporteur at the Council of Europe’s XXIIIrd Colloquy on European Law "Transsexualism, Medicine and Law" organised in conjunction with the International Commission on Civil Status held in Amsterdam in April 1993.
It is now a generally accepted fact that in a species like rats, dogs, cats, but also human beings, the brain undergoes a sexual differentiation into male and female. There are male and female brains. This guarantees more or less that the sexual behaviour of that person is in concordance with the genital criteria; a person with a penis will generally act sexually as a male and a person with a vagina will generally act as a female. So nature has built in a kind of guarantee that actual behaviour is in concordance with the genital criterion.
The nature of the external genitalia by which a person is assigned to one sex or the other at birth is only one of the five criteria of sex. The others are chromosomal sex, gonadal sex, the sex of the internal genitalia, the sex of the external genitalia and the sex of the brain.
Fortunately, in the vast majority of persons all these criteria of sex are in concordance but in 5 of 1000 newly-born there is a contradiction between the different criteria of sex. It is an accepted medical policy that none of these criteria takes priority or precedence over the others. If a child has contradictions between the different criteria of sex, that child is assigned to the sex in which it will function best later in life, socially and sexually.
In a modern view, transsexuals are a kind of inter-sex in that they have a contradiction between the chromosomal sex, the gonadal sex, the sex of the external genitalia and the internal genitalia on the one hand, and the brain sex on the other. Current medical evidence points out that the sexual differentiation of the brain takes place after birth, probably between the ages of 3 and 4. As long as the sex of the brain is in concordance with the nature of the external genitalia, there is no problem. But there is a problem if the brain sex differentiates oppositely to the nature of the external genitalia, as is the case in transsexuals.
The medical policy with regard to transsexuals is not essentially different from that in other cases of inter-sex. Transsexuals are assigned to the sex in which they feel well, in which they will function best socially and sexually.
So, it is my viewpoint that the same rights must be given to transsexuals as are given to other people in whom not all the criteria of sex are concordant. It is medical policy to assign the sex to those persons in whom there are contradictions between the different criteria of sex to the sex in which they will function best.
The medical evidence about the brain differentiation is rather new. it was expected at the time of the Colloquy but it was not available. It has become available over the last years and it is now quite a solid piece of evidence that in male to female transsexuals, the brain has not followed the expected path of differentiation but has taken the sexual differentiation of the opposite sex, which explains the feelings that transsexuals have about their bodies.
On 25th March 1996 at Ms Rachel Horsham’s request, I wrote to the director of records at The New East Surrey Hospital, the place of her birth, to enquire as to the availability of records of birth. A copy of my letter, together with the reply that I received from the Hospital, is attached hereto. It is unfortunate that I am not in a position to consider further the information that Ms Horsham has given to me regarding observations made at the time of her birth.
During July 1996, I was asked by Ms Horsham to evaluate certain information that had been obtained in relation to Sir Ewan Forbes née Elizabeth Forbes-Sempill. From the history before me, I can state that it would be extremely unusual if the person in question had been a case of intersex, particularly since the person must be assumed to have had medical expertise on sexual differentiation disorders. I believe that this was the case of female-to-male transsexualism. A copy of my letter setting out this belief is attached hereto.
The findings which were reported to the Commission on 19th January 1996 were published in Nature (Z N Zhou, M A Hofman, L J G Gooren and D F Swaab (1995) A sex difference in the human brain and its relation to transsexuality; Nature 378 68-70). Since the publication of that report, one other brain has been examined. Similar results were produced. Further, the specimens of the study published in Nature have been re-worked using new laboratory techniques (using antibodies against Somatostatin) and they support unambiguously the original contention that the sexual differentiation of this part of the brain in male to female transsexuals is indistinguishable from that in normal women. There have been no scientific findings which contradict the date reported in "Nature".
IN THE EUROPEAN COURT OF HUMAN RIGHTS
CASE NO’S. 31/1997/815/1018 & 32/1997/816/1019
KRISTINA SHEFFIELD -v- THE UNITED KINGDOr
RACHEL HORSHAM -v- THE UNITED KINGDOM
ANNEX 9 TO MEMORIAL
I, KRISTINA SHEFFIELD of Flat 1, 85 Grange Road, Ealing, London W5 3PH, WILL SAY as follows:
1. I am the Applicant in Application no. 31/1997/815/1018 pending before the European Court of Human Rights and I make this statement in support of my application.
(a) Importance of the Application
2. Before dealing with specifics, I must emphasise just how important this Application is to me. I suffer from the refusal of the Respondent to permit an annotation to my birth certificate acknowledging the gender re-assignment that has occurred in my case.
3. No one would undergo gender re-assignment with the social and emotional impact i entails unless it was necessary because of a profound problem in one’s previous (mistaken) identity. For anyone, it would be a source of embarrassment and distress to be prescribed wrongly in terms of gender identity. As a post-operative transsexual words are inadequate to express the hurt and distress I feel at the Respondent’s refusal to recognise my identity. This profound hurt is experienced on an on-going basis as I cannot apply for jobs, seek any form of insurance or engage in other everyday transactions without facing the prospect of being required to reveal the extremely personal and private information concerning my former identity.
4. I understand, from what I have read of the Convention and its case law, that measures affecting my personal privacy should be necessary or to put another way strike a fair balance. In assessing this, I do ask the Court to take into account and give full weight to the impact on a post-operative transsexual of being obliged, in practice, to reveal such personal information. It is simply ghastly and, I believe, both unnecessary and unfair. Such disclosures of my "legal" identity have resulted in me being treated as a freak and as an object of ridicule through the pointing of fingers and the open laughter and insults. This is a common occurrence when forced to disclose, and all must be endured without the right of redress. This causes extreme mental stress and is certainly a form of mental cruelty.
5. What is particularly sad is how the legal and administrative position of transsexuals has been made worse over the years. I face a worse position in Britain today than I would have years ago. Prior to 1971, I believe that all transsexuals, both pre-operative and, of course, post-operatives, had been issued with new passports, new driving licences, and, as they were classified in their new gender for National Insurance purposes, they were protected within the field of employment. In fact they enjoyed the same rights and privileges as experienced by non-transsexual citizens.
6.The position deteriorated after the decisions in Corbett -v- Corbett 1971, E.A. White -v- British Sugar 1977 and R -v Tan and Others 1983. The Memorial has pointed out how this occurred and has appended to it Sir Roger Ormrod’s 1972 talk, the High Court of New Zealands’s decision departing from Corbett -v- Corbett and other information.
7. I turn now to the issue of annotations to certificates. Annex 1 to the Memorial contains copies of the certificates of Roberta Cowell, Georgina Turtle, Laurence Dillon and Sir Ewan Forbes.
8. With regard to Roberta Cowell, previously known as Robert Marshall, she was 33 years old at the time of re-registration and she had served as an officer and a pilot within the Royal Air Force. I know, from personal experience, that all military personnel MUST undergo extremely strict regular medical examinations, especially in respect to aircrew personnel. The equivalent of an Al, Gl, Zl medical certificate would have been required. (Minimum RAF requirement). The Respondent asserts that she was NOT transsexual, on their case, Robert must have been suffering from some physical defect. However, considering the medical examinations required for ‘officer and aircrew’ personnel in recruitment and selection, during training and thereafter during their military service, any such abnormality would surely have been observed by the doctors. Investigations would have been initiated for cause/reasons etc. and entry into military service would have been denied. It is further shown that Roberta Cowell fathered two children as is evidenced in her own story published at that time in Picture Post. Had an error occurred at birth which necessitated corrective surgery, it would have been impossible both medically and physically prior to that surgery being carried out for her to have fathered children. This is commented upon by Professor Gooren. I verily believe that Roberta Cowell’s case is one of transsexualism.
9. With regard to the High Court hearing in 1969, I am informed and understand that in her action, under English Law, she was required to prove her case against the Defendant, Ursula Bloom. This she did by producing her certificate and stating that corrective surgery occurred - as per the amendment on the certificate. No medical evidence was submitted by Cowell as it was not necessary. The onus of proof then lay upon the Defendant (Ursula Bloom) to disprove Cowell’s claims of being genetically female, and/or that the birth certificate was false. This they could not do and, therefore, the Defendant lost the case.
10. The newspaper report referred to by the Respondent does not establish that Roberta Cowell was not a transsexual. Rather, it shows that the issue of certificates to transsexuals serves the purpose of protecting the individual’s private life from those intent on invasion of their lives.
11. With regard to Georgina Turtle, previously known as George Edwin, she was 37 years old at the time of re-registration and she served as an officer and dental surgeon within HM Royal Navy, both ashore and on board ships. Once again, she would have been subjected to the same strict medical examinations as stated above and any abnormalities would have been investigated. With regards to the publicity in 1988, and the subsequent apology, it can be seen that the Chat magazine would have found themselves in the same position as Ursula Bloom (as above) had it been pursued into the Courts. Therefore, feeling that discretion would be the better course of action, they published the apology.
12. Elizabeth Forbes Sempill was born the youngest daughter of Lord Sempill, the First Lord of Scotland and a man with close ties to the Royal family. Under Scottish law, titles can pass to the eldest child unless it is specified that a title can only be passed to the eldest male.
Dr Elizabeth Forbes Sempill, who later changed her name to Ewan Forbes, was issued with a new birth certificate. On the death of the then Lord Sempill, who held two titles, one being a Baronetcy, that could only follow the "male" line of succession. Ewan/Elizabeth Forbes laid claim to the title of Baronetcy. His/her nephew would have been next in line had Elizabeth not changed her sex.
This came before the Scottish Courts in 1965 when her/his nephew challenged the claim on the grounds that Ewan Forbes was a transsexual and really a woman. The deciding factor in this case was the medical evidence produced by Professor C N Armstrong who convinced the Court that the most important criteria for determining sex was "psychological sex" irrespective of the gonads genitalia and chromosomes of the individual. As such, the Court ruled in favour of Ewan Forbes whose psychological sex was found to be male. He took the title, known as Sir Ewan Forbes.
c. British Law
13. No Parliamentary Legislation applies to transsexuals other than the Matrimonial
Causes Act 1973, where part of ‘Void Marriages’ is directly related to the Corbett
decision. The domestic law to which the Respondent refers is ‘case law’ and ‘case law’only. Corbett -v- Corbett 1971, E.A. White -v- British Sugar, 977 and R -v- Tan & Others, 1983. All these cases have prevented me from marrying, changing my birth certificate and have forced me to be declared a man at all times whilst, previously, these restrictions would not have been possible. As can be seen, the plight of transsexuals has worsened progressively since Corbett.
14. Recent case law arising out the ECJ in the matter of P -v- Cornwall County Council has improved matters slightly in the field of employment but the overall situation for transsexuals is still one of extreme disadvantage when compared to non-transsexual persons.
(d) My divorce
15. These are extremely painful matters but I will explain the position so that the full picture is before the Court although I request that no reference to this confidential part of my statement be made in open Court or in the Court’s judgment.
16. In 1986 I began treatment at the Gender Identity Clinic, situated at the Charing Cross Hospital in London. The hospital was a National Health Service Hospital. The rules and regulations set down for the treatment of transsèxuàls is determined by NHS doctors.
17. In 1987, I was informed by my consulting psychiatrist and by the surgeon, that before surgery could be performed I must be divorced. At the time I believed it was due to the fact that two women could not be married. However, I was since told that the sole reason that divorce was required was in order to protect the consultant and/or the surgeon from being sued by the wife for loss of conjugal rights.
18. With reference to my daughter, unbeknown to me, and after the divorce, my ex-partner, having already been granted custody of my daughter, then later applied to the Courts for an Order to deny me access to my daughter. Access was denied. Not because I was considered to be a child molester or child abuser, but solely on the grounds of my transsexuality. The Judge believed that contact with a transsexual would NOT be in the interests of my daughter’s welfare. I cannot begin to describe how upsetting this was and is to me. It is just awful.
(e) The Department of Employment and Education 19. The Employment Service does not itself require clients to state that they are transsexual. It does not have to do so because the information is already contained on their computers. One is issued with a National Insurance number - which does not change with gender change. One informs one’s local office of name change and that name change is then entered into the computer at National level. In my case, on entering into the computer it discloses "KRISTINA SHEFFIELD sex MALE". This would automatically reveal me to be a transsexual, and this computer display is available nationwide throughout all employment offices. Department of Social Security records apparently drawn up for transfer from the Ealing District office to "UBO1-568" record my name as "Ian V Sheffield" and only state my current name under "known as". Another DSS record, I believe drawn up by the contributions Agency in Newcastle, lists my name as "Mr I V Sheffield k/a Miss K Sheffield" and includes a tick in the box marked "Male".
20. No one below the position of ‘Supervisor’ is supposed to have access to a transsexual’s computer file. However, this rule does not appear to be generally known. This did result in ‘file access’ by those who are not permitted to see such files. In my case, once I became aware of the rules, it took weeks to convince staff that such rule existed and to have them secure my computer files. This was eventually done at local level. It is now done at national level but still needs to be done at local level on initial contact with the Department of Employment and Education by explaining one’s situation to a Junior clerk before it can be passed to national level, thus defeating the purpose of "national level" security. However, access to my file had been obtained by juniors PRIOR to the security measures being incorporated, so now all persons within the local Employment Office know of my transsexuality, thus contravening their own rules of confidentiality. This remains a source of concern and embarrassment to me.
(f) Name Changes and its limitations
21. A change of name by ‘Deed Poll’, ‘Statutory Declaration’ or by any other means is no more than a request for other persons to address the person concerned by their new name. Statutory Declaration Act 1935 . It is NOT binding on those other persons. However, other people may not be prepared to accept such an informal change of name and there is nothing to prevent those persons using the individuals’s legal name, as stated on the birth certificate, and ignoring the ‘name change’, which, in reality, is nothing more than a ‘change of convenience’, providing the transsexual with a paper-thin veneer giving no protection against ridicule, degradation or any other form of intimation, prejudice or discrimination.
22.It is correct that my passport contains my new name and the presentation of such documents to the ‘man on the street’, would not disclose my transsexual background. However, all such documents have ‘numbers’ and any person, regardless of their status, requiring authentication of those documents, or otherwise, can check those numbers. This can and, in my experience, has led to my legal name and my legal sex being disclosed, as happened to me when I submitted my passport at the United States Embassy for a visa. As it is not offence to discriminate against transsexuals and as this information could then be disclosed to persons who do need to know of my background and who are not covered by Laws/Rules of confidentiality, then discrimination, prejudice and ridicule can, and has been levelled at me. As an airline pilot who enters many different countries throughout the world a passport is as important as my licence and is detailed by the CAA. It is of great concern to me that my passport does not portray the truth or facts about me but is only a document of convenience. In reality, it is a false document and I have been informed that the use of such a false document is at my own risk. No guarantee of protection can be given by a British Embassy or Consulate. When this document was issued to me I was not informed of the dangers of using such a document in order to hide my legal status in the course of normal living.
23. Transsexuals are being denied one of the most human rights. I do believe this should be given the Court’s attention.
(h) Sureties, Insurance and other Contracts
24. There may be circumstances in which it is necessary to know of a previous identity. The problem is that I am forced to disclose unnecessarily, even when my previous identity is not required on any rational view of the matter.
25. Once again because such a disclosure reveals my transsexuality and because it is not an offence to discriminate against transsexuals I can once again be subjected to discrimination, prejudice, ridicule etc. Because a name change is not a LEGAL change, one’s original name is always kept on data files. However, if a transsexual was permitted to have a legal and official name change, all records etc. in the ‘old name’ could be transferred to the ‘new name’ and the old name struck out. This is certainly possible and as there are only some 4,000 registered transsexuals in the United Kingdom, of which approximately 10% to 15% are post-operative, it would not be difficult for government computer files (police files, etc.) to be adjusted. I suffer and others do - terribly - in consequence of the failure to make the minimal necessary
26. I accept that the check on an individual for a criminal record can be necessary. Under the current system this discloses my legal identity to the police officer, this in turn resulted in a disclosure of my transsexuality to that police officer. Once having checked and having found me free of a criminal record, he then informed the Court and the Crown Prosecution Service of these facts. Both these parties were then aware of my transsexuality. In court - open to the public - the prosecution lawyer demanded, after I had already disclosed my name of ‘Kristina Sheffield’, that I disclose my previous name of ‘Ian Vaughan Sheffield’. He then set out to discredit me by using my transsexuality to imply that I was dishonest, untrustworthy and unreliable. It was simply awful and, I believe, so wrong and unjust. This was not the only time that I was faced with the threat of having to disclose my past name and gender in Court. In 1994, I was due to attend the criminal trial of a friend as an alibi witness. The Defendant decided not to call me out of fear that her trial would become sensationalised and my own reputation damaged. Why should the Respondent permit my intimate privacy be violated in this way? I do look to the Commission for help and protection.
27. Had I been a non-transsexual my credibility would not have been questioned in such a manner and I would not have had to suffer the degree of ridicule to which I was subjected. Because such treatment of me is not an offence, I have no right of redress or complaint.
28. In respect of car insurance, it is agreed that it is necessary for companies to check whether or not I have a goccd or bad driving record. However, most companies, if not all, do not find it necessary to go back more than 3 or 5 years. This is done in order to establish one’s entitlement to a ‘no claims discount’. In many cases some companies only require disclosure of accidents within the last 2 years. In my case there is no need for information prior to 1990 to be sought by any insurance company and therefore it should not be necessary to disclose my previous identity because that was changed in 1986.
29. In 1986, I decided not to disclose my previous driving experience in order to keep my previous identity from the then insurance company. This decision resulted in my being treated as a ‘new’ driver with no entitlement to a ‘no claims discount’. From 1986 until 1991 I declared myself as female and I went on to rebuild my ‘no claims discount’. In view of this, how can disclosure of my previous identity be warranted or be necessary? But in 1991 I realised the danger I was in by non-disclosure. Because the law states that when driving a car, one must be insured in accordance with the Road Traffic Act, then not having insurance, constitutes an offence and is a criminal act. It was only in 1991 that I discovered the full implication of Corbett, White and Tan. By informing the car insurance company between 1986 and 1991 that I was of the female sex, when in reality I am legally male, this action constituted a false declaration on the insurance application and would therefore invalidate the insurance, thus leaving me uninsured. Therefore, in order to comply with the Road Traffic Act I must have insurance to drive. In order to ensure that the insurance is valid I must not make a false declaration. I am, therefore, forced to disclose my legal sex and this in turn discloses my transsexuality to persons who do not need to know; neither are they entitled to know. I have checked with my lawyers and am informed that this is the law under the doctrine called uberrima fides.
30. Where medical history and/or medical information is required by an insurance company, ie. life insurance, then I can see that be wrong for me to NOT disclose such information and, I am prepared to comply with such a need. However, disclosure of my medical background is only disclosed to the medical experts within that company. The information is medically confidential and persons receiving such information are bound by rules of confidentiality. The fear or worry of confidential medical information being improperly disclosed to persons who are not entitled to that information does not arise.
(i) Police Computer Files
31. My complaint here was quite simple. As a result of my arrest and the disclosure by the police, to me, in relation to my transsexuality, I wished to find out if details of that status were or were not stored on the computer files. In order to find out, I would have to disclose the very information to the police that I would not want them to have on computer in the first place.
(j) Legal Aid
32. My application in this matter was to deal with amendments to, and to have my birth certificate annotated. The State claims that due to the current state of English Law, I had no reasonable prospects of success.
33. English Law is based on Corbett and Tan - case law, NOT legislation. Under the English Legal system, judicial reviews can be sought and existing ‘case law’ can be challenged and overturned. Evidence available today discredits these cases as being ‘mischievous’ and it was my intention to establish this fact in the Courts and have such ‘case law’ removed, once and for all, from English Law. Legal Aid was refused on the basis that success was unlikely. I was prevented from going to Court and would have risked bankruptcy in costs exposure had I done so. Even a loss at first instance would have ruined me since I was unemployed at the time. I could not have afforded a lawyer and would have been in grave difficulties and at severe disadvantage had I tried to act alone. Application to the Commission was the only avenue open.
34. There is now produced and shown to me marked "KS 1" a copy of
TRANSSEXUALISM: THE CURRENT MEDICAL VIEWPOINT (dated 14th February 1995) Extract from: UK Parliamentary Forum. Medical sub-group:
(a) "It is considered that as scientific knowledge of transsexualism has progressed considerably since Corbett, and that the evidence presented there is no longer reliable, from the point of view of medical ethics, the imperatives of respect for autonomy, beneficence, non-maliference and justice mean that medicine would not support any legal interpretation of its research into transsexuality that would operate against the health, well-being or advantage of patients. Medically, there is no reasons why people receiving treatment for transsexuality should be given any less legal status than that of any other person."
(b) This is further enhanced by the UK medical community’s concern about the lack of "Quality of Life" for transgendered persons. Such "Quality of Life" (see also ‘Standards of Care’ (Exhibit "KSl") refers to patient satisfaction with their ability to:
1. Find employment
2. Make relationships
3. Integrate with the larger community
4. Live fulfilling lives
It is a matter of concern to the UK medical community that the current legal status of people who have been treated for transsexualism works against the four performance indicators listed above. 35. Prior to entering hospital, I had been presented with the appropriate "Standards of Care" to which I expected to be treated. I certainly expected and looked forward to a life of normality in accordance with 1-4 above, as mentioned in para. 4.2.2 Principle 5 of the "Standards of Care" and para. 5.2. of "Transsexualism: The Current Medical Viewpoint". The UK medical community strive to achieve this aim but their hands are tied by existing case law. As such, my expectations of 1-4 above are denied to me as a result of DIRECT interference by the State, which has not only denied me a ‘quality of life’, but has also directly interfered with medical decision and caused a reduced ‘standard of care’. This is deeply distressing. There have been some remarkable medical and scientific findings in determining the sex of an individual. Such an article was published in "Nature" in November 1995 when it was shown the "brain sex" could be determined. The United Kingdom has tried to ridicule these findings using second hand personal opinions of other medical experts who have not viewed the scientific finding or carried out research of their own. These personal opinions are not based on any scientific knowledge.
36. Personally or through my solicitor or Counsel, I am ready to provide any further information that the Court may need. I ask the Court to understand how much this matter means to me. I have suffered and seek your help.
Transsexualism: The Current Medical ViewpointContents
1Aims and Objectives of this Document
2 The Nature of the Medical Evidence
3 Diagnostic Criteria
5Outcomes and Measures
7 Recommendations for Legal Status
1 Aims and Objectives of this Document
1.1 The aim of this document is to:
• provide an overviewof current best practice in providing effective health care for people experiencing transsexualism
• focus discussionof the syndrome on the areas of diagnosis, treatment and outcomes, about which a considerable body of information exists, rather than on etiology (which is still unproven).
• describe the nature of the medical evidence
• identify appropriate diagnostic criteria for transsexualism
• indicate the main features of appropriate models of treatment
• identify outcomes and measures in terms of improved quality of life
• describe the case for a biological etiology
• make recommendations for the legal status of people experiencing transsexualism.
2 The Nature of the Medical Evidence
2.1 Following the general move away from a mechanistic basis of thought by the scientific community at large, new views of medicine, health and disease have arisen.1 In the UK, these have been accompanied by a government policy which identifies improved patient care as the main expected outcome of medical research and develqpment. 2 An important response of the medical profession to these changes has been its growing recognition that the application of quantitative, empirically-based methodologies to the social phenomenon of health does not necessarily produce results which can usefully inform the practice of medicine in its lived social and cultural contexts. Instead, there has been an increasing emphasis on the quality of life for patients as the major measure of the effectiveness of healthcare.
2.2 One result of this has been that in the process model of etiology -diagnosis - treatment - outcome, expectations of proving causality are now less significant. Instead, interest in etiology has focused increasingly on its usefulness in informing treatment and contributing to successful outcomes. This trend reflects the fact that the etiology of many of the chronic conditions for which medicine provides treatment is unknown. It also recognises that the growing complexity of scientific and social theories and their interrelationship makes causality increasingly difficult to define.
2.3 Thus, in the case of transsexualism, current medical practice considers it from the viewpoints of:
its sociobiological context, that is, its relationship to the overall functioning of individuals in their social contexts
measuring the effectiveness of diagnosis and treatment through outcomes expressed as improvements in the patient’s quality of life
relating UK practices to comparative practices elsewhere in Europe and the developed western world
treating each patient according to their individual need rather than by a standard, prescriptive regimen of healthcare
having an etiology which is unproven and which does not, therefore, provide appropriate evidence for an adversarial court-room setting
increasing concern that an inappropriate focus on etiology rather than an appropriate focus on the outcomes of treatment could operate to the disadvantage of patients.
3 Diagnostic Criteria
3.1 Two main diagnostic systems for transsexualism are in operation, lCD
10.5 and DSM IV .6 Diagnostic criteria which combine features of both
systems are as follows:
Transsexualism is a Gender Identity Disorder in which there is a strong and on-going cross-gender identification, and a desire to live and be accepted as a member of the opposite sex. There is a persistent discomfort with his or her anatomical sex and a sense of inappropriateness in the gender role of that sex. There is a wish to have hormonal treatment and surgery to make one’s body as congruent as possible with one’s psychological sex.
• The diagnosis of transsexualism is confirmed when gender dysphoria has been present for at least two years and has been alleviated by cross-gender identification.
• Transsexualism is linked with,, but distinct from
i Intersex conditions (e.g. Androgen insensitivity syndrome or congenital adrenal hyperplasia) and accompanying gender dysphoria.
ii Transient, stress related cross-dressing behaviour.
iii Persistentpre-occupation with castration or penectorny without a desire to acquire the sex characteristics of the other sex.
4.1 There is no single model of treatment: rather, variety in approach is both supported and sought as part of the continuing professional discussion of the syndrome. Typically, however, an effective model of treatment will utilise hormone therapy and surgical reconstruction and may indude: 7
• psychotherapeutic approaches
• creative therapies
4.2 Assessment of the patient’s progress is likely to take place at
approximately three monthly intervals and at the appropriate point surgery
willbe used. Depending on the physicality and the overall health of the patient, surgery may indude:
• orchidectomy (removal of testes)
• penectomy (removal ofpenis)
• vaginoplasty (construction of a vagina)
• clitoroplasty (construction of a clitoris)
• hysterectomy & oophorectomy (removal of uterus and ovaries)
• bilateral mastectomy (breast removal)
• phalloplasty (construction of a penis)
• thyroid chondroplasty (shaving of the Adam’s apple)
• crico-thyroid approximation & anterior commissure advancement (for raising the pitch of the voice)
• rhinoplasty (reshaping the nose)
• breast augmentation (enlargement of the breasts)
• cosmetic surgery such as hair transplants or facial remodelling
4.3 As medical and surgical techniques and knowledge increases, other or additional treatments may be used. In all cases, the length and kind of treatment provided will depend on the individual needs of the patient and will be subject to negotiation between the Consultants involved, the patient’s General Practitioner and the patient. Involving the patient (and, in the case of minors, the parents or guardians of patients) in the management of their own programme of care is considered to be extremely important.
5 Outcomes and Measures
5.1 There is a paucity of research into the long-term outcomes of treatment for transsexualism. However, the studies which have been carried out indicate that a treatment model using the principles described above is highly successful, with some suggesting up to a 97% success rate. 8This compares extremely favourably with the outcomes for other chronic conditions.
5.2Using a "Quality of Life" model for measuring the effectiveness of patient care, outcomes of this kind may be measured in terms of expressed patient satisfaction with their ability to:
• find employment
• make relationships
• integrate with the larger community
•live fulfilling lives.
5.3 It is a matter of concern to the UK med ical community that the current legal status of people who have been treated for Transsexualism works against the achievement of these performance indicators. That status acts as a "stigma coach" which marginalises individuals who have no visible or obtrusive difference from others and which encourages them to identify themselves as unable to integrate, make relationships or live fulfilling lives:
thus, it is likely to impair quality of life. In particular, the lack of substantive employment rights works directly against the important economic performance indicator of finding and maintaining employment
5.4 The heterosexual or homosexual partnership of the patient bears no predictable relation to outcomes of treatment for Transsexualism and should not be considered to be a measure for the effectiveness of treatment.
6.1 Dr Harry Benjamin introduced the syndrome to the general medical community in the early 1950s and advocated the compassionate treatment ofit.10 Benjamin favoured a biological explanation of the syndrome, believing that the genetic and endocrine systems must provide a "fertile soil" for environmental influences. 11
6.2 In their work on plastic surgery techniques four years later, Gullies and Millard echoed Benjamin’spoint of view and suggested that transsexualism should be classified as an intersex condition.12
6.3 In an authoritative review of research in this field in 1985, Hoenig follows Benjamin in ultimately depending on a biological force or forces to account for transsexualism.13 Summarising and commenting on this and other medical viewpoints three years later, in 1988, Doder indicates that the overall weight of evidence is that there is "the formation of some kind of gender system within the brain that is fundamental to ultimate gender identity and gender-role development", 14
6.4 it is a viewpoint of this kind that Money suggests in an authoritative paper The Concept of Gender Identity Disorder in Childhood and Adolescence After 37 Years where he states ‘causality with respect to gender identity disorder is subdivisible into genetic, prenatal hormonal, postnatal social, and postpubertal hormonal determinants’ and suggests "there is no one cause of a gender role. . . Nature alone is not responsible, nor is nurture, alone. They work together, hand in glove.’ 15
6.5 Most recently, in a paper given to the Council of Europe’s XXfflrd Colloquy on European Law, Gooren has suggested that ‘there is now evidence to believe that in transsexuals the sexual differentiation process of the brain taking place in the first years after birth has not followed the course anticipated of the preceding criteria of sex (chromosomal, gonadal and genital)’. 16 Thus, although sex assignment at birth by the criterion of the external genitalia is statistically reliable, in people experiencing transsexualism it is not: they are exceptions to the statistical rule.
6.6 This view that the weight of current scientific evidence suggests a biologically-based, multifactorial etiology for transsexualism is supported by articles in journals, the press and popular scientific works,17
7 Recommendations for Legal Status
7.1 The present legal position is that people who have been diagnosed as experiencing transsexualism immediately lose a substantial part of their civil liberties.18 It appears that this situation was decided by the decision in Corbett v Corbett which invoked chromosomal, gonadal and genital tests to define the legal sex of the plaintiff in the case.19 This definition has since been applied to employment to the disadvantage of people experiencing transsexualism, for example, by placing them apparently outside the remit of the Sex Discrimination Act. 20 These tests must be considered obsolete now in the light of new scientific information.
7.2 Current medical knowledge recognises that an absolute etiology for transsexualism is not available although the present weight of evidence is in favour of a biologically-based, multifactorial causality. It is considered, therefore, that scientific knowledge of transsexualism has progressed considerably since Corbett v Corbett and that the evidence presented there is no longer reliable. From the point of view of medical ethics, the imperatives of respect for autonomy, beneficence, non-maleficence and justice21 mean that medicine would not support any legal interpretation of its research into transsexualism that would operate against the health, well-being or advantage of patients Medically, there is no reason why people receiving treatment or who have received treatment for transsexualism should be given any lesser legal status than that of any other person.
1More general works such as Lupton, D (1992) Medicine as Culture, London: Sage and Seedhouse, D (1991) Liberating Medicine. Chichester Wiley, provide a useful overview and synthesis of the major work in this field, including that of, for example, Illich; Foucault; and Ian Kennedy.
2See, for example, NHS (1994) Supporting Research and Development in the NHS.
3See, for example, Colquhoun, D and Kellehar, A, eds. (1993) Health Research In Practice: Political, Ethical and Methodological Issues, (London: Chapman and Hall
See, for example, Fallowfield, L (1990) The Quality of Life: the Missing Measurement in Health Care. London: Souvenir Press
5World Health Organisation(1992) International Classilication of Disorders, Geneva:
American Psychiatric Association(1994) Diagnostic and Statistical Manual of Mental Disorders, 4th edition Washington: APA
7See, for example, Reid, R (1992)’ Working With Gender Dysphoria’, Counselling Gender Dysphoria. ed. Z-J Playdon, Devon: ATC
Green, R & Fleming, DT (1990) ‘Transsexual Surgery Follow-Up: Status in the
1990s’, Annual Review ofSex Research, ed. J Bancroft, vol 1, 1990, pp. 163-174. Of the 130 F-
Ms reported in the study, 97% of the outcomes were considered to be satisfactory; of the220
M-Fs, 87% of the outcomes were considered to be satisfactory. See alsoPfäfflin, F & Junge,
A(1992) Geschlechtumwandlung Schattauer, Stuttgart! New York for an extensive survey
For a general discussion of the medical effects of social stigmatisation see Scambler, C (1991) ‘Deviance, sick role and stigma’, Sociology As Applied to Medicine, ed. C Scambler, 3rd edition, London: Balliere Tindall, pp. 185-196.
10King, D (1993) The Transvestite and the TranssexuaL Newcastle on Tyne:
Athenaeum Press, p. 46.
11Benjamin stated that ‘if the soma is healthy and normal no severe case of transsexualism . . . is likely to develop in spite of all provocations’. Benjamin, H (1953) ‘Transvestism and Transsexualism’, Journal of Sex Research, 5:2, P. 13
12‘The physical sex picture does not always bear a fixed relation to the behaviour pattern shown by an individual. One or other hormone may determine an individual’s male or female proclivities quite independently of the absence of some of the appropriate physical organs. It may be suggested, therefore, that the definition of hermaphroditism should not be confined to those rare individual with proved testes and ovaries but extended to include all those with indefinite sex attitudes.’ Gillies, H & Millard, D R (1957) The Principles and Art of Plastic Surgery. Vol 1, London: Butterworth, p. 370-1.
Docter, X F (1988) T ransvestites and Transsexuals: Towards a Theory of Cross:
Gender Behaviour New York: Plenum Press, p. 63.
16 Gooren, Li C (1993) ‘Biological Aspects of Transsexualism and their relevance to its legal aspects’, Proceedings of the XXlllrd Colloquy on European Law: Transsexualism.. Medicine and the Law, Strasbourg: Council of Europe
17 For example, Moir, A & Jessel, D (1989) Brainsex London: Michael Joseph; Gorman, C (1992) "Sizing Up the Sexes",Time, 20 January 1992, pp. 3&-45; "Sex is all in the brain", Times, 12 September 1992.
18 McMullen, M & Whittle, S (1994) Transvestism. Transsexualism and the Law (London: Gender Trust).
All England Law Reports (1970) Vol 2 pp. 32-51 Corbett v Corbett otherwise Ashley 20 Industrial Tribunal Case No. 16132/93(1993) interim Decision of the Industri& Tribunal P v S and Cornwall County Council
21 Gillon, R (1994) "Medical ethics: four principles plus attention to scope" British Medical Journal, vol 309 (16 July 1994), pp. 184-188.
This document was produced as part of the work of the UK Parliamentary Forum on Transexualism chaired by Dr Lynne Jones MP. Its authorship was led by Dr Russell Reid, Hillingdon Hospital, Londn, in collaboration with:
Dr Domenico de Cegli, Tavistock Clinic
Mr James Dalrymple, London Bridge Hospital
Professor Louis Gooren, University of Amsterdam
Dr Richard Green, Gender Identity Clinic, Charing Cross Hospital
ProfessorJohn Money, Johns Hopkins Hospital, USA
14 February 1995
For enquiries contact;
Pield Heath Road
Revised draft (1/90)
STANDARDS OF CARE
The hormonal and surgical sex reassignment
of gender dysphoric persons
Original draft prepared by: The founding committee of the Harry Benjamin
International Gender Dysphoria Association, Inc.
Paul A. Walker, Ph.D. (Chairperson)
Jack C. Berger, M.D.
Richard Green, M.D.
Donald R. Laub, M.D.
Charles L. Reynolds, Jr., M.D.
Leo Woilman, M.D.
Original draft approved by: The attendees of the Sixth International Gender Dysphoria Symposium, San Diego, California,
Revised draft (1/80) approved by: The majority of the membership of the Harry Benjamin International Gender Dysphoria
Association, Inc. (1/80)
Revised draft (3/81) approved by: The majority of the membership of the Harry Benjamin International Gender Dysphoria
Association, Inc. (3181)
Revised draft (1/90) approved by: The majority of the membership of the Harry Benjamin International Gender Dysphoria
Association, Inc. (1/90)
Distributed by: The Harry Benjamin International
Gender Dysphoria Association, Inc.
15 15 ElCamino Real
Palo Alto, California 94306
4.2.2. Principle 5. Hormonal and/or surgical sex reassignment is performed for the purpose of improving the quality of life as subsequently experienced and such experiences are most properly studied and evaluated by the clinical behavioral scientist.
4.2.3. Principle 6. Hormonal and surgical sex reassignment are usually offered to persons, in part, because a psychiatric/psychologic diagnosis of transsexualism (see DSM-Il1, section 302.5X), or some related diagnosis, has been made. Such diagnoses are properly made only by clinical behavioral scientists.
4.2.4. Principle 7. Clinical behavioral scientists, in deciding to make the recommendation in favor of hormonal and/or surgical sex reassignment share the moral responsibility for that decision with the physician and/or surgeon who accepts that recommendation.
4.2.5. Standard 2. Hormonal and surgical (genital and breast) sex reassignment must be preceded by a firm written recommendation for such procedures made by a clinical behavioral scientist who can justify making such a recommendation by appeal to training or professional experience in dealing with sexual disorders, especially the disorders of gender identity and role.
4.3.1. Principle 8. The clinical behavioral scientist’s recommendation for hormonal and/or surgical sex reassignment should, in part, be based upon an evaluation of how well the patient fits the diagnostic criteria for transsexualism as listed in the DSM-IIl-R category 302.50 to wit:1
"A. Persistent discomfort and sense of inappropriateness about
one’s assigned sex.
B. Persistent preoccupation for at least two years with getting rid of one’s primary and secondary sex characteristics and acquiring the sex characteristics of the other sex.
C. The person has reached puberty."
This definition of transsexualism is herein interpreted not to exclude persons who meet the above criteria but who otherwise may, on the basis of their past behavioral histories, be conceptualized and classified as transvestites and/or effeminate male homosexuals or masculine female homosexuals.
4.3.2. Principle 9. The intersexed patient (with a documented hormonal or genetic abnormality) should first be treated by procedures commonly accepted as appropriate for such medical conditions.
4.3.3. Principle 10. The patient having a psychiatric diagnosis (i.e., schizophrenia) in addition to a diagnosis of transsexualism should first be treated by procedures commonly accepted as appropriate for such non-transsexual psychiatric diagnoses.
IN THE EUROPEAN COURT OF HUMAN RIGHTS
CASE NO’S. 31/1997/815/1018 & 32/1997/816/1019
KRISTINA SHEFFIELD -v- THE UNITED KINGDOM
RACHEL HORSHAM -v- THE UNITED KINGDOM ANNEX 10 TO MEMORIAL
STATEMENT OF Rachel HORSHAM
1 am a British/Dutch citizen. I was born on 15th February 1946 at Redhill General Hospital, Redhill, Surrey, England. My mother presented to the Registrar of Births & Deaths, 21st March 1946, in the District of Reigate, Surrey, these facts, namely that my sex was male and my forenames were to be Richard Jeremy Lionel. My mother explained to me a year ago, for the first time, that at the time of my birth, those in medical attendance, warned her that, in their view, I was female as the genitalia were part male and part female. Since that conversation with my mother, she refuses to speak to me anymore.
I spoke with Professor Gooren, my Endocrinologist, on the matter. He, in turn, wrote to the hospital where my birth took place to enquire for medical records from that time. The reply to him was that they destroy medical records after 25 years. The destruction of those records took place in 1971.
2. I was brought up as a boy. From my earliest memories, at about 4 years of age, I felt different from other children but never understood why. By the time I reached my teenage years, I found it difficult to relate to other girls as a boy, since my most inner feelings were that I was female and not male. I also had an increasing uneasiness about my sex and genitalia, that they were wrong. But I could not comprehend these feelings at the time.
3. At the age of seventeen and a half, I decided to take up a profession in nursing but was unable to find a hospital willing to enter as a trainee. I then decided to enter the Royal Army Medical Corps, in a professional capacity, as the only option to do the same training, in nursing. At the age of twenty-one, I found out that I was what was termed a transsexual. Because of my dysphoria and the problems it would cause for me to remain in the Royal Army Medical Corps, I gained a medical discharge on the grounds that I was physically unfit for military service.
4. After this, I decided to give up my nursing profession and entered the world of music and theatre. From thence I made my living from singing in clubs. During this time my dysphoria continued and I could not find anyone to turn to for help, including medical help. I was very much aware at the time of the Corbett affaire, which was in all the newspapers, and after the verdict from the Court, I decided that there was no place in England for me. As from the very nature of that verdict, someone like me was to be considered to be no more than a sexual deviant in the eyes of the public, the Law and even the medical profession. I was faced with having to keep a terrible secret about myself from others. I left the United Kingdom in 1971 with a few items of clothing and £100 in money. I felt like a fugitive on the run, from a society based on hypocritical values.
5. I spent three years travelling Turkey, Persia, Afghanistan, Lebanon, Eastern and Western Europe and arrived in the Netherlands in 1974 where I obtained a work permit. I tried to live with my dysphoria revealing it to no one since I realised that to do so would only bring scorn and derision on me from other people. Even the authorities in the Netherlands, at that time, did not understand this strange phenomenon. It was an arrestable offence for a person to publicly dress in attire of what was considered the opposite sex up until 1985. My life became no more than living in a twilight world of trying to be what was considered a normal person even though socially I was never accepted as being truly of the male gender but never considered to be a homosexual. Just an enigma. During the time I resided in the Netherlands, I found myself constantly involved in Court battles in an attempt to gain a permanent residence permit. The Department of Alien Police was not fully prepared to accept my work, theatrical, as in their view I did not fit into their idea of foreign workers which was work that a Dutch citizen was not prepared to do. I continued to work in the world of theatre, in comedy shows, in Berlin and Amsterdam, giving acting workshops when I was not performing. I ventured into the world of film and was involved in the making of a German comedy film "Der Mann im Pajama" in Berlin in 1980. I made a documentary film in Amsterdam in 1982 called "The Brown Horse". I worked on a film called "Speed" as camera operator and part director in Amsterdam in 1984.
6. My work stopped shortly after that when the Dutch Foreign Police attempted to throw me out of the country on the grounds that I did not satisfy their requirements of work in the Netherlands. I then spent the next few years fighting a legal battle to have my work permit returned, neither was I allowed to claim any sort of social security benefit. For me to have tried to do so would have given the Foreign Police, a legal reason for stating that I was a drain on the finances of the state. With 25 Dutch Guldens to my name, I started a small bakery in which I worked up to 14 hours a day for seven days a week in order to eke out a living and try to prove to the authorities that I was, in their eyes, working for a living. In 1990, I won my case at the Supreme Court and the Dutch Ministry of Justice ordered the Foreign Police to provide me with a permanent residence permit. I was never compensated for the actions of the Foreign Police, which were not legal.
7. At that point, for the first time, I found myself with a firm base on which to progress further with the work I loved, the theatre. But, by that time, my dysphoria was so acute that I was on the verge of suicide. My life was wrecked and never lived as I should have been able to live, in my true gender, a woman. I decided to find medical help. I found this by visiting a centre for people who were transsexual. They put me in contact with the Andrology Clinic at the Free University in Amsterdam. I underwent physical medical examinations, and interviews with a psychologist who decided that I was transsexual and needed urgent medical and surgical treatment. My Endocrinologist was Professor Gooren and my internist was Dr Assemann. In less than a year, my physique totally transformed which was extremely fast. Prior to the beginning of the medical treatment, my physique had never been really male. The hormone treatment I received did no more than allow my body to develop as it should have done at a much earlier stage of my life. My psychologist was of the opinion that I was ready for surgery within the first year of medical treatment, but could not be carried out due to legal requirements of a minimum of 18 months before surgery could take place.
8. In October 1991, I asked at the British Consul for a passport to reflect my status as a woman and if they would accept a letter of Deed Poll from a solicitor in England for a change of forenames. I was refused on the grounds, that change of name by Deed Poll was not recognised outside of the United Kingdom, nor would they issue me with a new passport. I explained to them that since my passport in my sex description did not fit my physical appearance neither did my forenames, which was causing me acute embarrassmcnt at a social security office, employment office, my bank account and legal matters connected to my property, my home, and I was under medical treatment awaiting surgery, I felt entitled to a new passport which I had been informed was possible before surgery took place provided that I could show evidence of this from the doctors concerned. The Consul was adamant and told me that I would have to make the name changes through a Dutch Court of Law, then they would provide me with a new passport. Under Dutch law, this was not possible for me until after surgery had taken place.
9. After undergoing surgery in May 1992, I contacted a lawyer F A van der Reijt in Tilburg, who specialised in cases such as mine. He presented all the relevant medical Affidavits detailing my case to the City Courts of Amsterdam. The case was delivered to the Court on 27th July 1992 under Article 29a and 29b of the Dutch Civil Law. Judgment was given on 24th August 1992. The Judgment demanded the enrolment of my birth certificate into the Registers of Births & Deaths in S - Gravenhage (the Hague) and the amending of my forenames Richard Jeremy Lionel to read Rachel Joanna Louise and the amending of the sex from male to read female. A Dutch birth certificate was made on 19th October 1992 which shows all the original information of my English birth certificate and the legal amendment of my sex and forenames. On 11th September 1992, the British Consul in Amsterdam finally issued me with a new passport after production of the Court Order.
10. On 15th November 1992, I applied to the office of Population Census and Surveys for recognition of the demands of the Court of Amsterdam and amend the sex and forenames in the registers in England. In a reply of 20th November 1992. I was refused on the grounds that there were no provisions to inscribe new information in the registers or to issue a certificate showing any other information other than that recorded in the entry of my birth. Previous to that letter, I had a letter from the same office, dated 13th February 1992 stating that provision did exist under Section 29 of the Births and Deaths Act for an entry in the Births Register to be altered and that there is no provision for recording a change of name.
11. During the time I was undergoing medical treatment, I began a relationship with a man. No physical act of sex ever took place between us since that was not possible until after I had undergone surgery. He was not aware that I was undergoing medical treatment and it was only after I had undergone surgery that he, one day, professed his love for me. I felt then that I had to tell him about my background. He was surprised, slightly dumbfounded, but accepted this as he had not known me as anything other than a woman. It was after this that he felt willing to enter into a contract of marriage with me since I was legally a woman with all the legal rights of a woman including marriage to a man. We had decided to move our marital home to the United Kingdom since I felt I wished to return back to my own country of origin. But there were problems concerning our proposed marriage. We could not get any definite answer from the OPCS to state that our marriage would be legally recognised in the United Kingdom.
12.On 6th September 1993, I was naturalised as a Dutch citizen through the Dutch Ministry of Justice and allowed to keep my British nationality. It was explained to me that as long as I kept my British nationality, the Dutch Government could not assist me if on returning to my country of origin I encountered legal problems. I only made this decision because the United Kingdom Government was refusing already to accept my legal status as a woman, refusing to amend my birth certificate. Taking Dutch nationality also took me out of the documentation of the Dutch Foreign Police. I retained my British nationality since that is my country of origin and have no intention of giving this up as I fully intend to return there. But since I have been refused recognition of my true legal status as a woman, I have found myself placed in a situation of forced exile from my own country of origin. I may return provided I accept the status of being legally a man. I refuse to accept this concept as I am legally and physically a woman.
13. From the time that this legal problem occurred, it has totally thrown my life into confusion which has resulted in the destruction of my career/profession and financial jeopardy. I had to stop work in my acting profession and confine myself to a study of the law in an effort to correct the situation. This lead to investigatory work which uncovered amended birth certificates of persons who had previously had their birth certificates amended under Section 29 of the Births & Deaths Act. Having searched for those still living from the Corbett affaire, I established that only April Ashley is still living. Finding out about the darker side and the truth of why they refuse to use Section 29 of the Births & Deaths Act, the Sempill affaire, which I first learnt about from April Ashley. I had attempted to take legal action in the United Kingdom but the solicitor I had dealings with declined to take the case since it was not possible to demand legal changes by the Government through a Court of Law. This work has cost me a large sum of money. My income has been derived from social security which was based upon the ownership of my home. I had to mortgage my home to the City Council of Amsterdam and this has to be paid back when I resume paid work again. Therefore, I had to make private loans, loans from a loan company, overdrafts from two bank accounts.
What has occurred is that the intransigence of the United Kingdom in this matter has effectively removed me from my normal activities of procuring income from employment; placing me in a situation of receiving a pittance of income from Social Security; destroying my abilities of re-entering work in the theatre. Employers are not eager to employ me for the reasons that I have been on Social Security for too long and to explain the reasons why places me in the position of being a person with a problem which has never been my problem in the first place but one instigated by the British Government. I am even now considered too old to be employable because I am now in my fifties. None of the normal maintenance of my home could take place because of the bills I have had to pay out for the work I have had to do on this case which has resulted in deterioration of my home; what would have been normal maintenance costs have now become extremely high.
14. Notwithstanding the position in which I have been placed both in relation to my work and financially, the actions of the Government have been little more than mental cruelty resulting in emotional stress. What they had done can only be described as human cruelty, as it is continuous.