Medico legal aspects related to gender incongruence

Abstract

Background: Transgender individuals have a gender identity, expression, or behavior that differs from the socio-culturally accepted or legally assigned sex at birth. In Sri Lanka, transgender persons over 16 years can obtain a gender recognition certificate after assessment by a consultant psychiatrist. However, inconsistencies in sex and gender recognition create challenges, particularly in medico-legal contexts. Such challenges are discussed in this paper.

Case report: A 31-year-old transwoman was subjected to an autopsy. Cohabiting partner provided a national identity card with her gender as female. However, in the absence of a gender recognition certificate, biological sex was determined as a male through scientific examination and recorded in the Medico-Legal Autopsy Notification Form. Subsequently there was a complaint to the Human Rights Commission, disputing the assigned gender in the autopsy report and to the hospital director as inquiring gender details during autopsy is inappropriate.

Results: Legal gender recognition in Sri Lanka remains binary, creating conflicts when an individual’s gender identity does not align with biological sex or official documentation. Further, transgender identities with or without medical transition may create ethical and legal issues in shared spaces where sex-based admission policies apply. Additionally, legal ambiguities raise concerns about personation in criminal cases, marriage, and inheritance disputes, particularly when gender transition is undisclosed. The law of cheating by personation is applicable in divorce, without disclosing the transgender state to the partner in marriage. The Vagrants Ordinance and Penal Code may also be interpreted to criminalize transgender identities in specific contexts, such as indecent behavior and gross indecency between persons considering redressing and homosexuality. The validity of transgender marriages remains untested in Sri Lankan courts.

Conclusion: Standardized policies are needed to address medico-legal conflicts surrounding gender recognition. Recognizing both transgender rights and the rights of involved parties is essential for ensuring justice and equal protection under the law.