In Re RW Heilig

WILNER, Judge. Petitioner was born in Pennsylvania in 1948. His birth certificate, issued by the Department of Health of that State, records his name as Robert Wright Heilig and his sex as male. In March, 2001, Mr. Heilig filed a petition in the Circuit Court for Montgomery County, in which he alleged that he was then a Maryland resident and that he was “transitioning from male to female.” Invoking the equitable jurisdiction of the court, he asked for an order that would change his name to Janet Heilig Wright and change his “sexual identity” designation from male to female.

He noted in his petition the existence of Maryland Code, § 4-214(b)(5) of the Health-General Article, which directs the Secretary of Health and Mental Hygiene, upon receipt of a court order indicating that the sex of an individual born in Maryland “has been changed by surgical procedure,” to amend that person’s Maryland birth certificate accordingly, but he did not ask the court to order the alteration or amendment of his Pennsylvania birth certificate or, indeed, of any other document. ⁶⁹⁴ No answer or opposition of any kind was filed to the petition. Nonetheless, although ultimately entering an order that changed petitioner’s name, the court refused to enter an order changing his sexual identity, concluding that (1) gender had physical manifestations that were not subject to modification, and (2) there was no authority for the court to enter such an order. The effect of the order was to give petitioner a woman’s name but to retain his official gender as male. Petitioner did not contest the change in name but appealed the part of the judgment denying his request for recognition of his change in gender.

The Court of Special Appeals affirmed that decision, on at least three alternate grounds. First, although the petition was certainly not filed as such, the court treated the request for change of gender (although not the request for change of name) as necessarily being in the nature of an action for declaratory judgment. The court concluded, however, that, as no one contested the relief sought or challenged petitioner’s claim or status, there was no immediate case or controversy and therefore no justiciable claim and, accordingly, no “jurisdiction” to enter declaratory relief. The court suggested that, if petitioner ever desired to marry a man and was denied a marriage license because of his gender, such a controversy might exist, but observed that none existed currently.

Second, the intermediate appellate court held that, even if a justiciable claim had been presented, there was no statutory or common law basis for the kind of general gender-change order sought by petitioner. Section 4-214(b)(5) was inapplicable, as petitioner had not been born in Maryland, and the court could find no other authority for a court to change the designation of a person’s sex or gender. Though acknowledging that Maryland courts have equity jurisdiction to fashion remedies in the absence of an authorizing statute, the Court of Special Appeals concluded that such jurisdiction must be based on traditional, fundamental principles of the common law, and not on the broad concept of fairness alone. It rejected the notion that equitable jurisdiction in this case could be based on the principle that “equity ⁶⁹⁵ will not suffer a wrong to be without a remedy.” The petitioner, the court said, had not yet suffered a wrong.

Finally, the appellate court concluded that, even if the Circuit Court had equitable jurisdiction to grant the relief requested, such relief could not be granted to the petitioner because he had not shown that any purported change in his sexual status was in fact permanent. In default of such evidence, the court stated, the petitioner “has not established a strong case on the equities.” We granted certiorari to consider whether a Maryland Circuit Court has jurisdiction to grant the kind of relief sought by petitioner, and, if so, whether, on the record in this case, petitioner has established a right to that relief. We shall conclude that (1) jurisdiction does exist to determine and declare that a person has changed from one gender to another, (2) petitioner did not establish that he had sufficiently effected that change to be entitled to such a determination and declaration, but, (3) in the interest of justice, he should be permitted to offer further proof in this regard. We shall therefore direct that the case be remanded to the Circuit Court for further proceedings.

BACKGROUND Perhaps because there was no opposition to the petition, the factual evidence in support of petitioner’s request for a legal determination of gender change was rather skimpy. Attached to the petition was a copy of petitioner’s birth certificate and two letters, each addressed “To Whom It May Concern.” The first, from Dr. Michael Dempsey, an endocrinologist, stated that petitioner had been under his care for eighteen months as a “transgendered person,” that her treatment consisted of female hormones and anti-androgens “designed to maintain her body chemistry and bring about anatomical changes within typical female norms,” that the hormonal therapy had resulted in “hormonal castration,” and that, in Dr. Dempsey’s medical opinion, the gender designation on petitioner’s driver’s license and other documents should be changed to female to “accu ⁶⁹⁶ rately reflect both her appearance and the hormonal changes of her body.” 1 The second letter, from a licensed social worker named Ellen Warren, stated that petitioner “is in psychotherapeutic treatment ... as a transsexual woman,” that it was Ms. Warren’s professional opinion that petitioner’s name and gender should be legally changed to reflect “her true gender identity, which is female,” and that such change was “in accordance with the Standards of Care of the Harry Benjamin International Gender Dysphoria Association.” A court master, completely misconstruing the nature of the requested relief, placed in the court file and presumably sent to petitioner a document asking what authority a Maryland court had “over the Secretary of State for Pennsylvania” and for petitioner to “indicate how petition complies with Health-Gen Article § 4—214(b)(5).” Petitioner responded with a memorandum urging that, although the court had no authority over officials from other States, it did have equity jurisdiction to entertain petitions for change of name and gender filed by Maryland residents. Petitioner acknowledged that, because he was not born in Maryland and did not have a Maryland birth certifícate, he was unable to take direct advantage of § 4—214(b)(5), but contended that, under equal protection principles, he was entitled to a determination from a court of competent jurisdiction that his gender had changed. The hearing conducted by the Circuit Court dealt entirely with the issue of jurisdiction.

No inquiry was made as to whether petitioner had undergone any sex reassignment surgery, whether and to what extent the hormonal therapy noted by Dr. Dempsey was permanent and irreversible, or what, if ⁶⁹⁷ any, criteria had been generally accepted in the medical or legal community for determining when, if ever, a complete, permanent, and irreversible gender change has occurred. Although it seems clear from our research that this issue has been considered by courts and legislatures in other States and countries and by various non-judicial agencies, no evidence of the type just noted was presented to the Circuit Court. The only evidence presented in support of the petition, apart from the two letters attached to it, was a form letter from the Maryland Motor Vehicle Administration establishing that, upon review and recommendation by its Medical Advisory Board, the Administration does recognize “transitional gender status change” and will issue a new driver’s license reflecting that change, 2 and a copy of the fifth version of the Standards of Care for Gender Identity Disorders adopted by the Harry Benjamin International Gender Dysphoria Association. DISCUSSION Transsexualism: Medical Aspects One of the dominant themes of transsexualism, 3 which, to some extent, is reflected in the two letters and the Standards ⁶⁹⁸ offered by petitioner, is the belief that sex/gender is not, in all instances, a binary concept — all male or all female.

See Leslie Pearlman, Transsexualism as Metaphor: The Collision of Sex and Gender, 43 Buffalo L.Rev. 835, 842-43 (1995); Julie A. Greenberg, Defining Male and Female: Intersexuality and the Collision Between Law and Biology, 41 Ariz. L.Rev. 265, 275-76 (1999). Transsexuals, as petitioner claims to be, seek to achieve recognition of the view that a person’s gender/sex is determined by his or her personal sexual identity rather than by physical characteristics alone. 4 Sex reassignment surgery, under that view, merely harmonizes a person’s physical characteristics with that identity. See M.T. v. J.T., 140 N.J.Super. ⁶⁹⁹ 77, 355 A.2d 204, 211 (App.Div.1976) (“In this case the transsexual’s gender and genitalia are no longer discordant; they have been harmonized through medical treatment.

Plaintiff has become physically and psychologically unified and fully capable of sexual activity consistent with her reconciled sexual attributes of gender and anatomy.”). This Opinion is not intended to be a medical text. Apart from our own incompetence to write such a text, it appears that some of the concepts that underlie the views espoused by transsexuals who seek recognition of gender change are the subject of debate, in both the medical and legal communities. The literature, in both communities, is extensive and daunting, and, unguided by expert testimony, there is no way that we could evaluate it properly.

It is, however, necessary to understand those underlying concepts in order to determine what gender is and whether, or how, it may be changed. There is a recognized medical viewpoint that gender is not determined by any single criterion, but that the following seven factors may be relevant: (1) Internal morphologic sex (seminal vesicles/prostate or vagina/uterus/fallopian tubes); (2) External morphologic sex (genitalia); (3) Gonadal sex (testes or ovaries); (4) Chromosomal sex (presence or absence of Y chromosome); (5) Hormonal sex (predominance of androgens or estrogens); (6) Phenotypic sex (secondary sex characteristics, e.g. facial hair, breasts, body type); and (7) Personal sexual identity. See Greenberg, supra, 41 Ariz. L.Rev. at 278 (citing John Money, Sex Errors of the Body and Related Syndromes: A Guide to Counseling Children, Adolescents and Their Families (2d ed. 1994)); In re Estate of Gardiner, 29 Kan.App.2d 92 , 22 P.3d 1086 (2001) (citing Greenberg); Maffei v. Kolaeton Indus., 164 Misc.2d 547 , 626 N.Y.S.2d 391 (N.Y.Sup.Ct.1995); ⁷⁰⁰ compare Corbett v. Corbett, [1970] 2 All E.R. 33, 2 W.L.R. 1306 (Probate, Divorce, and Admiralty Div. 1970) (stressing, for purposes of determining the validity of a marriage, only the chromosomal, gonadal, and genital factors); Attorney General v. Otahuhu Family Court, [1995] 1 N.Z.L.R. 603 (High Court Wellington, N.Z. 1994) (stressing importance as well of psychological and social aspects of gender); Stedman’s Medical Dictionary 1626 (27th ed. 2000) (defining “sex”).

Blackburn notes that the initial development of a fetus is asexual. Susan Tucker Blackburn, Maternal, Fetal, & Neonatal Physiology: A Clinical Perspective 19-24 (2d ed. 2002). The fetus first forms rudimentary sexual organs— gonads, genital ridge, and internal duct system — that later develop into sexually differentiated organs: testes or ovaries, penis/scrotum or clitoris/labia, and fallopian tubes or seminal vesicles/vas deferens, respectively. This initial differentiation, according to Blackburn, is governed by the presence or absence of a Y chromosome inherited from the father.

If present, the Y chromosome triggers the development of testes, which begin to produce male hormones that influence much of the fetus’s further sexual development. Those hormones cause the development of male genitalia and inhibit the development of the fetus’s primitive fallopian tube system. If the Y chromosome is not present, the fetus continues on what has been characterized as the “default” path of sexual development. The gonads develop into ovaries, and, freed from the inhibiting influence of male hormones, the fetus’s primordial duct system develops into fallopian tubes and a uterus.

Most often, it appears, a fetus’s sexual development is uneventful, and, because all of the sexual features are consistent and indicate one gender or the other, the person becomes easily identifiable as either male or female. When this development is changed or interrupted, however, the situation may become less clear, and people may be born with sexual features that are either ambiguous (consistent with either sex) or incongruent (seemingly inconsistent with their “assigned” sex). See generally Alice Do Murat Dreger, Hermaphrodites and the Medical Invention of Sex 35-40 (1998) (summarizing ⁷⁰¹ varieties of sexual ambiguity); Blackburn, supra, at 24-28 (discussing physiological anomalies in fetal sexual development); Greenberg, supra, 41 Ariz. L. Rev. at 279-90; Claude J. Migeon & Amy B. Wisniewski, Sexual Differentiation: From Genes to Gender, 50 Horm.

Res. 245 (1998); Selma Feldman Witchel & Peter A. Lee, Ambiguous Genitalia, in Pediatric Endocrinology 2d 111 (Mark A. Sperling ed., 2002); Alan J. Schafer & Peter N. Goodfellow, Sex Determination in Humans, 18 BioEssays 955, 955-963 (1996); John Money & Anke A. Ehrhardt, Man & Woman, Boy & Girl: Gender Identity From Conception to Maturity 1-21 (1996). Individuals who have biological features that are ambiguous or incongruent are sometimes denoted as intersexed or hermaphroditic. 5 See Greenberg, supra, 41 Ariz. L. Rev. at 283-292 (summarizing plethora of medical conditions where factors contributing to sex determinations are ambiguous or incongruent). The variety of intersexed conditions encompasses virtually every permutation of variance among the seven factors considered in determining gender.

These various ambiguities, moreover, may occur both within a specific factor (e.g., ambiguous, unclassifiable genitalia) or between two or more different factors (e.g., chromosomal sex is incongruent with morphological sex). See Dreger, supra, at 37-38; Greenberg, supra, 41 Ariz. L. Rev. at 281-290. Generally, these conditions are classified into three “theoretical types”: male pseudohermaphroditism, female pseudohermaphroditism, and true hermaphroditism.

See generally Dreger, supra, at 35-40, Blackburn, supra, at 24-28, Greenberg, supra, 41 Ariz. L.Rev. at 281-283. The true hermaphrodite consists of an individual with at least some ovarian tissue and some testicular tissue, and is the most rare. Female pseudohermaphrodites often have XX chromosomes and ovaries, but exhibit “masculinized” external genitalia.

The “masculinization” of the genitalia can take many forms, including ⁷⁰² the enlargement of the clitoris or swelling of the labia (thus resembling a scrotum). Male pseudohermaphroditism describes an individual who is chromosomally male (XY) and has testes, but who also has external genitalia that have become feminized. In one condition, called androgen insensitivity syndrome (AIS), the feminization of the genitalia is the result of the body’s inability to respond to the developmental influences of androgen. Without the effects of the male hormone, the genitalia develop along the “default” path of feminity.

This process continues through puberty, resulting in a person with (undescended) testes and male chromosomes who is very feminine. Because the condition may be detectable only upon an internal examination, it is often undiagnosed until puberty, when the presumed woman fails to menstruate. A condition that produces similar results is known as 5-alpha-reductase deficiency (5AR). Like AIS, the individual with 5AR deficiency has testes but fails to respond to androgen in the womb, resulting in feminine external genitalia.

With the onset of puberty, however, the individual does begin to respond to the increased production of testosterone, and the body begins to masculinize. The individual grows tall and muscular, begins to grow facial hair, and the genitals become more masculine. Some' of these types of ambiguities, as noted above, may go largely unnoticed by the individual manifesting them, and may go undiagnosed for years. In other cases, the individual’s sexual ambiguity may be the result of a mistaken “sex assignment” at birth.

The official designation of a person as male or female usually occurs at or immediately after birth, and is often based on the appearance of the external genitalia. See William Reiner, To Be Male or Female —That is the Question, 151 Archives Ped. & Adolescent Med. 224 (1997); Milton Diamond & H. Keith Sigmundson, Sex Reassignment at Birth, 151 Archives Ped. & Adolescent Med. 298 (1997); Fayek Ghabrial & Saa M. Girgis, Reorientation of Sex: Report of Two Cases, 7 Int’l J. Fertility 249 (1962). Sometimes, when the genitalia are abnormal, ⁷⁰³ doctors have erred in determining the baby’s sex, mistaking an enlarged clitoris for a small penis, or vice versa. See Ghabrial & Girgis, supra, at 252.

The criteria for determining sex at birth, one researcher has argued, are simply too rudimentary to be entirely accurate. He notes that, “Past clinical decisions about gender identity and sex reassignment when genitalia are greatly abnormal have by necessity occurred in a relative vacuum because of inadequate scientific data. Clinical decisions have been constructed largely on the predicted adequacy of the genitalia for adult sexual function. But the human may not be so easily deconstructed.

Sex chromosome anomalies, gender identity disorder, genital malformations, metabolic adrenal or testicular errors — these conditions imply a sexual plasticity of great complexity.” Reiner, supra, at 224. In the past, it was not uncommon, if a doctor examining the neonatal child observed what appeared to be ambiguous genitalia and concluded that the genitalia so observed would be incapable of functioning in the male capacity, for the doctor to recommend that the child be surgically altered and raised as a girl. See Kenneth I. Glassberg, Gender Assignment and the Pediatric Urologist, 161 J. Urology 1308 (1999); see also Diamond & Sigmundson, supra, 151 Archives Ped. & Adolescent Med. at 298; Ghabrial and Girgis, supra, 7 Int’l J. Fertility at 252; Hermer, supra, 11 Ann. Health L. at 196-97; Greenberg, supra, 41 Ariz. L.Rev. at 290-91.

It was previously believed that a person was psychosexually neutral at birth, and that subsequent psychosexual development was dependent on the appearance of the genitals. Diamond and Sigmundson, supra, at 298. Thus, it was assumed, the altered male would psychologically respond, adapt to the new genitalia, and develop into a functional and healthy female. That view appears no longer to be generally accepted.

Individuals who have undergone such surgical alterations as a result of abnormal genitalia often have rejected their “assigned” gender and ultimately request that the alterations be ⁷⁰⁴ surgically negated so that they may assume their original gender. Id. at 303 (“there is no known case where a 46-chromosome, XY male, unequivocally so at birth, has ever easily and fully accepted an imposed life as an androphilic female regardless of physical and medical intervention.”). In this regard, the medical community seems to have concluded that human brains are not psychosexually neutral at birth but are “predisposed and biased to interact with environmental, familial, and social forces in either a male or female mode.” Id 6 The medical community’s experience with patients born with ambiguous genitalia has led many researchers to believe that the brain “differentiates” in útero to one gender or the other and that, once the child’s brain has differentiated, that child cannot be made into a person of the other gender simply through surgical alterations. See Diamond & Sigmundson, supra, at 303.

Some scientists have argued that such medical developments now offer a robust biological explanation of transsexualism — that the brain has differentiated to one sex while the rest of the body has differentiated to another. See Frank P.M. Kruijver et al., Male-to-Female Transsexuals Have Female Neuron Numbers in a Limbic Nucleus, 85 J. Clin. Endocrinology & Metabolism 2034 (2000); see also ⁷⁰⁵ discussion in Bellinger v. Bellinger, [2001] EWCA Civ. 1140, [2002] Fam. 150 (C.A. 2001). Transsexualism was once regarded as a form of sexual or psychological deviance and, in some quarters, is still considered so today.

See, e.g., Hartin v. Bureau of Records, 75 Misc.2d 229 , 347 N.Y.S.2d 515, 518 (N.Y.Sup.Ct.1973) (where the New York Board of Health described sex reassignment surgery as “an experimental form of psychotherapy by which mutilating surgery is conducted on a person with the intent of setting his mind at ease, and that nonetheless, does not change the body cells governing sexuality.”); Corbett v. Corbett, [1970] 2 All E.R. 33, 2 W.L.R. 1306 (Probate, Divorce, and Admiralty Div. 1970) (finding litigant’s transsexualism to be a “psychological abnormality”); Maggert v. Hanks, 131 F.3d 670, 671 (7th Cir.1997) (in describing transsexual wishing to undergo sex reassignment surgery, court observed that “[s]omeone eager to undergo this mutilation is plainly suffering from a profound psychiatric disorder.”). Recent studies have suggested that this condition may be associated with certain conditions in the womb and certain processes in the developing pre-natal brain. As noted, there is evidence suggesting that the brain differentiates into “male” and “female” brains, just as the fetus’s rudimentary sex organs differentiate into “male” and “female” genitalia. See Diamond & Sigmundson, supra, 151 Archives Ped. & Adolescent Med. at 303.

These studies, the authors assert, “clearly support the paradigm that in transsexuals sexual differentiation of the brain and genitals may go into opposite directions and point to a neurobiological basis of gender identity disorder.” Id.; see also Kruijver et al., supra, 85 J. Clin. Endocrinology & Metabolism at 2034; see also Jiang-Ning Zhou et al., A Sex Difference in the Human Brain and its Relation to Transsexuality, 378 Nature 68 (1995). Researchers theorize that the developing brain may differentiate in response to hormonal levels in the womb — “intrauterine adrogen exposure.” Reiner, supra, 151 Archives Ped. & Adolescent Med. at 224. This hypothesis has been tested with animals.

See John Money, The Concept of Gender Identity Disorder in ⁷⁰⁶ Childhood and Adolescence After 39 Years, 20 J. Sex & Marital Therapy 163, 170 (1994). Research has indicated, for instance, that the sexual differentiation of primates may be manipulated by controlling prenatal hormone exposure. See Robert W. Goy et al., Behavioral Masculinization is Independent of Genital Masculinization in Prenatally Androgenized Female Rhesus Macaques, 22 Hormones & Behavior 552 (1988). Such experimental results have been cited by at least one court.

See Doe v. McConn, 489 F.Supp. 76, 78 (S.D.Tex. 1980) (describing the results of experiments discussed above). The studies imply that transsexualism may be more similar to other physiological conditions of sexual ambiguity, such as androgen insensitivity syndrome, than to purely psychological disorders. Reiner posits: “What can be stated is that the absence of prenatal androgen exposure, whether a child is XX, XO, has an androgen insensitivity syndrome, and so on, may render the brain to the default, or female, position. Within the potential for transformation from the default brain to the virilized brain is the opportunity for errors of incomplete or improperly timed androgen exposure.

Such errors, in addition to acquired, sometimes iatrogenic, post-natal injuries ... may lead to the misassignment or reassignment of sex at birth from the genetic sex.” Reiner, supra, 151 Archives Ped. & Adolescent Med. at 225. The ultimate conclusion of such studies, which, as noted, is the central point sought to be made by transsexuals, is that the preeminent factor in determining gender is the individual’s own sexual identity as it has developed in the brain. Reiner continues: “In the end it is only the children themselves who can and must identify who and what they are. It is for us as clinicians and researchers to listen and to learn.

Clinical decisions must ultimately be based not on anatomical predictions, nor on the ‘correctness’ of sexual function, for this is neither a question of morality nor of social consequence, but on that path most appropriate to the likeliest psychosex ⁷⁰⁷ nal developmental pattern of the child. In other words, the organ that appears to be critical to psychosexual development and adaptation is not the external genitalia, but the brain.” Reiner, supra, at 225. Regardless of its cause, the accounts from transsexuals themselves are startlingly consistent. See, e.g., In re Estate of Gardiner, 42 P.3d 120 (Kan.2002); Littleton v. Prange, 9 S.W.3d 223, 224 (Tex.Ct.App.1999); M.T. v. J.T., 140 N.J.Super. 77 , 355 A.2d 204, 205 (App.Div.1976).

They grow up believing that they are not the sex that their body indicates they are. They believe that they have mistakenly grown up with the wrong genitalia. These disconcerting feelings often begin early in childhood, as early as three or four years. See, e.g., Littleton, supra, 9 S.W.3d at 224 ; M.T., supra, 355 A.2d at 205 (where the expert witness testified that “[t]here was ... ‘very little disagreement’ on the fact that gender identity generally is established ‘very, very firmly, almost immediately, by the age of 3 to 4 years.’ ”); Doe v. McConn, 489 F.Supp. 76, 78 (S.D.Tex.1980) (“Most, if not all, specialists in gender identity are agreed that the transsexual condition establishes itself very early, before the child is capable of elective choice in the matter”).

These individuals often rebel against any attempt to impose social gender expectations that are inconsistent with what they believe they are-they may refuse to wear the “appropriate” clothes and refuse to participate in activities associated with their assigned gender. See, e.g., M.T., supra, 355 A.2d at 205 ; see also Diamond & Sigmundson, supra, 151 Archives Ped. & Adolescent Med. at 299-301. That kind of behavior has become one of the determining factors for a diagnosis of gender identity disorder. A transsexual wishing to transition to a different gender has limited options.

See Harry Benjamin International Gender Dysphoria Association, Standards of Care for Gender Identity Disorders (5th ed. 1998). Generally, the options consist of psychotherapy, living as a person of the desired sex, hormonal treatment, and sex reassignment surgery. Although psychotherapy may help the transsexual deal with the psychological ⁷⁰⁸ difficulties of transsexualism, courts have recognized that psychotherapy is not a “cure” for transsexualism. McConn, supra, 489 F.Supp. at 78 .

Because transsexualism is universally recognized as inherent, rather than chosen, psychotherapy will never succeed in “curing” the patient: “Most, if not all, specialists in gender identity are agreed that the transsexual condition establishes itself very early, before the child is capable of elective choice in the matter, probably in the first two years of life; some say even earlier, before birth during the fetal period. These findings indicate that the transsexual has not made a choice to be as he is, but rather that the choice has been made for him through many causes preceding and beyond his control. Consequently, it has been found that attempts to treat the true adult transsexual psychotherapeutically have consistently met with failure.” McConn, supra, 489 F.Supp. at 78 . Hormonal treatment has been shown to be more effective, and, for the male-to-female transsexual, results in breast growth, feminine body fat distribution, a decrease in body hair, and softening of the skin.

Although most of these effects are reversible upon termination of the treatment, the individual’s breast growth may not reverse entirely. Hormonal treatment for female-to-male transsexuals results in deepening of the voice, enlargement of the clitoris, breast atrophy, increased upper body strength, weight gain, increased facial and body hair, baldness, increased sexual arousal, and decreased hip fat. Surgical options for the male-to-female transsexual include orchiectomy (removal of gonads), vaginoplasty (construction of vagina), and mammoplasty (construction of breasts). Jerold Taitz, Judicial Determination of the Sexual Identity of Post-operative Transsexuals: A New Form of Sex Discrimination, 13 Am.

J.L. & Med. 53 , 55-56 (1987). Some patients elect to undergo additional cosmetic surgeries to enhance other secondary sex features, such as facial structure or voice tone. Surgical options for the female-to-male transsexual include ⁷⁰⁹ mastectomy, hysterectomy, vaginectomy, and phalloplasty. As most health insurance companies currently exclude coverage for transsexual treatment, the out-of-pocket cost is often prohibitively expensive.

Taitz, supra, at 55-56; Maggert v. Hanks, 131 F.3d 670, 672 (7th Cir.1997). One commentator has asserted that a male-to-female operation costs an average of $37,000, whereas the average female-to-male operation costs $77,000. Aaron C. McKee, The American Dream —2.5 Kids and a White Picket Fence: The Need for Federal Legislation to Protect the Insurance Rights of Infertile Couples, 41 Washburn L.J. 191 , 198 (2001). Another estimate describes the cost as “easily reaching] $100,000.” Maggert, supra, 131 F.3d at 672 .

Contributing to the much higher cost of female-to-male sex reassignment surgery is the increased technical difficulty of phalloplasty, estimates for which range from $30,000 to $150,000. See Shana Brown, Sex Changes and “Opposite Sex” Marriage: Applying the Full Faith and Credit Clause to Compel Interstate Recognition of Transgendered Persons’ Amended Legal Sex for Marital Purposes, 38 San Diego L. Rev. 1113 , 1127 n. 79 (2001); Patricia A. Cain, Stories From the Gender Garden: Transsexuals and Anti-Discrimination Law, 75 Denv. U.L. Rev. 1321, 1334 n. 59 (1998). The procedure may require several operations.

Estimates of the number of intersexed individuals vary considerably, from 1 per 37,000 people (see Taitz, supra, 13 Am. J.L. and Med at 56) to 1 per 2,000 (see Henner, supra, 11 Ann. Health L. at 195) to as high as 3 per 2,000 (see Dreger, supra, at 42). It seems to be a guess, although Dreger suggests that “the frequency of births in which the child exhibits a condition which today could count as ‘intersexual’ or ‘sexually ambiguous’ is significantly higher than most people outside the medical field (and many inside) assume it is.” Dreger, supra, at 42. In reviewing the medical literature, we have avoided making pronouncements of our own, but have simply recounted some of the assertions and conclusions that appear in that literature — assertions and conclusions which, when presented in the form of testimony in court, have evoked differing responses ⁷¹⁰ from the courts, both in the United States and elsewhere.

Notwithstanding that this remains an evolving field, in which final conclusions as to some aspects may be premature, the current medical thinking does seem to support at least these relevant propositions: (1) that external genitalia are not the sole medically recognized determinant of gender; (2) that the medically recognized determinants of gender may sometimes be either ambiguous or incongruent; (3) that due to mistaken assumptions made by physicians of an infant’s ambiguous external genitalia at or shortly after birth, some people are mislabeled at that time as male or female and thereafter carry an official gender status that is medically incorrect; (4) that at least some of the medically recognized determinants of gender are subject to being altered in such a way as to make them inconsistent with the individual’s officially declared gender and consistent with the opposite gender; and (5) whether or not a person’s psychological gender identity is physiologically based, it has received recognition as one of the determinants of gender and plays a powerful role in the person’s psychic makeup and adaptation. For our purposes, the relevance of these propositions lies in the facts that (1) gender itself is a fact that may be established by medical and other evidence, (2) it may be, or possibly may become, other than what is recorded on the person’s birth certificate, and (3) a person has a deep personal, social, and economic interest in having the official designation of his or her gender match what, in fact, it always was or possibly has become. 7 The issue then becomes the circumstances under which a court may declare one’s gender to be other than what is officially recorded and the criteria to be used in making any such declaration. ⁷¹¹ Jurisdiction of Circuit Court In construing petitioner’s action as one for declaratory judgment, the Court of Special Appeals in effect created a straw man of its own and then, to petitioner’s detriment, knocked it down. It concluded that “[sjince the petition sought a general order changing appellant’s legal sexual identity, such relief must be categorized as a declaratory judgment” and then found that, as no one contested the relief sought by petitioner, there was no justiciable controversy, which is a prerequisite to a declaratory judgment action. The court went on to rule that, because a remedy was not currently available to petitioner under the Declaratory Judgment Act, the Circuit Court had no jurisdiction in the matter.

We agree that, in the circumstances of this case, a declaratory judgment would have been inappropriate, as no one has contested petitioner’s claim that he had successfully transitioned to become a woman and was entitled to be declared as such. Although § 3-403(a) of the Courts and Judicial Proceedings Article gives broad authority to the Circuit Court to “declare rights, status, and other legal relations whether or not further relief is or could be claimed,” § 3-409, which governs the appropriateness of declaratory relief in a civil action not founded specifically on a contract, deed, trust, will, land patent, statute, or administrative regulation, authorizes the court to grant a declaratory judgment if it will terminate the uncertainty or controversy giving rise to the proceeding and (1) an actual controversy exists between contending parties, (2) antagonistic claims are present between the parties which indicate imminent and inevitable litigation, or (3) a party asserts a legal relation, status, right, or privilege that is