Doe v. McConn

• Citation: 489 F. Supp. 76
• Decision Date: 03 April 1980
• Docket Number: H-79-922.,Civ. A. No. H-77-42
• Parties: Jane DOE I et al., Plaintiffs, v. James McCONN et al., Defendants. M. B., Plaintiff, v. The CITY OF HOUSTON et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

489 F. Supp. 76

Jane DOE I et al., Plaintiffs, v. James McCONN et al., Defendants.

M. B., Plaintiff, v. The CITY OF HOUSTON et al., Defendants.

Civ. A. Nos. H-77-42, H-79-922.

United States District Court, S. D. Texas, Houston Division.

April 3, 1980.

J. Patrick Wiseman, Pape & Mallett, Houston, Tex., for plaintiffs.

Terrance Fiddes, Asst. City Atty., Houston, Tex., for defendants.

STATEMENT OF CASE

NORMAN W. BLACK, District Judge.

These are consolidated actions wherein Plaintiffs allege that § 28-42.4 of the Code of Ordinances of the City of Houston constitutes a deprivation, under color of state law, of rights, privileges, and immunities secured to them by the First, Fourth, Fifth, Eighth, Ninth, Tenth and Fourteenth Amendments to the Constitution and the laws of the United States. They seek declaratory and injunctive relief. The case is bifurcated to the extent that the Court will not consider the issue of damages at this time. The Jane Doe Plaintiffs and Plaintiff M. B., in various stages of sexual transition, are suing under fictitious names to insulate themselves from possible harassment, to protect their privacy, and to protect themselves from prosecution resulting from this action.

FINDINGS OF FACT

Plaintiffs are all adult citizens of the United States of full age and capacity and residents of Houston, Texas. Plaintiffs JANE DOE I, JANE DOE II, JANE DOE III, JANE DOE IV, JANE DOE V, JANE DOE VI, JANE DOE VII and M. B. (hereinafter referred to as the "transsexual Plaintiffs") are fully diagnosed transsexuals who, as of the commencement of this cause of action, had not undergone sexual reassignment surgery. JANE DOE III, JANE DOE V and JANE DOE VII have undergone surgery since the instigation of this cause.

Plaintiff MAXWELL is the treating physician for certain of the Plaintiff Transsexuals.

The Defendants are past and present City of Houston officials charged with the responsibility of promulgating and/or enforcing the Ordinance in question. The City of Houston is also a Defendant.

All of the Defendants' actions complained of in this cause were taken under color of state law.

Transsexualism is a rare syndrome of gender identity disturbance which appears to occur more frequently in male than in female subjects. The cause of this syndrome is unknown. Treatment of this condition in adults by psychotherapy alone has been futile. Administration of hormones of the opposite sex followed by sex-conversion operations has resulted in better emotional and social adjustment by the transsexual individual in the majority of cases. Prior to undergoing surgery, the patient is required to be seen by a team of specialists in physical and psychological medicine over an extensive period of time, generally one to two years.

This psychological evaluation includes intensive interviews and testing, interviews with the patient's family where possible, and a course of supportive therapy. Physical testing includes: general examinations, 17 Ketosteroids, other endocrinological studies, chromosome analysis, and, in some instances, semen analysis. The patient is treated with heterotypic sex hormones and is required to live, dress, and become rehabilitated in the cross-gender role.

There are gender identity syndromes which have a resemblance to transsexualism, but which are nevertheless not to be confused with this condition. Prior to surgery great care must be taken in diagnosis, since the radical physical alteration which has proved to be the one effective therapy for the transsexual might represent an irreparable and tragic mistake for the individual with a related but different disorder. There is a resemblance between homosexuality, transvestism, and transsexualism, with observable common areas of concern, but essential distinctions become apparent to the trained psychiatrist.

Most transvestites cross-dress, or employ the imagery of cross-dressing, in order to achieve sexual satisfaction. The effeminate homosexual occasionally may cross-dress, but he does not share the transvestite's compulsion to do so. Although he plays the feminine role with his male partner, he has no compelling desire to be a woman.

The transsexual begins to cross-dress usually before puberty. Later, he may experience great conflict about this, and apply himself vigorously to the masculine role, perhaps even going so far as to marry. Eventually, however, his gender identity reveals itself as so overpoweringly female that nothing less than the alteration of his masculine body traits, as well as abandonment of the masculine clothes and role, can afford him relief. Homosexual relations are usually repugnant to him.

Care also must be taken to distinguish borderline schizophrenia, with temporary illusions and obsessions of transsexualism, from true transsexualism.

The criteria for diagnosis are by no means absolute, and research is proceeding with the purpose of further refining the distinctions between the various gender identity syndromes. To date, it is generally agreed that the common requirement of a pre-operative period of six to twenty-four months of living and working in the gender role of choice provides the best index of judgment for eliminating non-transsexuals.

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.

Yet, some sort of treatment is urgently indicated, for in many instances his suffering is so intense that suicide and self-mutilation are not uncommon.

Although the causes of the transsexual condition are not yet understood, extensive research in recent years has indicated some possible biological and psychological factors which might render one individual more vulnerable than another to develop in this way. Experiments with animals suggest that the altering of hormone balances, during certain limited, critical pre-natal periods, will affect those areas of the brain that regulate masculine and feminine behavior. Other medications administered to the pregnant mother (barbiturates, for example) may also have an effect on the development of the unborn child, as may certain intrauterine viral infections.

Transsexual symptoms need not develop under such circumstances, and usually do not. Predetermining circumstances may simply make the individual more susceptible to the development of transsexualism. The postnatal determinants of gender identity—the child's relationships with those who form his early social environment — may then supply the deciding factor.

Since some patients presenting transsexual symptoms and desiring surgery may change their mind, a period of hormone therapy and of living in the desired gender role is strongly indicated, so that those whose motives are confused or weak may discover this for themselves through direct experience. The psychiatrist's function will be to assist the patient to explore and clarify his motivation and to find another resolution of his conflicts.

Similar exploration will, of course, be helpful for the transsexual for whom surgery is indicated. In addition, he will require support in making necessary adjustments to his new social role, and in coping with his family's reactions to his decision. Information or referrals may be given to assist the transsexual in establishing a new identity through legal procedures and documents.

These transsexual Plaintiffs have each sought treatment and procedures required of transsexuals who wish to undergo sexual reassignment surgery. Said process is under the immediate care and supervision of medical doctors including psychiatrists such as Plaintiff MAXWELL. Each transsexual, as a part of the process, undergoes hormonal treatments and/or implants and psychological counselling for varying periods of time preceding actual surgery for sexual reassignment.

As noted supra, an integral part of the presurgical process requires that a transsexual wear the clothing of the gender to which reassignment is sought throughout the pre-operative stage. Said procedures are medically and psychologically necessary for the true integration of the body and mind throughout the transition period of the developing gender. In fact, cross-dressing is mandatory, as surgery will generally not be performed unless cross-dressing has...