Carton, Crahay and Handler. The opinion of the court was delivered by Handler, J.A.D.
This appeal presents the portentous problem of how to tell the sex of a person for marital purposes. Involved is a post-operative transsexual, born a male but now claiming to be a female.
The case started inauspiciously enough when plaintiff M.T. filed a simple complaint in the Juvenile and Domestic Relations Court for support and maintenance. The legal issue sharpened dramatically when defendant J.T.
interposed the defense that M.T. was a male and that their marriage was void. Following a hearing the trial judge determined that plaintiff was a female and that defendant was her husband, and there being no fraud, ordered defendant to pay plaintiff $50-a-week support. Notice of appeal was then filed by defendant.
A careful recapitulation of the testimony is appropriate. M.T. testified that she was born a male. While she knew that she had male sexual organs she did not know whether she also had female organs. As a youngster she did not participate in sports and at an early age became very interested in boys. At the age of 14 she began dressing in a feminine manner and later began dating men. She had no real adjustment to make because throughout her life she had always felt that she was a female.
Plaintiff first met defendant in 1964 and told him about her feelings about being a woman. Sometime after that she began to live with defendant. In 1970 she started to go to Dr. Charles L. Ihlenfeld to discuss the possibility of having an operation so that she could "be physically a woman." In 1971, upon the doctor's advice, she went to a surgeon who agreed to operate. In May of that year she underwent surgery for the removal of male sex organs and construction of a vagina. Defendant paid for the operation. Plaintiff then applied to the State of New York to have her birth certificate changed.
On August 11, 1972, over a year after the operation, plaintiff and defendant went through a ceremonial marriage in New York State and then moved to Hackensack. They lived as husband and wife and had intercourse. Defendant supported plaintiff for over two years when, in October 1974, he left their home. He has not supported plaintiff since.
Dr. Ihlenfeld, plaintiff's medical doctor with a specialty in gender identity, was accepted as an expert in the field of medicine and transsexualism. A transsexual, in the opinion of this expert, was "a person who discovers sometime, usually
very early in life, that there is a great discrepancy between the physical genital anatomy and the person's sense of self-identity as a male or as a female. * * * [T]he transsexual is one who has a conflict between physical anatomy and psychological identity or psychological sex." Usually sexual anatomy was "normal" but for some reason transsexuals did not see themselves as members of the sex their anatomy seemed to indicate. According to Dr. Ihlenfeld, there are different theories to explain the origin of that conflict. There was, however, "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." He defined gender identity as "a sense, a total sense of self as being masculine or female * * *"; it "pervades one's entire concept of one's place in life, of one's place in society and in point of fact the actual facts of the anatomy are really secondary * * *."
The doctor first saw and examined plaintiff in September 1970 and took a medical history from her. She told him that she had always felt like a woman and was living like a woman. She wanted sex reassignment surgery as well as treatments and hormones so that she could end the conflict she was feeling, "confronted with a male body," in order to live her life completely as the woman she thought herself to be. Dr. Ihlenfeld diagnosed her as a transsexual. He knew of no way to alter her sense of her own feminine gender identity in order to agree with her male body, and the only treatment available to her was to alter the body to conform with her sense of psyche gender identity. That regimen consisted of hormone treatment and sex reassignment surgery. Dr. Ihlenfeld recommended such an operation and treated plaintiff both before and after it.
The examination of plaintiff before the operation showed that she had a penis, scrotum and testicles. After the operation she did not have those organs but had a vagina and labia which were "adequate for sexual intercourse" and could function as any female vagina, that is, for "traditional penile/vaginal intercourse." The "artificial vagina" constructed
by such surgery was a cavity, the walls of which are lined initially by the skin of the penis, often later taking on the characteristics of normal vaginal mucosa; the vagina, though at a somewhat different angle, was not really different from a natural vagina in size, capacity and "the feeling of the walls around it." Plaintiff had no uterus or cervix, but her vagina had a "good cosmetic appearance" and was "the same as a normal female vagina after a hysterectomy." Dr. Ihlenfeld had seen plaintiff since the operation and she never complained to him that she had difficulty having intercourse. So far as he knew, no one had tested plaintiff to find out what chromosomes she had. He knew that plaintiff had had silicone injections in her breasts; he had treated her continuously with female hormones to demasculinize her body and to feminize ...