Trial in absentia is a criminal proceeding in a court of law
in which the person who is subject to it is not physically present at
those proceedings. In absentia is Latin for "in (the) absence". Its meaning varies by jurisdiction and legal system.
In common law
legal systems, the phrase is more than a spatial description. In these
systems, it suggests a recognition of a violation of a defendant's right
to be present in court proceedings in a criminal trial. Conviction in a trial in which a defendant is not present to answer the charges is held to be a violation of natural justice. Specifically, it violates the second principle of natural justice, audi alteram partem (hear the other party).
In some civil law legal systems, such as that of Italy, absentia is a recognized and accepted defensive strategy. Such trials may require the presence of the defendant's lawyer, depending on the country.
Europe
Signatories to the European Convention on Human Rights
Trials in absentia are banned in some member states of the EU and
permitted in others, posing significant problems for the fluidity of
mutual recognition of these judicial judgments. The executing member
state possesses some degree of discretion and is not obliged to execute a
European Arrest Warrant if the country that is making the request has already tried that person in absentia.
Conditions under which trials in absentia must be recognised
include: if the person can be said to have been aware of the trial; if a
counsellor took their place at the trial; if they do not request an
appeal in due time; and if they are to be offered an appeal.
The framework decision on the European Arrest Warrant provides for the legal guarantees relevant to trials in absentia. While the framework decision explicitly refers to Article 6 of the European Convention on Human Rights,
its purpose is not to harmonise national laws on trials in absentia but
to provide terms for the non-recognition of a European Arrest Warrant
and other cooperative tools. The framework decision provides detailed
conditions and requirements on which a trial in absentia can be
considered compatible with Article 6, the right to a fair trial.
According to Pieter Cleppe of the think-tank Open Europe,
in parts of Europe, in absentia trials essentially give defendants the
ability to appeal twice—asking for a retrial at which they would be
present and then potentially appealing the second verdict.
There are some guarantees in the
legal system that make sure that it's fair, that the rights of the
defense are not being violated, while still making sure that justice is
being done. In absentia judgments are common ... you can criticize that,
but it's quite common.
The Council of Europe has made commentary on judgments that are made in absentia. The Committee of Ministers,
in Resolution (75) 11, of 21 May 1975, stated that an individual must
first be effectively served with a summons prior to being tried. In
this sense, the ministers are emphasizing that it is not the presence of
the accused at the hearing that is of importance, rather the focus
should be on whether or not the individual was informed of the trial in
time.
In a 1985 judgement in the case Colozza v Italy, the European Court of Human Rights
stressed that a person charged with a criminal offence is entitled to
take part in the hearings. This entitlement is based on the right to a
fair trial and the right to a defence, both of which are required by the
convention (articles 6(1) and 6(3)). Furthermore, the court stressed
that a person convicted in absentia shall be entitled to a fresh trial
once he becomes aware of the proceedings:
When domestic law permits a trial
to be held notwithstanding the absence of a person "charged with a
criminal offence" who is in Mr. Colozza’s position, that person should,
once he becomes aware of the proceedings, be able to obtain, from a
court which has heard him, a fresh determination of the merits of the
charge.
The Human Rights Committee (HRC) examined Monguya Mbenge v. Zaire
(1990) in which the applicant was sentenced to death while exiled in
Belgium and was only able to learn of the case against him through the
media. Due to these circumstances, the committee found that a number of
the applicant's procedural rights had been violated, especially in
consideration of the fact that the Zairean authorities had hardly
attempted to contact the applicant despite possible knowledge of the
applicant's address. This highly impeded the applicant's capacity to
prepare any form of defense. Failed evidence to support the case that a
court had tried to inform the accused of proceedings against him/her
provides the committee with the opinion that the right to be tried in
one's presence was violated.
In general, the Czech Criminal Procedural Code requires the
presence of the defendant in any criminal proceedings. The code
recognizes the following exemptions from this rule, when criminal
proceedings may be conducted without the presence of the person charged:
Where a defendant has died (involving the continuation or reopening of proceedings in order to clear a deceased defendant's name).
Where a defendant is unknown:
This may arise before charges against a person are brought,
normally in respect of pre-trial proceedings. For example, if police
conclude that a crime has been committed and that action needs to be
taken to identify the perpetrator, such as the interrogation of a
witness or an identity parade, such an action is taken in the presence
of a judge because the rights of the (still unidentified) criminal
suspect cannot otherwise be adequately protected during the evidence
gathering. Normally, a defendant enjoys the right to be present or
represented by an attorney during the interrogation or identity parade.
But where the defendant is not yet identified, in order to secure full
legality and impartiality, a judge is present. This ensures the
admissibility of the resulting evidence will not be successfully
challenged during the trial. Typically, this situation might involve a
dying witness, not expected to be available later for cross-examination
at a trial by or on behalf of the defendant.
When confiscating property involved in criminal case from an unknown
owner, the property confiscated will remain the property of the unknown
owner pending a trial and a court decision to transfer the property
confiscated to the state. An example could arise where the property to
be confiscated might endanger people, property or society, or might be
used for commission of a felony. Typically, this concerns prohibited
weapons or ammunition, explosives, narcotics, poisons, etc., seized by
the police without, at the time of the seizure, knowing the owner's
identity.
Where a defendant is known:
Where an accused person is evading proceedings by being either abroad or in hiding, the proceedings may be conducted in absentia.
The proceedings are then officially started by the formal delivery of
charges to the defendant's attorney. If the defendant does not have an
attorney, the court will appoint one.
An attorney must in these circumstances be appointed throughout the
entire proceedings, and will have all the defendant's rights.
All documents intended for the defendant will be delivered to the
attorney and the court must take "appropriate measures" to announce the
trial publicly.
Where the absent defendant subsequently appears during the trial, the
proceedings shall continue in the normal way. The defendant may request
that any evidence that had been presented in his absence be presented
again; where this is not possible, he will be shown records of it and
may comment on it. Where the case has ended with an enforceable
judgment, the convicted party may request a fresh trial within eight
days of the delivery of the judgment to him. The fresh trial may not
lead to an outcome that would be less favorable to the defendant than
the outcome of the previous in absentia trial.
Apart from the aforementioned cases of in absentia proceedings in the
narrow sense, the defendant may also be absent during the trial under
following circumstances:
When the defendant fails to appear for the trial: only if
the indictment was duly delivered and
the defendant was duly summoned for the trial (i.e. is not in hiding) and
the defendant has already been formally questioned during pre-trial proceedings (whether or not they elected to remain silent) and
the defendant has been alerted about their right to study the case file and to put forward motions for investigation and
the court determines that, despite the defendant's absence from the
trial, the case can be reliably decided and the purposes of the trial
achieved.
When the defendant requests that the trial takes place in their absence: if the defendant is being held on remand,
a simple failure to appear is not permitted: the defendant must
formally request that the proceedings to take place in their absence.
When the defendant is disrupting the proceedings: trial in
absentia is possible only on basis of a formal ruling of, and subject to
previous warning by, the court, and only for the necessary period of
time. Immediately after allowing the defendant back into the courtroom,
the presiding judge must convey the essential content of the proceedings
taken in the defendant's absence, so as allow them to comment on it.
Italy
Italy is one of several countries in Europe that allow trials in absentia, and they are a regular occurrence.
In Maleki v Italy (1997), the United Nations Human Rights Committee held that the Italian policy on trials in absentia was a breach of the right to fair trial under Article 14 of the International Covenant on Civil and Political Rights.
Italy argued that where a defendant in absentia is represented by
court-appointed counsel and where he or she has an opportunity to be
re-tried, the right to a fair trial will not be violated. The committee
disagreed, describing Italy's position as:
clearly insufficient to lift the
burden placed on the State party if it is to justify trying an accused
in absentia. It was incumbent on the court that tried the case to verify
that [Maleki] had been informed of the pending case before proceeding
to hold the trial in absentia. Failing evidence that the court did so,
the [HRC] is of the opinion that [Maleki's] right to be tried in his
presence was violated.
In 2009, a former CIA
station chief and two other Americans were tried and convicted in
absentia by a Milan appeals court for the abduction of Egyptian terror
suspect Osama Hassan Mustafa Nasr. The decision meant that 26 Americans
tried in absentia for the abduction were found guilty.
The trial of American Amanda Knox for the 2007 murder of British student Meredith Kercher highlighted the issue of Italy's willingness to try defendants in absentia. In 2013 Italy's highest court, the Court of Cassation,
decided to annul Knox's appeal (alongside the co-accused, Italian
Raffaele Sollecito), thus overturning their previous acquittals,
declaring the acquittal as "full of deficiencies, contradictions and
illogical conclusions".
As Amanda Knox remained at her home in the United States, her
appeal was heard in absentia, in Florence, Italy. On 30 January 2014 her
guilty verdict was re-instated for the murder of Kercher and her
sentence set at 28 years and six months imprisonment.
In the case of Goddi v. Italy, the European Court of Human Rights
held that the failure of Italy's judiciary to inform the officially
appointed lawyer of the applicant in regards to the correct date of the
trial hearing deprived the applicant of an effective defence, and
therefore Article 6 (3) (c) had been violated.
Certain case law supports the notion that in some circumstances
representation by counsel at the trial will not be enough to make an in
absentia conviction conclusive enough for the establishment of probable cause. In Gallina v Fraser,
the appellant Vincenzo Gallina was convicted in absentia according to
established Italian procedure for two robberies. The verdict in Gallina
has been since interpreted to suggest that the presence of legal counsel
alone is, in certain cases, insufficient to give an in absentia
conviction that establishes probable cause.
United States
For
more than 100 years, courts in the United States have held that the
United States Constitution protects a criminal defendant's right to
appear in person at their trial, as a matter of due process, under the Fifth, Sixth, and Fourteenth Amendments.
the legislature has deemed it
essential to the protection of one whose life or liberty is involved in a
prosecution for felony, that he shall be personally present at the
trial, that is, at every stage of the trial when his substantial rights
may be affected by the proceedings against him. If he be deprived of his
life or liberty without being so present, such deprivation would be
without that due process of law required by the Constitution.
— Hopt v. Utah 110 US 574, 28 L Ed 262, 4 S Ct 202 (1884).
A similar holding was announced by the Arizona Court of Appeals in 2004 (based on Arizona Rules of Criminal Procedure):
A voluntary waiver of the right to
be present requires true freedom of choice. A trial court may infer that
a defendant's absence from trial is voluntary and constitutes a waiver
if a defendant had personal knowledge of the time of the proceeding, the
right to be present, and had received a warning that the proceeding
would take place in their absence if they failed to appear. The courts
indulge every reasonable presumption against the waiver of fundamental
constitutional rights.
Rule 43 provides that a defendant shall be present
at the arraignment,
at the time of the plea,
at every stage of the trial including the impaneling of the jury and the return of the verdict and
at the imposition of sentence.
However, the following exceptions are included in the Rule:
the defendant waives his or her right to be present if he or she voluntarily leaves the trial after it has commenced,
if he or she persists in disruptive conduct after being warned that
such conduct will cause him or her to be removed from the courtroom,
a corporation need not be present, but may be represented by counsel,
in prosecutions for misdemeanors, the court may permit arraignment,
plea, trial, and imposition of sentence in the defendant's absence with
his or her written consent, and
the defendant need not be present at a conference or argument upon a
question of law or at a reduction of sentence under Rule 35 of the
Federal Rules of Criminal Procedure.
Indeed, several U.S. Supreme Court decisions have recognized that a
defendant may forfeit the right to be present at trial through disruptive behavior, or through his or her voluntary absence after trial has begun.
In 1993, the Supreme Court revisited Rule 43 in the case of Crosby v. United States. The Court unanimously held, in an opinion written by Justice Harry Blackmun, that Rule 43 does not permit the trial in absentia of a defendant who is absent at the beginning of trial.
This case requires us to decide
whether Federal Rule of Criminal Procedure 43 permits the trial in
absentia of a defendant who absconds prior to trial and is absent at its
beginning. We hold that it does not. ...The Rule declares explicitly:
"The defendant shall be present...at every stage of the trial...except as otherwise provided by this rule"
(emphasis added). The list of situations in which the trial may proceed
without the defendant is marked as exclusive not by the "expression of
one" circumstance, but rather by the express use of a limiting phrase.
In that respect the language and structure of the Rule could not be more
clear.
However, in Crosby, the Rehnquist Court reiterated an 80-year-old precedent that
Where the offense is not capital and the accused is not in custody, ...if, after the trial has begun in his presence,
he voluntarily absents himself, this does not nullify what has been
done or prevent the completion of the trial, but, on the contrary,
operates as a waiver of his right to be present and leaves the court
free to proceed with the trial in like manner and with like effect as if
he were present." Diaz v. United States, 223 U.S. at 455 [1912] (emphasis added).
Ian Bailey, a British man convicted in absentia by a French court of the murder of a French woman in Ireland.
Adem Jashari, leader of the Kosovo Liberation Army, was convicted in July 1997 in absentia by a Yugoslav court after several unsuccessful attempts to capture or kill him.
Krim Belkacem, AlgerianBerber resistance fighter and politician. (Assassinated on October 18, 1970, in West Germany.)
Heinrich Boere,
a Dutch or German convicted by a Dutch court in 1949 of murders on the
part of the World War II German occupation authorities in the
Netherlands. German courts refused to extradite Boere to the Netherlands
due to his possibly having German citizenship.
Martin Bormann,
Nazi official and Hitler's private secretary, convicted of war crimes
and crimes against humanity and sentenced to death by hanging at the Nuremberg war crimes trials. (Disappeared on May 2, 1945, his remains were uncovered in late 1972 in West Berlin, and conclusively identified as those of Bormann in 1998.)
Dési Bouterse,
Suriname's former military leader, sentenced to 16 years in prison and
fined $2.18 million in the Netherlands for cocaine trafficking.
Ahmed Chalabi, former Iraqi oil minister, convicted in Jordan for bank fraud.
Bettino Craxi, Italian former prime minister, sentenced in absentia to 27 years in jail in Italy, who previously fled to Hammamet in Tunisia in 1994, and remained a fugitive there, protected by Ben Ali's regime.
Léon Degrelle, Belgian Nazi collaborator sentenced to death by firing squad while he lived in Spain.
Ryszard Kukliński,
a Polish colonel, Cold War spy and communist whistleblower, sentenced
in absentia to death as a traitor in 1984 by a communist court in the Polish People's Republic. He was finally acquitted in 1997. It was said his activity was in a State of Necessity.
Ira Einhorn, murderer and anti-war activist, who challenged his conviction in Pennsylvania. (Escaped to Europe, but was extradited from France back to the US on July 20, 2001.)
John Factor, a British-born American gangster and con man, charged with securities fraud in England and tried and sentenced to 24 years in prison in absentia after fleeing back to the United States.
Charles de Gaulle, sentenced first to four years in prison and later to death in 1940 for treason against the Vichy regime.
Oleg Gordievsky, sentenced to death by the Soviet Union for treason after fleeing to the United Kingdom in 1985.
Boļeslavs Maikovskis, Latvian Nazi collaborator sentenced to death by a Soviet court in 1965 (while living in the United States).
Sholam Weiss,
sentenced to the longest federal prison term in United States history
(835 years) for fraud, money laundering and other crimes, jumped bail
mid-trial. (Extradited by Austria on June 20, 2002.)
Arkady Shevchenko, high ranking SVR official of the USSR, sentenced to death in Moscow in absentia after defecting to the United States.
Irakli Okruashvili, Defense Minister of Georgia from 2004 to 2006 and a personal friend of Georgian president Mikheil Saakashvili.
Okruashvili returned to prominence when he formed an opposition party
to the Georgian government and accused it of corruption and plotting
assassinations. He was arrested days later on charges of extortion,
bribe taking, and abuse of power, and released on $6 million bail
pending trial. He flew to Europe, supposedly to seek medical treatment,
but tried to find political asylum. He was denied asylum in Germany,
but received it in France, which refused an extradition request from
Georgia. He was tried in absentia, found guilty, and sentenced to 11
years imprisonment.
In 2011, Eugene Koffi Adoboli was sentenced to five years in jail in absentia stemming from an embezzlement scandal while he was Prime Minister of Togo.
Anwar al-Awlaki, radical Islamic cleric assassinated by drone by the United States in Yemen in 2011, was tried in abseentia by the Yemeni government.
Alexander Poteyev, ex-colonel of the Russian intelligence agency SVR,
was sentenced in absentia to 25 years of imprisonment on the charge of
high treason by Moscow court in 2011. His whereabouts are unknown;
presumably he lives in the United States under protection of the US
government.
Kent Kristensen, Danish businessman was sentenced in Romania in
absentia to seven years for not paying an official in a building
project. He was arrested in Spain in 2011 when he tried to save his
child who was abducted by her mother. He is serving his time at the
Giurgiu maximum security prison. In March 2012 it was reported that the
Romania denied him his medication.
Muhammad Zaidan (aka. Abu Abbas), leader of the Palestine Liberation Front, was charged in Italy in absentia to five terms of life imprisonment for his role as mastermind in the 1985 hijacking of the Italian cruise ship MS Achille Lauro, which resulted in the murder of 69-year-old American Jewish passenger Leon Klinghoffer. He was captured by American forces on April 14, 2003, during the Iraq War and died on March 8, 2004, of natural causes, while in American custody.
Khalid Latif,
a former Pakistani cricketer, was convicted in absentia to 12 years
imprisonment in September 2023 for attempting to provoke the murder of
Dutch politician Geert Wilders, incitement, and threats.
The Sixth Amendment guarantees criminal defendants nine different rights, including the right to a speedy and public trial by an impartial jury
consisting of jurors from the state and district in which the crime was
alleged to have been committed. Under the impartial jury requirement,
jurors must be unbiased, and the jury must consist of a representative
cross-section of the community. The right to a jury applies only to
offenses in which the penalty is imprisonment for longer than six
months. In Barker v. Wingo, the Supreme Court articulated a balancing test
to determine whether a defendant's right to a speedy trial had been
violated. It has additionally held that the requirement of a public
trial is not absolute and that both the government and the defendant can
in some cases request a closed trial.
The Sixth Amendment requires that criminal defendants be given notice of the nature and cause of accusations against them. The amendment's Confrontation Clause gives criminal defendants the right to confront and cross-examine witnesses, while the Compulsory Process Clause gives criminal defendants the right to call their own witnesses and, in some cases, compel witnesses to testify. The Assistance of Counsel Clause grants criminal defendants the right to be assisted by counsel. In Gideon v. Wainwright (1963) and subsequent cases, the Supreme Court held that a public defender
must be provided to criminal defendants unable to afford an attorney in
all trials where the defendant faces the possibility of imprisonment.
The Supreme Court has incorporated (protected at the state level) all
Sixth Amendment protections except one: having a jury trial in the same
state and district that the crime was committed.
Text
In
all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and district
wherein the crime shall have been committed, which district shall have
been previously ascertained by law, and to be informed of the nature and
cause of the accusation; to be confronted with the witnesses against
him; to have compulsory process for obtaining witnesses in his favor,
and to have the Assistance of Counsel for his defence.
Criminal defendants have the right to a speedy trial. In Barker v. Wingo, 407U.S.514 (1972), the Supreme Court laid down a four-part case-by-case balancing test for determining whether the defendant's speedy trial right has been violated. The four factors are:
Length of delay. The Court did not explicitly rule that
any absolute time limit applies. However, it gave the example that the
delay for "ordinary street crime is considerably less than for a
serious, complex conspiracy charge."
Reason for the delay. The prosecution may not excessively
delay the trial for its own advantage, but a trial may be delayed to
secure the presence of an absent witness or other practical
considerations (e.g., change of venue).
Time and manner in which the defendant has asserted his right. If a defendant agrees to the delay when it works to his own benefit, he cannot later claim he has been unduly delayed.
Degree of prejudice to the defendant which the delay has caused.
In Strunk v. United States, 412U.S.434
(1973), the Supreme Court ruled that if the reviewing court finds that a
defendant's right to a speedy trial was violated, then the indictment
must be dismissed and any conviction overturned. The Court held that,
since the delayed trial is the state action which violates the
defendant's rights, no other remedy would be appropriate. Thus, a
reversal or dismissal of a criminal case on speedy trial grounds means
no further prosecution for the alleged offense can take place.
In Sheppard v. Maxwell, 384U.S.333
(1966), the Supreme Court ruled that the right to a public trial is not
absolute. In cases where excess publicity would serve to undermine the
defendant's right to due process, limitations can be put on public
access to the proceedings. According to Press-Enterprise Co. v. Superior Court, 478U.S.1
(1986), trials can be closed at the behest of the government if there
is "an overriding interest based on findings that closure is essential
to preserve higher values and is narrowly tailored to serve that
interest". The accused may also request a closure of the trial; though,
it must be demonstrated that "first, there is a substantial probability
that the defendant's right to a fair trial will be prejudiced by
publicity that closure would prevent, and second, reasonable
alternatives to closure cannot adequately protect the defendant's right
to a fair trial."
The right to a jury has always depended on the nature of the offense
with which the defendant is charged. Petty offenses—those punishable by
imprisonment for no more than six months—are not covered by the jury
requirement.
Even where multiple petty offenses are concerned, the total time of
imprisonment possibly exceeding six months, the right to a jury trial
does not exist. Also, in the United States, except for serious offenses (such as murder), minors are usually tried in a juvenile court, which lessens the sentence allowed, but forfeits the right to a jury.
Originally, the Supreme Court held that the Sixth Amendment right
to a jury trial indicated a right to "a trial by jury as understood and
applied at common law, and includes all the essential elements as they were recognized in this country and England when the Constitution was adopted."
Therefore, it was held that federal criminal juries had to be composed
of twelve persons and that verdicts had to be unanimous, as was
customary in England.
When, under the Fourteenth Amendment,
the Supreme Court extended the right to a trial by jury to defendants
in state courts, it re-examined some of the standards. It has been held
that twelve came to be the number of jurors by "historical accident",
and that a jury of six would be sufficient, but anything less would deprive the defendant of a right to trial by jury. In Ramos v. Louisiana (2020), the Court ruled that the Sixth Amendment mandates unanimity in all federal and state criminal jury trials.
Impartiality
The
Sixth Amendment requires juries to be impartial. Impartiality has been
interpreted as requiring individual jurors to be unbiased. At voir dire,
each side may question potential jurors to determine any bias, and
challenge them if the same is found; the court determines the validity
of these challenges for cause. Defendants may not challenge a conviction
because a challenge for cause was denied incorrectly if they had the
opportunity to use peremptory challenges.
In Peña-Rodriguez v. Colorado
(2017), the Supreme Court ruled that the Sixth Amendment requires a
court in a criminal trial to investigate whether a jury's guilty verdict
was based on racial bias. For a guilty verdict to be set aside based on
the racial bias of a juror, the defendant must prove that the racial
bias "was a significant motivating factor in the juror's vote to
convict".
Venire of juries
Another
factor in determining the impartiality of the jury is the nature of the
panel, or venire, from which the jurors are selected. Venires must
represent a fair cross-section of the community; the defendant might
establish that the requirement was violated by showing that the
allegedly excluded group is a "distinctive" one in the community, that
the representation of such a group in venires is unreasonable and unfair
in regard to the number of persons belonging to such a group, and that
the under-representation is caused by a systematic exclusion in the
selection process. Thus, in Taylor v. Louisiana, 419U.S.522
(1975), the Supreme Court invalidated a state law that exempted women
who had not made a declaration of willingness to serve from jury
service, while not doing the same for men.
Sentencing
In Apprendi v. New Jersey, 530U.S.466 (2000), and Blakely v. Washington, 542U.S.296 (2004), the Supreme Court
ruled that a criminal defendant has a right to a jury trial not only on
the question of guilt or innocence, but also regarding any fact used to
increase the defendant's sentence beyond the maximum otherwise allowed
by statutes or sentencing guidelines. In Alleyne v. United States, 570U.S.99 (2013), the Court expanded on Apprendi and Blakely
by ruling that a defendant's right to a jury applies to any fact that
would increase a defendant's sentence beyond the minimum otherwise
required by statute. In United States v. Haymond, 588 U.S. ___ (2019), the Court decided a jury is required if a federal supervised release revocation would carry a mandatory minimum prison sentence.
Article III, Section 2
of the Constitution requires defendants be tried by juries and in the
state in which the crime was committed. The Sixth Amendment requires the
jury to be selected from judicial districts ascertained by statute. In Beavers v. Henkel, 194U.S.73
(1904), the Supreme Court ruled that the place where the offense is
charged to have occurred determines a trial's location. Where multiple
districts are alleged to have been locations of the crime, any of them
may be chosen for the trial. In cases of offenses not committed in any
state (for example, offenses committed at sea), the place of trial may
be determined by the Congress. Unlike other Sixth Amendment guarantees,
the Court has not incorporated the vicinage right.
A criminal defendant has the right to be informed of the nature and cause of the accusation against them. Therefore, an indictment must allege all the ingredients of the crime to such a degree of precision that it would allow the accused to assert double jeopardy if the same charges are brought up in subsequent prosecution. The Supreme Court held in United States v. Carll, 105U.S.611 (1881), that "in an indictment...
it is not sufficient to set forth the offense in the words of the
statute, unless those words of themselves fully, directly, and
expressly, without any uncertainty or ambiguity, set forth all the
elements necessary to constitute the offense intended to be punished."
Vague wording, even if taken directly from a statute, does not suffice.
However, the government is not required to hand over written copies of
the indictment free of charge.
The Confrontation Clause relates to the common law rule preventing the admission of hearsay,
that is to say, testimony by one witness as to the statements and
observations of another person to prove that the statement or
observation was true. The rationale was that the defendant had no
opportunity to challenge the credibility of and cross-examine the person
making the statements. Certain exceptions to the hearsay rule have been
permitted; for instance, admissions by the defendant are admissible, as
are dying declarations. Nevertheless, in California v. Green, 399U.S.149
(1970), the Supreme Court has held that the hearsay rule is not the
same as the Confrontation Clause. Hearsay is admissible under certain
circumstances. For example, in Bruton v. United States, 391U.S.123
(1968), the Supreme Court ruled that while a defendant's out of court
statements were admissible in proving the defendant's guilt, they were
inadmissible hearsay against another defendant. Hearsay may, in some
circumstances, be admitted though it is not covered by one of the
long-recognized exceptions. For example, prior testimony may sometimes
be admitted if the witness is unavailable. However, in Crawford v. Washington, 541U.S.36
(2004), the Supreme Court increased the scope of the Confrontation
Clause by ruling that "testimonial" out-of-court statements are
inadmissible if the accused did not have the opportunity to
cross-examine that accuser and that accuser is unavailable at trial. In Davis v. Washington547U.S.813
(2006), the Court ruled that "testimonial" refers to any statement that
an objectively reasonable person in the declarant's situation would
believe likely to be used in court. In Melendez-Diaz v. Massachusetts, 557U.S.305 (2009), and Bullcoming v. New Mexico, 564U.S.647 (2011), the Court ruled that admitting a lab chemist's analysis into evidence, without having him testify, violated the Confrontation Clause.[15][16] In Michigan v. Bryant, 562U.S.344
(2011), the Court ruled that the "primary purpose" of a shooting
victim's statement as to who shot him, and the police's reason for
questioning him, each had to be objectively
determined. If the "primary purpose" was for dealing with an "ongoing
emergency", then any such statement was not testimonial and so the
Confrontation Clause would not require the person making that statement
to testify in order for that statement to be admitted into evidence.
The right to confront and cross-examine witnesses also applies to
physical evidence; the prosecution must present physical evidence to the
jury, providing the defense ample opportunity to cross-examine its
validity and meaning. Prosecution generally may not refer to evidence
without first presenting it. In Hemphill v. New York, No. 20-637, 595U.S.
___ (2022), the Court ruled the accused had to be given an opportunity
to cross-examine a witness called to rebut the accused's defense, even
if the trial judge rules that defense to be misleading.
In the late 20th and early 21st century this clause became an issue in the use of the silent witness rule.
The Compulsory Process Clause gives any criminal defendant the right
to call witnesses in his favor. If any such witness refuses to testify,
that witness may be compelled to do so by the court at the request of
the defendant.
However, in some cases the court may refuse to permit a defense witness
to testify. For example, if a defense lawyer fails to notify the
prosecution of the identity of a witness to gain a tactical advantage,
that witness may be precluded from testifying.
A criminal defendant has the right to be assisted by counsel.
In Powell v. Alabama, 287U.S.45
(1932), the Supreme Court ruled that "in a capital case, where the
defendant is unable to employ counsel, and is incapable adequately of
making his own defense because of ignorance, feeble mindedness,
illiteracy, or the like, it is the duty of the court, whether requested
or not, to assign counsel for him." In Johnson v. Zerbst, 304U.S.458
(1938), the Supreme Court ruled that in all federal cases, counsel
would have to be appointed for defendants who were too poor to hire
their own.
In 1961, the Court extended the rule that applied in federal courts to state courts. It held in Hamilton v. Alabama, 368U.S.52
(1961), that counsel had to be provided at no expense to defendants in
capital cases when they so requested, even if there was no "ignorance,
feeble mindedness, illiteracy, or the like". Gideon v. Wainwright, 372U.S.335 (1963), ruled that counsel must be provided to indigent defendants in all felony cases, overruling Betts v. Brady, 316U.S.455
(1942), in which the Court ruled that state courts had to appoint
counsel only when the defendant demonstrated "special circumstances"
requiring the assistance of counsel. Under Argersinger v. Hamlin, 407U.S.25
(1972), counsel must be appointed in any case resulting in a sentence
of actual imprisonment. Regarding sentences not immediately leading to
imprisonment, the Court in Scott v. Illinois, 440U.S.367 (1979), ruled that counsel did not need to be appointed, but in Alabama v. Shelton, 535U.S.654 (2002), the Court held that a suspended sentence that may result in incarceration cannot be imposed if the defendant did not have counsel at trial.
As stated in Brewer v. Williams, 430U.S.387
(1977), the right to counsel "[means] at least that a person is
entitled to the help of a lawyer at or after the time that judicial
proceedings have been initiated against him, whether by formal charge,
preliminary hearing, indictment, information, or arraignment." Brewer
goes on to conclude that once adversary proceedings have begun against a
defendant, he has a right to legal assistance when the government
interrogates him
and that when a defendant is arrested, "arraigned on [an arrest]
warrant before a judge", and "committed by the court to confinement",
"[t]here can be no doubt that judicial proceedings ha[ve] been
initiated."
A criminal defendant may represent himself, unless a court deems the defendant to be incompetent to waive the right to counsel.
In Faretta v. California, 422U.S.806 (1975), the Supreme Court recognized a defendant's right to pro se representation. However, under Godinez v. Moran, 509U.S.389
(1993), a court that believes the defendant is less than fully
competent to represent himself can require that defendant to be assisted
by counsel. In Martinez v. Court of Appeal of California, 528U.S.152 (2000), the Supreme Court ruled the right to pro se representation did not apply to appellate courts. In Indiana v. Edwards,
554 U.S. 164 (2008), the Court ruled that a criminal defendant could be
simultaneously competent to stand trial, but not competent to represent
himself.
In Bounds v. Smith, 430U.S.817
(1977), the Supreme Court held that the constitutional right of
"meaningful access to the courts" can be satisfied by counsel or access
to legal materials. Bounds has been interpreted by several United States courts of appeals to mean a pro se
defendant does not have a constitutional right to access a prison law
library to research his defense when access to the courts has been
provided through appointed counsel.
A transgender person (often shortened to trans) is someone whose gender identity differs from that typically associated with the sex they were assigned at birth. Some transgender people who desire medical assistance to transition from one sex to another identify as transsexual.Transgender, often shortened as trans, is also an umbrella term; in addition to including people whose gender identity is the opposite of their assigned sex (trans men and trans women), it may also include people who are non-binary or genderqueer. Other definitions of transgender also include people who belong to a third gender, or else conceptualize transgender people as a third gender. The term may also include cross-dressers or drag kings and drag queens in some contexts. The term transgender does not have a universally accepted definition, including among researchers.
Being transgender is distinct from sexual orientation, and transgender people may identify as heterosexual (straight), homosexual (gay or lesbian), bisexual, asexual, or otherwise, or may decline to label their sexual orientation. The opposite of transgender is cisgender, which describes persons whose gender identity matches their assigned sex. Accurate statistics on the number of transgender people vary widely, in part due to different definitions of what constitutes being transgender. Some countries, such as Canada, collect census data on transgender people. Generally, fewer than 1% of the worldwide population are transgender, with figures ranging from <0.1% to 0.6%.
Before the mid-20th century various terms were used within and beyond
Western medical and psychological sciences to identify persons and
identities labeled transsexual, and later transgender from mid-century onward. Imported from the German and ultimately modeled after German Transsexualismus (coined in 1923), the English term transsexual has enjoyed international acceptability, though transgender has been increasingly preferred over transsexual. The word transgender acquired its modern umbrella term meaning in the 1990s.
Transgender
Psychiatrist John F. Oliven of Columbia University used the term transgenderism in his 1965 reference work Sexual Hygiene and Pathology, writing that the term which had previously been used, transsexualism, "is misleading; actually, 'transgenderism' is meant, because sexuality is not a major factor in primary transvestism." The term transgender was then popularized with varying definitions by various transgender, transsexual, and transvestite people, including Virginia Prince, who used transgenderal in the December 1969 issue of Transvestia, a national magazine for cross-dressers she founded. By the mid-1970s both trans-gender and trans people were in use as umbrella terms, while transgenderist and transgenderal
were used to refer to people who wanted to live their lives as
cross-gendered individuals without sex reassignment surgery (SRS). By 1976, transgenderist was abbreviated as TG in educational materials.
By 1984, the concept of a "transgender community" had developed, in which transgender was used as an umbrella term. In 1985, Richard Elkins established the "Trans-Gender Archive" at the University of Ulster. By 1992, the International Conference on Transgender Law and Employment Policy defined transgender as an expansive umbrella term including "transsexuals, transgenderists, cross dressers", and anyone transitioning. Leslie Feinberg's pamphlet, "Transgender Liberation: A Movement Whose Time has Come", circulated in 1992, identified transgender as a term to unify all forms of gender nonconformity; in this way transgender has become synonymous with queer. In 1994, gender theorist Susan Stryker defined transgender
as encompassing "all identities or practices that cross over, cut
across, move between, or otherwise queer socially constructed sex/gender
boundaries", including, but not limited to, "transsexuality,
heterosexual transvestism, gay drag, butch lesbianism, and such
non-European identities as the Native American berdache or the Indian Hijra".
Between the mid-1990s and the early 2000s, the primary terms used
under the transgender umbrella were "female to male" (FtM) for men who
transitioned from female to male, and "male to female" (MtF) for women
who transitioned from male to female. These terms have been superseded
by "trans man" and "trans woman", respectively.
This shift in preference from terms highlighting biological sex
("transsexual", "FtM") to terms highlighting gender identity and
expression ("transgender", "trans man") reflects a broader shift in the
understanding of transgender people's sense of self and the increasing
recognition of those who decline medical reassignment as part of the
transgender community.
Transgender can also refer specifically to a person whose gender identity is opposite (rather than different from) the sex the person had or was identified as having at birth.
Transfeminine
is a term for any person, binary or non-binary, who was assigned male
at birth and has a predominantly feminine gender identity or
presentation.
Transmasculine refers to a person assigned female at birth who has a predominantly masculine gender identity or presentation.
Transgendered is a common term in older literature. Many within the transgender community deprecate it on the basis that transgender is an adjective, not a verb. Organizations such as GLAAD and The Guardian also state that transgender should never be used as a noun (e.g., "Max is transgender" or "Max is a transgender man", not "Max is a transgender")."Transgender" is also a noun for the broader topic of transgender identity and experience.
Although the term "transgenderism" was once considered acceptable, it has come to be viewed as offensive, according to GLAAD. In 2020 the International Journal of Transgenderism changed its name to the International Journal of Transgender Health "to reflect a change toward more appropriate and acceptable use of language in our field."
Health-practitioner manuals, professional journalistic style
guides, and LGBT advocacy groups advise the adoption by others of the
name and pronouns identified by the person in question, including
present references to the transgender person's past.
In contrast, people whose sense of personal identity corresponds
to the sex and gender assigned to them at birth – that is, those who are
neither transgender nor non-binary or genderqueer – are called cisgender.
Inspired by Magnus Hirschfeld's 1923 term seelischer Transsexualismus, the term transsexual was introduced to English in 1949 by David Oliver Cauldwell and popularized by Harry Benjamin in 1966, around the same time transgender was coined and began to be popularized. Since the 1990s, transsexual has generally been used to refer to the subset of transgender people
who desire to transition permanently to the gender with which they
identify and who seek medical assistance (for example, sex reassignment
surgery) with this.
Distinctions between the terms transgender and transsexual are commonly based on distinctions between gender and sex.
Transsexuality may be said to deal more with physical aspects of one's
sex, while transgender considerations deal more with one's psychological
gender disposition or predisposition, as well as the related social
expectations that may accompany a given gender role. Many transgender people reject the term transsexual. Christine Jorgensen publicly rejected transsexual in 1979 and instead identified herself in newsprint as trans-gender, saying, "gender doesn't have to do with bed partners, it has to do with identity." Some have objected to the term transsexual on the basis that it describes a condition related to gender identity rather than sexuality. Some transsexual people object to being included in the transgender umbrella.
In his 2007 book Imagining Transgender: An Ethnography of a Category, anthropologist David Valentine asserts that transgender
was coined and used by activists to include many people who do not
necessarily identify with the term and states that people who do not
identify with the term transgender should not be included in the transgender spectrum. Leslie Feinberg likewise asserts that transgender is not a self-identifier (for some people) but a category imposed by observers to understand other people. According to the Transgender Health Program (THP) at Fenway Health
in Boston, there are no universally-accepted definitions, and confusion
is common because terms that were popular at the turn of the 21st
century may have since been deemed offensive. The THP recommends that
clinicians ask clients what terminology they prefer, and avoid the term transsexual unless they are sure that a client is comfortable with it.
Harry Benjamin invented a classification system for transsexuals and transvestites, called the Sex Orientation Scale
(SOS), in which he assigned transsexuals and transvestites to one of
six categories based on their reasons for cross-dressing and the
relative urgency of their need (if any) for sex reassignment surgery. Contemporary views on gender identity and classification differ markedly from Harry Benjamin's original opinions.
Sexual orientation is no longer regarded as a criterion for diagnosis,
or for distinction between transsexuality, transvestism and other forms
of gender-variant behavior and expression. Benjamin's scale was designed
for use with heterosexual trans women, and trans men's identities do
not align with its categories.
Gender, gender identity, and being transgender are distinct concepts from sexual orientation. Sexual orientation is an individual's enduring pattern of attraction, or lack thereof, to others (being straight, lesbian, gay, bisexual, asexual, etc.), whereas gender identity is a person's innate knowledge of their own gender (being a man, woman, non-binary, etc.).
Transgender people can have any orientation, and generally use labels
corresponding to their gender, rather than assigned sex at birth. For
example, trans women who are exclusively attracted to other women
commonly identify as lesbians, and trans men exclusively attracted to
women would identify as straight. Many trans people describe their sexual orientation as queer, in addition to or instead of, other terms.
For much of the 20th century, transgender identity was conflated with homosexuality and transvestism. In earlier academic literature, sexologists used the labels homosexual and heterosexual transsexual to categorize transgender individuals' sexual orientation based on their birth sex. Critics consider these terms "heterosexist", "archaic", and demeaning. Newer literature often uses terms such as attracted to men (androphilic), attracted to women (gynephilic), attracted to both (bisexual), or attracted to neither (asexual) to describe a person's sexual orientation without reference to their gender identity.
Therapists are coming to understand the necessity of using terms with
respect to their clients' gender identities and preferences.
The 2015 U.S. Transgender Survey reported that of the 27,715 transgender and non-binary respondents, 21% said queer best described their sexual orientation, 18% said pansexual, 16% said gay, lesbian, or same-gender-loving, 15% said straight, 14% said bisexual, and 10% said asexual.
A 2019 Canadian survey of 2,873 trans and non-binary people found that
51% described their sexual orientation as queer, 13% as asexual, 28% as
bisexual, 13% as gay, 15% as lesbian, 31% as pansexual, 8% as straight
or heterosexual, 4% as two-spirit, and 9% as unsure or questioning.
A 2009 study in Spain found that 90% of trans women patients reported
being androphilic and 94% of trans men patients reported being
gynephilic.
Some non-binary (or genderqueer) people identify as transgender.
These identities are not specifically male or female. They can be agender, androgynous, bigender, pangender, or genderfluid, and exist outside of cisnormativity.
Bigender and androgynous are overlapping categories; bigender
individuals may identify as moving between male and female roles
(genderfluid) or as being both masculine and feminine simultaneously
(androgynous), and androgynes may similarly identify as beyond gender or
genderless (agender), between genders (intergender), moving across
genders (genderfluid), or simultaneously exhibiting multiple genders (pangender). Non-binary gender identities are independent of sexual orientation.
A transvestite is a person who cross-dresses, or dresses in clothes
typically associated with the gender opposite the one they were assigned
at birth. The term transvestite is used as a synonym for the term cross-dresser, although cross-dresser is generally considered the preferred term. The term cross-dresser
is not exactly defined in the relevant literature. Michael A. Gilbert,
professor at the Department of Philosophy, York University, Toronto,
offers this definition: "[A cross-dresser] is a person who has an
apparent gender identification with one sex, and who has and certainly
has been birth-designated as belonging to [that] sex, but who wears the
clothing of the opposite sex because it is that of the opposite sex." This definition excludes people "who wear opposite sex clothing for other reasons", such as "those female impersonators
who look upon dressing as solely connected to their livelihood, actors
undertaking roles, individual males and females enjoying a masquerade,
and so on. These individuals are cross dressing but are not cross
dressers."
Cross-dressers may not identify with, want to be, or adopt the
behaviors or practices of the opposite gender and generally do not want
to change their bodies medically or surgically. The majority of
cross-dressers identify as heterosexual.
The term transvestite and the associated outdated term transvestism are conceptually different from the term transvestic fetishism, as transvestic fetishist refers to those who intermittently use clothing of the opposite gender for fetishistic purposes. In medical terms, transvestic fetishism is differentiated from cross-dressing by use of the separate codes 302.3 in the Diagnostic and Statistical Manual of Mental Disorders (DSM) and F65.1 in the ICD.
Drag
is clothing and makeup worn on special occasions for performing or
entertaining, unlike those who are transgender or who cross-dress for
other reasons.
Drag performance includes overall presentation and behavior in addition
to clothing and makeup. Drag can be theatrical, comedic, or grotesque.
Drag queens have been considered caricatures of women by second-wave feminism. Drag artists have a long tradition in LGBT culture.
Generally the term drag queen covers men doing female drag, drag king covers women doing male drag, and faux queen covers women doing female drag.
Nevertheless, there are drag artists of all genders and sexualities who
perform for various reasons. Drag performers are not inherently
transgender. Some drag performers, transvestites, and people in the gay
community have embraced the pornographically derived term tranny for drag queens or people who engage in transvestism or cross-dressing; this term is widely considered an offensive slur if applied to transgender people.
A precise history of the global occurrence of transgender people is
difficult to assess because the modern concept of being transgender, and
of gender in general in relation to transgender identity, did not
develop until the mid-1900s. Historical depictions, records and
understandings are inherently filtered through modern principles, and
were largely viewed through a medical and (often outsider)
anthropological lens until the late 1900s.
Some historians consider the Roman emperor Elagabalus
to have been transgender. Elagabalus was reported to have dressed in a
feminine manner, preferred to be called "Lady" instead of "Lord" and may
have even sought a primitive form of gender-affirming surgery.
Worldwide, a number of societies have had traditional third gender roles, some of which continue in some form into the present day.The Hippocratic Corpus (interpreting the writing of Herodotus) describes the "disease of the Scythians" (regarding the Enaree),
which it attributes to impotency due to riding on a horse without
stirrups. This reference was well discussed by medical writings of the
1500s–1700s. Pierre Petit
writing in 1596 viewed the "Scythian disease" as natural variation, but
by the 1700s writers viewed it as a "melancholy", or "hysterical"
psychiatric disease. By the early 1800s, being transgender separate from
Hippocrates' idea of it was claimed to be widely known, but remained
poorly documented. Both trans women and trans men were cited in European
insane asylums of the early 1800s. One of the earliest recorded
transgender people in America was Thomas(ine) Hall, a seventeenth century colonial servant. The most complete account of the time came from the life of the Chevalier d'Éon
(1728–1810), a French diplomat. As cross-dressing became more
widespread in the late 1800s, discussion of transgender people increased
greatly and writers attempted to explain the origins of being
transgender. Much study came out of Germany, and was exported to other
Western audiences. Cross-dressing was seen in a pragmatic light until
the late 1800s; it had previously served a satirical or disguising
purpose. But in the latter half of the 1800s, cross-dressing and being
transgender became viewed as an increasing societal danger.
William A. Hammond wrote an 1882 account of transgender Pueblo "shamans" [sic] (mujerados), comparing them to the Scythian disease. Other writers of the late 1700s and 1800s (including Hammond's associates in the American Neurological Association)
had noted the widespread nature of transgender cultural practices among
native peoples. Explanations varied, but authors generally did not
ascribe native transgender practices to psychiatric causes, instead
condemning the practices in a religious and moral sense. Native groups
provided much study on the subject, and perhaps the majority of all
study until after WWII.
Critical studies first began to emerge in the late 1800s in
Germany, with the works of Magnus Hirschfeld. Hirschfeld coined the term
"transvestite" in 1910 as the scope of transgender study grew. His work
would lead to the 1919 founding of the Institut für Sexualwissenschaft
in Berlin. Though Hirscheld's legacy is disputed, he revolutionized the
field of study. The Institut was destroyed when the Nazis seized power
in 1933, and its research was infamously burned in the May 1933 Nazi
book burnings. Transgender issues went largely out of the public eye until after World War II. Even when they re-emerged, they reflected a forensic psychology approach, unlike the more sexological that had been employed in the lost German research.
People who experience discord between their gender and the
expectations of others or whose gender identity conflicts with their
body may benefit by talking through their feelings in depth. While
individuals may find counseling or psychotherapy helpful, it is no
longer recommended as a prerequisite for further transition steps.
Research on gender identity with regard to psychology, and scientific
understanding of the phenomenon and its related issues, is relatively
new. The term gender incongruence is listed in the ICD by the WHO. In the American (DSM), the term gender dysphoria is listed under code F64.0 for adolescents and adults, and F64.2 for children. (Further information: Causes of gender incongruence.)
France removed gender identity disorder as a diagnosis by decree in 2010, but according to French trans rights organizations, beyond the impact of the announcement itself, nothing changed. In 2017, the Danish parliament abolished the F64 Gender identity disorders. The DSM-5 refers to the topic as gender dysphoria (GD) while reinforcing the idea that being transgender is not considered a mental illness.
Transgender people may meet the criteria for a diagnosis of
gender dysphoria "only if [being transgender] causes distress or
disability."
This distress may manifest as depression or inability to work and form
healthy relationships with others. This diagnosis is often
misinterpreted as implying that all transgender people suffer from GD,
which has confused transgender people and those who seek to either
criticize or affirm them. Transgender people who are comfortable with
their gender and whose gender is not directly causing inner frustration
or impairing their functioning do not suffer from GD. Moreover, GD is
not necessarily permanent and is often resolved through therapy or
transitioning. Feeling oppressed by the negative attitudes and
behaviours of such others as legal entities does not indicate GD. GD
does not imply an opinion of immorality; the psychological establishment
holds that people with any kind of mental or emotional problem should
not receive stigma. The solution for GD is whatever will alleviate
suffering and restore functionality; this solution often, but not
always, consists of undergoing a gender transition.
Clinical training lacks relevant information needed in order to
adequately help transgender clients, which results in a large number of
practitioners who are not prepared to sufficiently work with this
population of individuals.
Many mental healthcare providers know little about transgender issues.
Those who seek help from these professionals often educate the
professional without receiving help.
This solution usually is good for transsexual people but is not the
solution for other transgender people, particularly non-binary people
who lack an exclusively male or female identity. Instead, therapists can
support their clients in whatever steps they choose to take to
transition or can support their decision not to transition while also
addressing their clients' sense of congruence between gender identity
and appearance.
Research on the specific problems faced by the transgender
community in mental health has focused on diagnosis and clinicians'
experiences instead of transgender clients' experiences. Therapy was not always sought by transgender people due to mental health needs. Prior to the seventh version of the Standards of Care
(SOC), an individual had to be diagnosed with gender identity disorder
in order to proceed with hormone treatments or sexual reassignment
surgery. The new version decreased the focus on diagnosis and instead
emphasized the importance of flexibility in order to meet the diverse
health care needs of transsexual, transgender, and all
gender-nonconforming people.
The reasons for seeking mental health services vary according to
the individual. A transgender person seeking treatment does not
necessarily mean their gender identity is problematic. The emotional
strain of dealing with stigma and experiencing transphobia
pushes many transgender people to seek treatment to improve their
quality of life, as one trans woman reflected: "Transgendered
individuals are going to come to a therapist and most of their issues
have nothing to do, specifically, with being transgendered. It has to do
because they've had to hide, they've had to lie, and they've felt all
of this guilt and shame, unfortunately usually for years!"
Many transgender people also seek mental health treatment for
depression and anxiety caused by the stigma attached to being
transgender, and some transgender people have stressed the importance of
acknowledging their gender identity with a therapist in order to
discuss other quality-of-life issues. Rarely, some choose to detransition.
Problems still remain surrounding misinformation about
transgender issues that hurt transgender people's mental health
experiences. One trans man who was enrolled as a student in a psychology
graduate program highlighted the main concerns with modern clinical
training: "Most people probably are familiar with the term transgender,
but maybe that's it. I don't think I've had any formal training just
going through [clinical] programs ... I don't think most [therapists]
know. Most therapists – Master's degree, PhD level – they've had ... one
diversity class on GLBT issues. One class out of the huge diversity
training. One class. And it was probably mostly about gay lifestyle."
Many health insurance policies do not cover treatment associated with
gender transition, and numerous people are under- or uninsured, which
raises concerns about the insufficient training most therapists receive
prior to working with transgender clients, potentially increasing
financial strain on clients without providing the treatment they need.
Many clinicians who work with transgender clients only receive mediocre
training on gender identity, but introductory training on interacting
with transgender people has recently been made available to health care
professionals to help remove barriers and increase the level of service
for the transgender population. In February 2010, France became the first country in the world to remove transgender identity from the list of mental diseases.
A 2014 study carried out by the Williams Institute (a UCLA
think tank) found that 41% of transgender people had attempted suicide,
with the rate being higher among people who experienced discrimination
in access to housing or healthcare, harassment, physical or sexual
assault, or rejection by family.
A 2019 follow-up study found that transgender people who wanted and
received gender-affirming medical care had substantially lower rates of
suicidal thoughts and attempts.
However, a study on the impact of parental support on trans youth found
that among trans children with supportive parents, only 4% attempted
suicide, a 93% decrease.
Autism is more common in people who are gender dysphoric. It is
not known whether there is a biological basis. This may be due to the
fact that people on the autism spectrum are less concerned with societal
disapproval, and feel less fear or inhibition about coming out as trans
than others.
Physical healthcare
Medical and surgical procedures exist for transsexual and some
transgender people, though most categories of transgender people as
described above are not known for seeking the following treatments. Hormone replacement therapy for trans men induces beard growth and masculinizes skin, hair, voice, and fat distribution. Hormone replacement therapy for trans women feminizes fat distribution and breasts, as well as diminishes muscle mass and strength. Laser hair removal or electrolysis removes excess hair for trans women. Surgical procedures for trans women feminize the voice, skin, face, Adam's apple, breasts, waist, buttocks, and genitals. Surgical procedures for trans men masculinize the chest and genitals and remove the womb, ovaries, and fallopian tubes. The acronyms "Gender-affirming surgery (GAS)"
and "sex reassignment surgery" (SRS) refer to genital surgery. The term
"sex reassignment therapy" (SRT) is used as an umbrella term for
physical procedures required for transition. Use of the term "sex
change" has been criticized for its emphasis on surgery, and the term
"transition" is preferred. Availability of these procedures depends on degree of gender dysphoria, presence or absence of gender identity disorder, and standards of care in the relevant jurisdiction.
Trans men who have not had a hysterectomy and who take testosterone are at increased risk for endometrial cancer because androstenedione, which is made from testosterone in the body, can be converted into estrogen, and external estrogen is a risk factor for endometrial cancer.
Detransition refers to the cessation or reversal of a sex
reassignment surgery or gender transition. Formal studies of
detransition have been few in number, of disputed quality, and politically controversial. Estimates of the rate at which detransitioning occurs vary from less than 1% to as high as 13%. Those who undergo sex reassignment surgery have very low rates of detransition or regret.
The 2015 U.S. Transgender Survey, with responses from 27,715
individuals who identified as "transgender, trans, genderqueer, [or]
non-binary", found that 8% of respondents reported some kind of
detransition. "Most of those who de-transitioned did so only
temporarily: 62% of those who had de-transitioned reported that they
were currently living full time in a gender different than the gender
they were thought to be at birth."
Detransition was associated with assigned male sex at birth, nonbinary
gender identity, and bisexual orientation, among other cohorts.
Only 5% of detransitioners (or 0.4% of total respondents) reported
doing so because gender transition was "not for them"; 82% cited
external reason(s), including pressure from others, the difficulties of
transition, and discrimination. "The most common reason cited for
de-transitioning was pressure from a parent (36%)."
Camille Cabral, a French transgender activist at a demonstration for transgender people in Paris, October 1, 2005
Legal procedures exist in some jurisdictions which allow individuals
to change their legal gender or name to reflect their gender identity.
Requirements for these procedures vary from an explicit formal diagnosis
of transsexualism,
to a diagnosis of gender identity disorder, to a letter from a
physician that attests the individual's gender transition or having
established a different gender role.
In 1994, the DSM IV entry was changed from "Transsexual" to "Gender
Identity Disorder". In 2013, the DSM V removed "Gender Identity
Disorder" and published "Gender Dysphoria" in its place. In many places, transgender people are not legally protected from discrimination in the workplace or in public accommodations.
A report released in February 2011 found that 90% of transgender people
faced discrimination at work and were unemployed at double the rate of
the general population, and over half had been harassed or turned away when attempting to access public services. Members of the transgender community also encounter high levels of discrimination in health care.
Europe
36 countries in Europe require a mental health diagnosis for legal gender recognition and 20 countries require sterilisation.
In April 2017, the European Court of Human Rights ruled that requiring
sterilisation for legal gender recognition violates human rights.
Jurisdiction over legal classification of sex in Canada is assigned
to the provinces and territories. This includes legal change of gender
classification. On June 19, 2017, Bill C-16, having passed the legislative process in the House of Commons of Canada and the Senate of Canada, became law upon receiving Royal Assent, which put it into immediate force. The law updated the Canadian Human Rights Act and the Criminal Code to include "gender identity and gender expression" as protected grounds from discrimination, hate publications and advocating transgender genocide.
The bill also added "gender identity and expression" to the list of
aggravating factors in sentencing, where the accused commits a criminal
offence against an individual because of those personal characteristics.
Similar transgender laws also exist in all the provinces and
territories.
In the United States, transgender people are protected from employment discrimination by Title VII of the Civil Rights Act of 1964.
Exceptions apply to certain types of employers, for example, employers
with fewer than 15 employees and religious organizations. In 2020, the U.S. Supreme Court affirmed that Title VII prohibits discrimination against transgender people in the case R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission.
Nicole Maines,
a trans girl, took a case to Maine's supreme court in June 2013. She
argued that being denied access to her high school's women's restroom
was a violation of Maine's Human Rights Act; one state judge has
disagreed with her, but Maines won her lawsuit against the Orono school district in January 2014 before the Maine Supreme Judicial Court. On May 14, 2016, the United States Department of Education and Department of Justice issued guidance directing public schools to allow transgender students to use bathrooms that match their gender identities.
On June 30, 2016, the United States Department of Defense removed the ban that prohibited transgender people from openly serving in the US military. On July 27, 2017, President Donald Trump tweeted that transgender Americans would not be allowed to serve "in any capacity" in the United States Armed Forces. Later that day, Joint Chiefs of Staff Chairman Joseph Dunford announced, "there will be no modifications to the current policy until the president's direction has been received by the Secretary of Defense and the secretary has issued implementation guidance." Joe Biden later reversed Trump's policy when he became president in 2021.
In April 2014, the Supreme Court of India declared transgender to be a 'third gender' in Indian law. The transgender community in India (made up of Hijras and others) has a long history in India and in Hindu mythology. Justice KS Radhakrishnan
noted in his decision that, "Seldom, our society realizes or cares to
realize the trauma, agony and pain which the members of Transgender
community undergo, nor appreciates the innate feelings of the members of
the Transgender community, especially of those whose mind and body
disown their biological sex".
Hijras have faced structural discrimination including not being able to
obtain driving licenses, and being prohibited from accessing various
social benefits. It is also common for them to be banished from
communities.
Despite the distinction between sexual orientation and gender,
throughout history gay, lesbian and bisexual subcultures were often the
only places where gender-variant people were socially accepted in the gender role
they felt they belonged to; especially during the time when legal or
medical transitioning was almost impossible. This acceptance has had a
complex history. Like the wider world, the gay community
in Western societies did not generally distinguish between sex and
gender identity until the 1970s, and the role of the transgender
community in the history of LGBT rights is often overlooked.
According to a study done at University of California, Los Angeles
in 2011, conducted in part by Gary J. Gates, 3.5% of adults across the
United States identify as either gay, lesbian, or bisexuals whereas only
0.3% of adults identify as transgender.
Transgender individuals have been part of various LGBT movements
throughout history, with significant contributions dating back to the
early days of the gay liberation movement.
The LGBT community is not a monolithic group, and there are
different modes of thought on who is a part of this diverse community.
The changes that came with the Gay Liberation Movement and Civil Rights movement
saw many gay, lesbian, and bisexual people making headway within the
public sphere, and gaining support from the wider public, throughout the
latter half of the twentieth century. The trans community only
experienced a similar surge in activism during the start of the
twenty-first century.
Due to the many different groups that make up the broader LGBT
movement, there are those within the larger community who do not believe
that the trans community has a place within the LGBT space.
The Vatican’s doctrine department has issued a recent ruling that
allows Catholic baptism for transgender individuals and infants born to
same-sex couples. Dated October 31, 2024, these new regulations stem
from questions submitted by Brazilian bishop Giuseppe Negri to the
dicastery for the Doctrine of the Faith (DDF). The responses, addressing
specific sacraments, were published on the Vatican’s website in Italy.
Concerning transgender individuals, the document states that they can
undergo baptism like any other adult, as long as there is no potential
for causing scandal or disorientation among other Catholics.
If children identifying as transgender are adequately prepared
and willing, they can receive baptism, according to the document.
Additionally, it mentions that transgender individuals, including those
who have undergone gender reassignment, can serve as godparents and
witnesses in Catholic weddings under appropriate conditions. The
document also allows the baptism of children from same-sex couples,
provided there is a well-founded hope that they will receive Catholic
religious education.
The document emphasizes that individuals in same-sex relationships are
regarded as committing a sin, and baptism is conditional upon repentance
for such actions. Several sermons by Pope Francis are referenced in the
document to support this ruling.
The Church of England passed a motion at the 2017 General Synod,
which would ensure Anglican churches accepted transgender people, even
suggesting on their website that transgender people could be gifted a Bible with their new name inscribed to support them.
Feminist views on transgender women have changed over time, but have
generally become more positive. Second-wave feminism saw numerous
clashes opposed to transgender women, since they were not seen as "true"
women, and as invading women-only spaces.
Though second-wave feminism argued for the sex and gender distinction,
some feminists believed there was a conflict between transgender
identity and the feminist cause; e.g., they believed that male-to-female
transition abandoned or devalued female identity and that transgender
people embraced traditional gender roles and stereotypes. By the emergence of third-wave feminism (around 1990), opinions had shifted to being more inclusive of both trans and gay identities.Fourth-wave feminism
(starting around 2012) has been widely trans-inclusive, but
trans-exclusive groups and ideas remain as a minority, though one that
is especially prominent in the UK. Feminists who do not accept that trans women are women have been labeled "trans-exclusionary radical feminists" (TERFs) or gender-critical feminists by opponents.
Transgender individuals experience significant rates of employment
discrimination. Approximately 90% of trans people have encountered some
form of harassment or mistreatment in their workplace. Moreover, 47%
have experienced some form of adverse employment outcome due to being
transgender; of this figure, 44% were passed over for a job, 23% were
denied a promotion, and 26% were terminated on the grounds that they
were transgender.
Studies in several cultures have found that cisgender women are more likely to be accepting of trans people than cisgender men.[
The start of the twenty-first century saw the rise in transgender activism and with it an increase in support.
Within the United States, groups such as the Trevor Project have been
serving the wider LGBT community including people who identify with the
term transgender. The group offers support in the form of educational
resources including research, advocacy, and crisis services.
The American Civil Liberties Unions (ACLU) is another group that fights
legal battles in support of many different groups including those in
the trans community.
Other groups within the United States specifically advocate for
transgender rights. One of these groups directly related to transgender
support is the National Center for Transgender Equality (NCTE), which is
committed to advocating for policy changes that protect transgender
people and promote equality. Through their research, education, and
advocacy efforts, the NCTE works to address issues such as healthcare
access, employment discrimination, and legal recognition for transgender
individuals.
One prominent organization within Europe is Transgender Europe (TGEU), a
network of organizations and individuals committed to promoting
equality and human rights for transgender people within European
borders. TGEU works to challenge discrimination, improve transgender
healthcare access, advocate for legal recognition of gender identity,
and support the well-being of transgender communities.
Little is known about the prevalence of transgender people in the
general population and reported prevalence estimates are greatly
affected by variable
definitions of transgender.
According to a recent systematic review, an estimated 9.2 out of every
100,000 people have received or requested gender affirmation surgery or
transgender hormone therapy; 6.8 out of every 100,000 people have
received a transgender-specific diagnoses; and 355 out of every 100,000
people self-identify as transgender.
These findings underscore the value of using consistent terminology
related to studying the experience of transgender, as studies that
explore surgical or hormonal gender affirmation therapy may or may not
be connected with others that follow a diagnosis of "transsexualism",
"gender identity disorder", or "gender dysphoria", none of which may
relate with those that assess self-reported identity.
Common terminology across studies does not yet exist, so population
numbers may be inconsistent, depending on how they are being counted.
A study in 2020 found that, since 1990, of those seeking sex
hormone therapy for gender dysphoria there has been a steady increase in
the percentage of trans men, such that they equal the number of trans
women seeking this treatment.
In Thailand and Laos, the term kathoey is used to refer to male-to-female transgender people and effeminate gay men. However, many transgender people in Thailand do not identify as kathoey. Transgender people have also been documented in Iran, Japan, Nepal, Indonesia, Vietnam, South Korea, Jordan, Singapore, and the greater Chinese region, including Hong Kong, Taiwan, and the People's Republic of China.
The cultures of the Indian subcontinent include a third gender, referred to as hijra in Hindi. In India, the Supreme Court
on April 15, 2014, recognized a third gender that is neither male nor
female, stating "Recognition of transgenders as a third gender is not a
social or medical issue but a human rights issue." In 1998, Shabnam Mausi became the first transgender person to be elected in India, in the central Indian state of Madhya Pradesh.
Europe
According to Amnesty International, 1.5 million transgender people live in the European Union (as at 2017), making up 0.3% of the population. A 2011 survey conducted by the Equality and Human Rights Commission
in the UK found that of 10,026 respondents, 1.4% would be classified
into a gender minority group. The survey also showed that 1% had gone
through any part of a gender reassignment process (including thoughts or
actions). In the England and Wales section of the 2021 United Kingdom census, 0.5% of respondents aged 16 and over indicated that their gender identity was different from their sex assigned at birth.
North America
The 2021 Canadian census released by Statistics Canada found that 59,460 Canadians (0.19% of the population) identified as transgender. According to the Survey of Safety in Public and Private Spaces by Statistics Canada in 2018, 0.24% of the Canadian population identified as transgender men, women or non-binary individuals.
The Social Security Administration has tracked the sex of United States citizens since 1936.
A 1968 estimate, by Ira B. Pauly, estimated that about 2,500
transsexual people were living in the United States, with four times as
many trans women as trans men. One effort to quantify the modern population in 2011 gave a "rough estimate" that 0.3% of adults in the US are transgender.
More recent studies released in 2016 estimate the proportion of
Americans who identify as transgender at 0.5 to 0.6%. This would put the
total number of transgender Americans at approximately 1.4 million
adults (as of 2016).
In the United States and Canada, some Native American and First Nations cultures traditionally recognize the existence of more than two genders, such as the Zuni male-bodied lhamana, the Lakota male-bodied winkte, and the Mohave male-bodied alyhaa and female-bodied hwamee. These traditional people, along with those from other North American Indigenous cultures, are sometimes part of the contemporary, pan-Indiantwo-spirit community. Historically, in most cultures who have alternate gender roles, if the spouse of a third gender person is not otherwise gender variant, they have not generally been regarded as other-gendered themselves, simply for being in a same-sex relationship. In Mexico, the Zapotec culture includes a third gender in the form of the Muxe. Mahu is a traditional third gender in Hawai'i and Tahiti. Mahu are valued as teachers, caretakers of culture, and healers, such as Kapaemahu. Diné (Navajo) have Nádleehi.
Latin America
In Latin American cultures, a travesti
is an individual who has been assigned male at birth and who has a
feminine, transfeminine, or "femme" gender identity. Travestis generally
undergo hormonal treatment, use female gender expression including new
names and pronouns from the masculine ones they were given when assigned
a sex, and might use breast implants, but they are not offered or do
not desire sex-reassignment surgery. Travesti might be regarded as a
gender in itself (a "third gender"), a mix between man and woman
("intergender/androgynes"), or the presence of both masculine and
feminine identities in a single person ("bigender"). They are framed as
something entirely separate from transgender women, who possess the same
gender identity of people assigned female at birth.
Other transgender identities are becoming more widely known, as a result of contact with other cultures of the Western world. These newer identities, sometimes known under the umbrella use of the term "genderqueer", along with the older travesti
term, are known as non-binary and go along with binary transgender
identities (those traditionally diagnosed under the obsolete label of
"transsexualism") under the single umbrella of transgender, but
are distinguished from cross-dressers and drag queens and kings, that
are held as nonconforming gender expressions rather than transgender
gender identities when a distinction is made.
Transgender people vary greatly in choosing when, whether, and how to
disclose their transgender status to family, close friends, and others.
The prevalence of discrimination and violence against transgender
persons can make coming out a risky decision. Fear of retaliatory
behavior, such as being removed from the parental home while underage,
is a cause for transgender people to not come out to their families
until they have reached adulthood.
Parental confusion and lack of acceptance of a transgender child may
result in parents treating a newly revealed gender identity as a "phase"
or making efforts to change their children back to "normal" by
utilizing mental health services to alter the child's gender identity.
The internet can play a significant role in the coming out process for transgender people. Some come out in an online identity
first, providing an opportunity to go through experiences virtually and
safely before risking social sanctions in the real world.
In 2014, the United States reached a "transgender tipping point", according to Time.
At this time, the media visibility of transgender people reached a
level higher than seen before. Since then, the number of transgender
portrayals across TV platforms has stayed elevated.
Trans March "Existrans" 2017
Annual marches, protests or gatherings take place around the world
for transgender issues, often taking place during the time of local Pride parades for LGBT people. These events are frequently organised by trans communities to build community, address human rights struggles, and create visibility.International Transgender Day of Visibility is an annual holiday occurring on March 31dedicated to celebrating transgender people and raising awareness of
discrimination faced by transgender people worldwide. The holiday was
founded by Michigan-based transgender activist Rachel Crandall in 2009.
Transgender Day of Remembrance
(TDOR) is held every year on November 20 in honor of Rita Hester, who
was killed on November 28, 1998. Her murder remains unsolved, but was
described in 2022 as "a result of transphobia and anti-trans violence"
by the Office of the Mayor of Boston, Michelle Wu.
TDOR memorializes victims of hate crimes and prejudice and raises
awareness of hate crimes committed upon living transgender people. Transgender Awareness Week
is a one-week celebration leading up to TDOR, dedicated to educating
about transgender and gender non-conforming people and the issues
associated with their transition or identity. Several trans marches
occur in cities around the world, including Paris, San Francisco, and
Toronto, in order to raise awareness of the transgender community.
A common symbol for the transgender community is the Transgender Pride Flag, which was designed by the American transgender woman Monica Helms in 1999, and was first shown at a pride parade in Phoenix, Arizona, in 2000. The flag consists of five horizontal stripes: light blue, pink, white, pink, and light blue Other transgender symbols include the butterfly (symbolizing transformation or metamorphosis), and a pink/light blue yin and yang symbol. Several gender symbols have been used to represent transgender people, including ⚥ and ⚧.
.svg)
.jpg_(cropped).jpg)
.jpg){kind=spacer}
