California Appeals Court Won’t Declare Sex-Change

In a particularly obtuse ruling announced on March 30, the California Second District Court of Appeal held that state courts are without jurisdiction to declare a change of sex for somebody born outside of California, even though the Legislature authorized courts to order changes on California birth certificates held by transgendered people.

The court rejected an appeal by Dominique Bacolod from a ruling by Los Angeles County Superior Court Judge H. Ronald Hauptmann. Bacolod, born in the Philippines in 1976 and recorded as male in records there, now lives in California. In March 2000, Bacolod had gender reassignment surgery in Montreal and later petitioned the court in Los Angeles for “an order recognizing that her gender is now female,” which would assist her in establishing her identity with government agencies and private businesses. Bacolod’s petition included an affidavit from her Montreal surgeon.

Bacolod’s attorney argued that the state law allowing for the alteration of California birth certificates established a policy recognizing sex changes. She relied in her petition on a 2003 ruling by Maryland’s highest court establishing that courts there could alter a Pennsylvania birth certificate even though there was not specific statutory authority to do so as there was in the case of Maryland birth certificates. The Maryland court found that failure to do so would raise constitutional issues.

Hauptmann was unimpressed by this authority, dismissing the petition while stating that the court “has no authority to make this order,” and Bacolod found no more understanding of her argument at the court of appeal.

The opinion for the court by Judge Joan D. Klein pointed to the lack of specific authority in California’s statutes but did not address Bacolod’s claim about evidence of a legislated public policy. The court rejected any invitation to be either imaginative or empathetic in its response to Bacolod’s petition, not even deigning to discuss the basic theory of the case. Instead, Klein invited Bacolod to appeal to the Legislature to resolve her problem.

The court was equally dismissive of Bacolod’s attempt to raise constitutional claims for a remedy. Bacolod argued that granting relief to transsexuals born in the state but denying it to state residents born elsewhere violated equal protection.

Klein asserted that there was a rational basis for the statute to distinguish between those born in-state and out-of-state, since California courts have no jurisdiction to order authorities in other states or countries to do anything. But Bacolod was not claiming the existing statute was unconstitutional; but rather that the court’s failure to exercise its jurisdiction on her behalf, or that of any California resident born out of state, was unfair and unjustified discrimination. Klein never directly responded to this point.

Bacolod could try to appeal this decision to the state’s Supreme Court, or seek relief from the heavily Democratic legislature.

Penis Busy, But Not Long Enough

Eric Neuberger, who said he was having sexual intercourse 20 to 50 times a month, apparently was unhappy that his penis was too short. He decided to research the problem on the Internet to see what could be done about it. His search led him to Dr. Robert Barron, who told him that a penile enlargement operation might take care of his problem.

Prior to surgery, Neuberger signed the usual releases, including acknowledging that he understood that there were no promises about the outcome and that there could be post-operative problems. Neuberger had his surgery, ended up with a longer penis, but ultimately was unsatisfied, especially when he began to experience pain and sensitivity problems.

According to Neuberger, he can now barely stand to have sex once a month. For a man of his experience, this was a deprivation not lightly to be borne. So he decided to sue Barron for malpractice, fraud and deceptive practices.

As is necessary in such cases, Neuberger and his attorney found other doctors willing to swear that Barron’s procedure was not generally accepted, or that the operation had not been done properly. And, in a fully expected response, Barron pointed out that Neuberger had signed releases, no promise of results was made and that he had carried out the procedure properly, according to his own medical experts. After discovery was concluded, summary judgment motions were filed.

Justice Eileen Bransten of New York State Supreme Court in Manhattan issued her decision on the motions, which was published in the New York Law Journal on March 30. She found no basis for the fraud and consumer protection claims that Neuberger made, but ruled that he was entitled to a trial of his malpractice claim, since there were doctors’ affidavits on both sides of the issue and contested facts to be sorted out.

However the malpractice case is resolved, Neuberger’s story may be a cautionary tale given the recent popularity of cosmetic surgical procedures among some gay men, and the risks they entail.