GENERAL REPORT The stakes in sex: a comparative study of the civil status of trans persons1 Isabel C. Jaramillo Sierra2

Table of Contents

INTRODUCTION 2 A NOTE ON TERMINOLOGY 3

PART I. PRACTICES IN THE SUBTLE ART OF REPORTING 6 OPPORTUNITIES AND LIMITATIONS IN FUNCTIONALLY DRIVEN COMPARISONS 8 FROM EUROPE TO THE WORLD 12

PART II: THE RIGHTS OF TRANS PERSONS IN COMPARATIVE LAW LITERATURE 15

PART III: MODELS TO DEAL WITH SEX MOBILITY 18 GROUND ZERO: NON-RECOGNITION OF SEX MOBILITY 20 SEX REASSIGNMENT SURGERY AS A REQUIREMENT FOR CHANGES IN BIRTH CERTIFICATES 22 POWER TO DOCTORS: THE SOFT MEDICALIZATION MODEL 24 SELF-DETERMINATION AS A LEGITIMATE SOURCE OF SEX 25 CHANGES IN NAMES: NOT ALWAYS A SMALL SOLUTION 27 EFFECTS 30 NON-BINARY SEX REPORTING: DEALING WITH EARLY SEX AMBIGUITY AND MOBILITY 31 CONCLUSIONS: THE IDEAL MODEL FOR SEX MOBILITY 33

PART IV: GENDER MODIFICATION INTERVENTIONS AND SEX MOBILITY 34 SURGERY AS DEFILEMENT: THE NEED FOR JUDICIAL AUTHORIZATION 35 NO DOCTORS TRAINED TO PROVIDE GENDER MODIFICATION SERVICES 35

1 Report prepared for the XVIII General Congress of the International Academy of Comparative Law. This report is based on the work of national reporters from twenty six different countries. For detailed information see Annex 1. 2 Full Professor of Law, Universidad de los Andes, Bogotá. The author wishes to thank Emilio Lehoucq and Guillermo Estupiñán for their extraordinary research assistance, and the Law School and Office of the Research Provost at Universidad de los Andes for providing the necessary funding to complete the project. Most importantly, she is indebted to the national reporters, most of whom were unknown to her before starting this Project, for their great work.

1 INSURANCE COVERAGE IS NOT ENOUGH OR REIMBURSEMENT IS NOT TRANSPARENT 36 INFLUENCES DRIVING PATHOLOGIZATION AND TRANSPHOBIA 37

PART V: ANTI-DISCRIMINATION ET AL 37

CONCLUSIONS 39

Introduction

For the last two hundred years, feminists have struggled to show us that sex is a marker for discrimination, exclusion and violence.3 The unapologetic fierceness the modern state would deploy in policing the boundaries of sex was hard to predict, though. The high costs of the fragile promise contained in belonging to the “right side” of the male/female binary were difficult to anticipate even for trans persons themselves. This report seeks to illuminate the map of legal responses to gender mobility, including sex and name registration, access to gender modification interventions and anti-discrimination regulation. It will show the importance of background rules in understanding the operations of law for discrimination, exclusion, and violence, as well as the stickiness of nature as a reason to introduce biology in the regulation of human relations and to justify pain and suffering. For this, the report has been divided in six parts. The first part provides an account of the way in which the report was produced. It explains the particularities of the process of production of national reports and highlights some of the resulting biases. It proposes ways to deal with these biases and methodological insights that may influence comparative work in the future. The second part contains a review of the literature on the rights of trans persons. It reveals the importance of functionally driven analysis and the existing consensus on the model of self-determination for sex change. It emphasizes how this work includes cases not available for English and French speaking readers and problematizes the functional approach for not seeing the gap between the proposed model and lingering stigma and

3 The report systematically uses sex to refer to the principle of classification of individuals into males and females, men and women, that is based on some external/visible features related to their role in reproduction. Gender, on the other hand, is used to refer to the set of characteristics socially attributed to males and females because of their sex. Eventually the report might also refer to sex as the practices of gratification that are defined by their relation to intercourse. Feminism is the political position that identifies oppression along the binaries resulting from sex and gender, in particular, that advocates for women as the subject of such oppression. Please consult the note on terminology for a fuller explanation of the conceptual framework underlying the choice of words in this report.

2 persecution. The third part engages the models of sex and name registration recounted. Here the report offers a series of indicators to classify registration as following a medical or declaratory approach to sex identification, and a community or individualistic approach to naming. It evidences the “surprise” of sex mobility and the importance of the medical and religious communities in producing the “natural” and “dignified” for the effects of population control through identification. It also underscores, using the Argentinean case, the possibilities of destabilizing the power of medical and religious discourses by opposing the “real” to the “natural” as the only possible redress for the collective trauma of having been “erased” or disappeared. Part four presents the challenges and paradoxes faced by trans persons in accessing gender modification services. It starts by explaining the health approach to gender modification and the ways in which the dogmatic construction of the right to health has helped to elucidate what can go wrong in providing treatments for trans persons. Thereafter it foregrounds the paradox involved in using the health approach to access gender modification services and rejecting the health approach for identification. It explains that this very paradox may be crucial to showing us the limits of the health approach in general. The ensuing part five of the report addresses the reforms of antidiscrimination statutes to include sex identity as a source of discrimination, exclusion, and violence. This part shows the excesses of transphobia and the efforts deployed to reduce it by recourse to criminal and constitutional law. Though the literature has been very skeptical about the impact of these efforts, sometimes even attributing to them heightened risks to trans persons, the reforms express a concern for the construction of sex diversity as exceptional and dangerous that are much worth attention. Here the reforms are organized with an eye to their potential to normalize sex diversity. Finally, in part six, the report concludes by summarizing the main findings concerning method and substance. It specially tackles the impact of sex on families and family law exceptionalism as the realms of identification become settled and issues of parenting, and social security become the frontier for debates about the “natural” in sex.

A note on terminology

3 Feminists have invested a lot of energy in the struggle over representation, the written word being one of the scenarios were this battle has taken place but not the only one.4 Normalizing the use of “gender” to refer to the characteristics which are socially assigned to individuals on the basis of their “sex”, has probably been one of feminism’s most important achievements. As noted by Joan Scott in her famous article “Gender as a useful category for historical analysis”, “gender” was key to protect research units from accusations of bias and could have had as a consequence the depolitization of research, but also allowed taking distance from arguments based on “nature” and introducing questions about the construction of males and men as correlates of females and women. 5 In this fight, however, sex became stable, uncontested, and uninteresting, as “nature”, while gender was carefully scrutinized in its binary operation hoping to unmask the injustices it produced and to discover ways to redress or transform them.6 The binary nature of sex and gender was regularized in working through the oppression of women; no oppression may be described if the “sides” cannot be somehow fixed.7

4 Isabel C. Jaramillo, “Más allá de la libertad y la expresión: las luchas por la representación” en Revista de Jurisprudencia Argentina, año 2007, pp. 16-23. On the role of language in producing the world, I find MacKinnon’s and Butler’s work most appealing. Catharine MacKinnon, Only Words, Cambridge, Harvard University Press, 1993; Judith Butler, Gender Trouble, New York, Rutledge, 1990. 5 Joan Scott, “Gender: A useful category for historical analysis” in The American Historical Review, vol. 91, No. 5, pp. 1053-1075. 6 Moving away from sex, as Scott explains, was essential to stop having to answer to every claim about brain size, influence of hormones on behavior, and social behavior observed in animals. Many resisted this move within feminism. MacKinnon, for example, argued that sex was as socially constructed as gender and actually that legal categories flowed from male interest and investment in the system. She also emphasized that legal categories had to do with penetrability and therefore with sex as a practice of gratification. In this sense, sex as a practice of gratification would produce sex as a legal category and gender as a way of making sex inteligible socially. Catharine Mackinnon, “Feminism, Marxism, Method and the State: And Agenda for Theory” in Signs, vol. 7, No. 3 (1982), pp. 515-544. French feminists also have resisted the sex/gender difference arguing that all descriptions are socially constructed and therefore embracing such difference is as much as embracing an euphemism. They will argue for the expression “social relations of the sexes” to emphasize that it is about power and not asceptic knowledge of reality. Daune-Richard A.-M. et Devreux A.-M. 1992. "Rapports sociaux de sexe et conceptualisation sociologique" Recherches féministes, vol. 5, n° 2, 1992, p. 7-30, Delphy, C., 1970, "L’ennemi principal", in Partisans, n° spécial Libération des Femmes, n°54-55, juillet – octobre, article reproduit dans Delphy (C.), 1998, L'ennemi principal : économie politique du patriarcat (Tome 1), Éditions Syllepse, Coll. Nouvelles questions féministes, Paris, p. 180 ; Devreux, A.-M. 1985. "De la construction féminine aux rapports sociaux de sexe : repères pour une évolution de la définition sociologique des catégories de sexe", BIEF, 16 : 13-23. 7 Janet Halley, Split Decisions. How to Tªake a Break from Feminism, Princenton, Princenton University Press, 2008. Halley proposes here a definition of feminism that takes serioulsy this notion and therefore holds feminism to three propositions: 1) there are women and men in the world; 2) men are winners in the social distribution of resources; 3) being a feminist is to be for women.

4 The irruption of the trans question was certainly an irritation for feminists, who initially expressed little sympathy for the efforts of transwomen to “belong” to feminism. In Latin America, feminists still remember the expulsion of transwomen from the Latin American and Caribbean Feminist Encounter that took place in Brazil in 2001 as a crucial moment for feminism and the region.8 We have learned a lot from trans persons and trans studies since then.9 First, that sex, more than a fact, more than “nature”, is a legal category: it produces effects through the decisions of doctors than then become embodied in legal documents. Second, that doctors quite often have difficulties making these decisions as variation among humans exceeds the criteria usually agreed upon as definitive: shape of genitals, genetic configuration, hormonal balances, self-image, among others. Third, that notwithstanding the societal efforts to uphold sexual differentiation through a binary, people can live quite ordinary and fulfilling lives without having to settle for one of the extremes. It is not clear to me that we have been able to transform feminist theory enough to account for this conceptual turns, but I guess at least some of us are working on it.

In this general report, thus, I use the word sex to refer to the legal category that builds on facts related to an individual’s external characteristics, in particular the outlook of his genitals, her genetic configuration and her hormonal production. I use sex mobility, consequently, to refer to the possibility individuals may have under certain legal regimes to “move” from an assigned sex

8 On the events surrounding the expulsion of transwomen from the Latin American and Caribbean Feminist Encounter see Alejandra Restrepo y Ximena Bustamante, Encuentros Feministas Latinoamericanos y del Caribe (1981-2005): Apuntes para una Historia del Movimiento (manuscript on hold with the author) (2009). The debate on transwomen continued at least until 2010. In the 2009 Encuentro that took place in Mexico, transwomen were invited but there still was a lot of dissatisfaction with their presence. On this matter Eli Bartra argues that women were perceived as “men disguised as women” (p.200, translation mine) and more importantly that these trans women were included in the encounter just because of their gender identity, without consideration of whether they were feminist or not. For Bartra, as long as the transwomen who participated were not feminists, they should have not participated. Eli Bartra, “¿Qué encuentro se busca? Breves Cavilaciones sobre el XI Encuentro Feminista y de El Caribe, en Debate Feminista, vol. 41, pp. 197-201 (2010) Bustamante, on her part, explains that the presence of transgender women in the XI encounter was considered as an unwanted influence of international organizations in the encounter’s priorities (p. 179). She also describes how rejection of transgender women was grounded on biological conceptions of what being a “woman” means (p. 180). Ximena Bustamante, “Del XI EFLAC y otros demonios” en Debate Feminista, vol. 41, pp. 165-189 (2010). On the question of entering the Encounters see Isabel C. Jaramillo Sierra, Repolitizando las diferencias: una Intervención Crítica para la Memoria (manuscript on hold with the author) (2012). 9 The field of transgender studies has been acknowledged by at least one commentator as the newest of academic fields. See Masha Raskolnikov, “Transgendering Pride” in postmedieval: a journal of medieval cultural studies, vol. 1, no. 2 (2010), pp. 157-164. In the introduction to her book Debates in Transgender, Queer and Feminist Theory (Ashgate, 2010), Patricia Elliot foregrounds the existence of the field in the 1990’s.

5 to another sex. In contrast, I use gender to refer to the multiple attributes that we consider as related to sex. Gender mobility refers then to the intention individuals may have of changing what they perceive is the baseline given by their sex; the report uses the expression gender modification interventions to refer to surgeries commonly referred to as gender reassignment or gender confirmation surgeries, in the understanding that individuals may choose and indeed do choose to change some parts of their bodies and not others, and that some surgeries or substantial body modifications can be considered as crucial by some individuals who are not interested in gender reassignment. I use the expression trans persons rather than transsexuals or transgender persons both because most issues concern them both, and because perpetuating the rift between them only helps to minoritize a claim that, as I will point out later, could become a universal claim about the role sex and gender play in shaping our lives and the pain they produce both for those who fit in too well, men and women, and for those who do not fit in, transsexuals and transgender persons.10

Part I. Practices in the subtle art of reporting

The production of this report has involved so far three stages. The first stage comprised the moment of appointment and the process of finding scholars interested in collecting information about their localities. The second stage included the production of a questionnaire that will allow for a conversation across national borders and making the national reports. The third stage supposed gathering the national reports and building analytical grids that would admit presenting these reports in their best light, but also contributing to existing literature.

I was invited as a reporter by the Secretary General of the International Academy of Comparative Law in the spring of 2016. While I had not done research on trans persons or sexual identity, I am a well-known family law scholar in Latin America and have made significant contributions to feminist legal thinking. I received nonetheless the suggestion of finding a partner of European origin and hopefully male that would “help” me find the support of national scholars and give to the report. I searched in vain for a partner that could contribute

10 On the construction of minority claims and universal claims around sex see Eve Sedgwick, Epistemology of the Closet, Berkeley, Unviersity of California Press, 1990.

6 with her expertise to gathering information and understanding the complexities of the issue, hoping that fears about scholarly biases were largely unfounded. My intellectual allies turned out to be too busy at the time and so the project ended up being an opportunity for educating young men in the sophisticated work of comparative law and in recognizing male privilege, as both Los Andes Law School and Research Provost provided funds to hire research assistants.

In the fall of 2016 we sent out roughly 133 emails to a similar number of individuals from, or with significant knowledge about, 49 countries in the world. We chose these individuals and countries based on three criteria. The first was their interest in participating in Academy’s activities related to family/civil law. Eighteen of the names and emails were provided by the Secretary General. The second criterion was to belong to a country “of interest”, either because of its legal innovations in the treatment of trans persons or because of its absolute lack of such innovations, or have written about such country. More than a hundred individuals were contacted on this basis. Finally, a few scholars wrote to me wondering whether they could write the report for their country. All of them were accepted as part of the project.

The first scholars to express a clear interest in participating in the project were all women and just a total of 12, though only 38 of the individuals initially contacted were females -we attribute this sex to them based on our knowledge about names, we might be off by ten. More than half of the reports, a total of 20 out of 26, ended up being written by women or by a group including women.11 I suppose in part this had to do with the fact that I am a woman; of course it is also part of a growing interest of women in comparative law. My national origin had little to do with the appeal of the project, as opposed to my sex, with more than half of the reports belonging to countries that are parties to the European Convention of Human Rights and only 4 reports belonging to Latin America.

Having obtained some funding for the project in the fall of 2016, my research assistant and I started to review the available literature on law and sexual diversity. Following the indications of

11 It is important to note here that the 2015 book that attempted a similar exercise of comparison of legislation on trans persons, included also views on 26 jurisdictions but had 16 male reporters and only 10 female reporters. Jens M. Scherpe, The Legal Status of Transexual and Transgender Persons, Hong Kong, Intersentia, 2015.

7 the Secretary General and inspired by the work of colleague and friend Macarena Sáez, we produced a set of guidelines for the production of national reports. We explicitly stated our objectives and asked reporters to go beyond the obvious constitutional and legal rules to find relevant international, administrative and judicial regulation, as well as context information that could be used to understand reports. The questions (included in Annex 2) emphasized social mobilization and political constellations that could provide insights about patterns of change and diffusion, and the reporter’s informed assessment of the importance of sex in their legal systems. We asked reporters to submit their reports by June 2017. We received most reports between September 2017 and December 2017, with some additions and modifications arriving as late as February 2018. The first version of the general report was submitted to the Secretary General on May 2018.12

Opportunities and limitations in functionally driven comparisons Feminists have been weary of comparisons for a long time. A first sign of alert has been the almost complete absence of women among comparative legal scholars: none of the acknowledged masters of comparative law are women, 13 few of the modern comparative law scholars are women14 and less than 10% of titular members (4 out of 47) and only 21% of titular members of the International Academy of Comparative Law are women (30 out of 144).15 The topics of interest to women, in particular family law, have also been largely excluded from the

12 Two clarifications are in order here regarding this general report. The first is that everytime I use “we”, I am referring to the collective formed by me and the national reporters. So far we have not had the opportunity to discuss these ideas in person ro validate them, but I think it is fair to recognize that generalizations here were made posible by the collective effort. The second clarification is that information about particular jurisidictions, unless otherwise noted, comes from national reports. I have not cited each report because we do not have final versions yet, nor final page numbers. 13 Of course who are the masters of comparative law is in itself a hotly debated question. Here I refer to the list carefully built by Annelise Riles and her colleagues for the production of the book Rethinking the Masters of Comparative Law, London, Hart Publishing, 2001. Actually, eventhough the editor is a woman, only one more woman wrote a chapter for the book: Vivian Grosswald Curran who wrote a chapter on Hermann Kantorowicz. 14 Again, the question of where to find comparative legal scholars is challenging. I suggest that one indication of being a “comparative legal scholar” is being included in the handbooks published by the most important publishing houses, as precise information about the members of the International Academy of Comparative Law is not publicly availabl. The Oxford Handbook of Comparative Law (2006), for example, was edited by two men, Mathias Reinmann and Reinhard Zimmermann, and included work by forty-three scholars; only four women wrote chapters for a grand total of less than ten percent. The Comparative Law Handbook by Hart Publishing (2007), was edited by a woman and a man, but only one other contributor is a woman. None of the main editors of the International Enciclopedia of Comparative Law is a woman. 15 See the Academy’s web page (updated to 2015): www.iuscomparatum.info

8 field.16 More importantly, comparisons concerning the proper treatment of women have been repeatedly used for colonial expropriation, leaving feminists with the task of confronting nationalists as they simultaneously oppose colonial expropriation and fight for women’s emancipation.17

The idea that any legal system can be interrogated for the “answers” it provides for “social problems” has also been intensely questioned. As Robert Gordon artfully explained in his 1984 article on “Critical Legal Histories”, legal scholars are not certain that “social problems” may be separated from “legal answers”.18 Rather, they have shown once and again that attempts at distinguishing these realms in order to think about possible relations among them, are incoherent or incomplete. Exporting correct legal answers, moreover, has turned out to be naïve, costly and wrong: natives not only have known about these answers all along, but are aware that they did not work in the locales of origin.19 Comparative legal scholars have particularly stressed the incommensurability of legal systems as cultural systems, and the analytical sacrifices involved in making data “speak” to questions that are alien to their own construction.20 Turning around this argument, some scholars have also shown that questions might be misleading in the understanding of the operation of legal systems either because they take too seriously doctrinal compartimentalization21 or overestimate the role of legislation or precedent in the system.22

16 Fernanda Nicola, “Family Law Exceptionalism in Comparative Law” in American Journal of Comparative Law, vol. 58 (2010), pp. 777-797 17 See, for example, Lama Abu-Odeh, “Postcolonial Feminism and the Veil: Thinking the Difference” in Feminist Review, No. 43 (1993) pp. 26- 37; and Karen Engle, “Female Subjects of International Public Law: Human Rights and the Exotic Other Female” in New England Law Review, No. 26 (1991-1992), pp. 1509-1609. See also Annelise Riles, “From Comparison to Collaboration: Experiments in a New Scholarly and Political Form” in Law and Contemporary Problems, vol. 78 (2015) pp. 124-183, suggesting that feminists have a practice of collaboration that contrasts with the discipline of comparisons. 18 Robert Gordon, “Critical Legal Histories” in Stanford Law Review, vol. 36 (1984) pp. 57-125. 19 David Trubek and Marc Galanter, “Scholars in Self-Strangement: Some Reflections on the Crisis in Law and Development Studies in the United States” in Wisconsin Law Review (1974). 20 Lama Abu-Odeh, “Modernizing Muslim Family Law: The Case of Egypt” in Vanderbilt Journal of Transnational Law, vol. 37 (2004), pp. 1043-1146. 21 Mary Ann Glendon has crucially shown how solutions need to see legal systems as systems and not as compartiments. See for example her The Transformation of Family Law, Chicago, University of Chicago Press, 1989. 22 An argument for the importance of administrative and procedural rules to be taken under consideration when comparing has been made, for example, by Helena Alviar. See Helena Alviar, “The Unending Quest for Land: A Tale of Broken Constitutional Promises” in Texas Law Review, vol. 89, pp. 1895-1914.

9 The national reports on which this general report is based reveal the extraordinary potential of international law, colonialism, and feminist collaboration for the diffusion of legal ideas. Among these ideas, the notion that there is a harm of non-recognition and a model to be followed for properly addressing this harm stand out. Almost every report expresses a criticism towards the legal treatment of this “issue” and includes some data of how poorly trans persons fare in society: their levels of unemployment and poverty are many times worse than those of the general population; they are also preferred targets of hate crimes. Because the focus of the report was not the constitutional or criminal dimensions of the remedy, the reports also highlighted the harms associated to marrying and bearing children and the impact of identity on population control. In this sense, the reports may be read as providing a rounded version of the “social problem” at hand and the “best solution” to deal with it, considering not only the expressive but also the distributive dimensions of identity.23 This version avoids the pitfalls of excessive emphasis on recognition by foregrounding administrative regulations of identity, civil law and access to the health system, as suggested by Spade.24 It also takes distance from the need of sustaining the man/woman binary and embraces sex mobility and indetermination. The solution is responsive to the difficulties of bringing about institutional change and the urgency of eliminating stigma by means different than the threat of incarceration.

It is difficult to foresee from within the limitations of such a description and recipe. In an effort to be self-critical, however, I will furnish some observations for further debate. The first observation relates to the absence of strong criticisms to the biopolitical instrument of registration and the ways in which it is used to exclude not only sexually diverse individuals but women and immigrants. Actually reports show that registration is mostly in the hands of municipal authorities with police or fiscal duties that have powers to determine some basic characteristics of individuals upon which civil and political acts become possible or not. Most reports are silent about the fact that sex influences whether a person can or should be in the military, the amount and conditions for the allocation of social security benefits, and the existence of segregated facilities, schools, universities, among others. It would seem that for the

23 On the differences between “recognition” and “distributive” harms see Nancy Fraser, Justice Interruptus, New York, Routledge, 1995. 24 Dean Spade, Normal Life: Administrative Violence, Critical Trans Politics and the Limits of Law, South End Press, 2009.

10 national reports included here, fixing the sex identity issue does not necessitate a profound questioning of the premises on which sex operates, but rather helping people make the correct choice about which sex they prefer. Reports are also silent on the topic of geographical mobility that is involved and that invites so much police brutality. Both sex workers, who are subject to intense regulations about local –zoning regulations being only one type of geographical control they are subject to-, and immigrants, for whom “crossing” means death so frequently but also means harassment, suffer consequences of registration that could invite revising the system beyond facilitating changes for the nationally correct and well behaved transitioning individual.

The second observation speaks to access to reproduction and the yet to come debates about needed transformations of maternity and paternity regimes. Some reports mention already existing cases of trans men giving birth and their claim to be at the same time “men” and “mothers”. How can we understand that someone wants to be a man, and consistently enacts this role, at the same time that he embraces the fact that he has a uterus and is able to carry a human being into life? Is this evidence of the limitations endured by all men when it comes to reproduction, their total dependency on women and their willingness to submit their bodies to a common and life spanning project? Or rather it “simply” shows that the use of bodies for reproduction needs only to be limited by our technological restrictions and thus trans men are leading the way into male pregnancy to come? It seems proper to highlight that the emphasis on trans men’s need to appear as “mothers” could obscure the extent to which men in general are barred from autonomous reproduction, not only “biologically” but legally. Paternity and maternity regimes play an important role in this restriction by establishing different criteria for mothers and fathers and overemphasizing the “natural” even beyond biology. As most reports show, with the exception of the report for the Netherlands, paternity is still considered to be dominated by the act of insemination and maternity by the act of delivery. This supposes vaginal penetration, furthermore, it assumes recognizable patterns of engagement (marriage or a ) to attribute to a certain man the act of insemination. While men have the power of becoming fathers by acts of will, they can only exercise this will positively and with regards to an existing being. On the one hand, renouncing paternity is not fully regulated in most jurisdictions. On the other, men cannot impose or hire women to produce children for them. Willingly giving up on maternity is possible for women both during pregnancy and the first years

11 of life of the child. But women have fewer possibilities of legally making other children their own: either they give birth to them through their vaginas or they adopt them. The paradoxes produced by trans persons in legal regulation of reproduction could actually help us understand better the restrictions under which we all live, instead of the small revisions that the best solution we will present here suggests.

Finally, it is worth mentioning the fact that the reports have been created by individuals who have not experienced sex mobility in their lives (at least no one has come forward to claim this experience yet). Trans persons have been adamant in their claim for inclusion using the “nothing about us without us” slogan. I have personally been accused of not understanding the limitations that trans persons face in producing legal scholarship and therefore the privilege they should enjoy in academic settings in speaking about certain topics. As hard as these accusations are to hear for a cisgender woman from the south, that is accusations about exclusion and privilege by white transmen from the north for example, I am convinced that they are useful to underline that the academic enterprise is never “neutral” and our cisgender interests are driving our interpretations. To be sure, as I already mentioned, national reports included here are careful in expressing empathy towards the plight of trans persons and in using reports and materials elaborated by trans organizations to understand this plight. In some ways, reporters portray themselves almost as spokespersons for trans persons: taking no part in defining the “problem” and following instructions in thinking about “solutions”. But isn’t precisely this distance “part of the problem”? Aren’t we exoticizing trans persons and setting them up for exclusion when we fail to think of how we are also limited in our human possibilities when we do not take seriously sex mobility? May we at the same time recognize our cisgender privilege and find the abolition of this privilege to be in the interest of all? I hear myself suspiciously speaking as a man.

From Europe to the World Seventeen out of twenty-six reports submitted here concern countries that belong to the European Convention on Human Rights. Nineteen reports claimed to be from “civil law” countries, while six more came from “common law” countries. Canada partakes of both traditions. Europe and its legal traditions can be certainly considered to be overrepresented here; only the New Zealand report introduced descriptions of the laws that existed before European

12 invasion and somehow survive until today. Several explanations for this tremendous bias come to mind. They are worth mentioning as we struggle to transform and energize comparative law as a field. The first explanation has to do with the European origin of the field of comparative law in general and of the International Academy in particular.25 Origin is ingrained in the way in which topics are formulated, individuals are approached and incentives for participation created. In the present case, the topic was presented as that of the “civil status” of trans persons. This is a particular notion proper of civil law systems; as the national reporter for New Zealand manifested: “There is no civil status in New Zealand”. The pool of possible reporters, as explained, is limited by available information on how to them and how to understand their interest in doing the work. Beyond access to information, incentives to write reports are few and tied up to prestige in Europe through publication in English and/or French in an academic press that does not circulate in most countries of the world. Secondly, one may consider silence as related to weaker academic systems that are unable to sustain academic efforts of very abstract interest. While many reporters here and many Academy members are not professional academics, that is, they do not dedicate all their available time to teaching and research, they appear to have enough resources to engage in this extra duty for little or no reward. Most definitely there are no big interests or large legal practices associated to trans persons, much less so in poorer countries. The third explanation is that non-European silence is a strategy of resistance to the civilizatory impulse animating the topic.

Indeed, Europe has created several mechanisms to domesticate itself, among them, the European Court of Human Rights. This Court has rendered decisions on the regulation of the civil status of trans persons in several occasions, sparking idiosyncratic rhythms of reform. After two cases involving the United Kingdom in which the Court denied finding any violation of article 8 or article 12 in the refusal to change the applicants’ birth certificates (Rees v. United Kingdom and Cossey v. United Kingdom), in 2005 the Grand Chamber held there is indeed a violation of article 8 of the Convention in the Christine Goodwin v. United Kingdom case. The Court established that: 1) “owing to a clear and continuing international trend towards increased social acceptance of transsexuals and towards legal recognition of the new sexual identity of post-

25 See Annelise Riles, Rethinking the Masters, op.cit. The International Academy of Comparative Law was founded in 1924 by Elemer Balogh in The Hague. See http://jura.ku.dk/english/research/comparativelaw/international_academy/

13 operative transsexuals” [and] 2) “Since there are no significant factors of public interest to weigh against the interest of this individual applicant in obtaining legal recognition of her gender re- assignment, the Court reaches the conclusion that the notion of fair balance inherent in the Convention now tilts decisively in favour of the applicant” (§ 93 of the judgment)”26 and therefore states party to the convention are under the obligation of recognizing changes in the sex of their citizens. For states that are parties to the European Convention, thus, there already exists a path cut through for the legal recognition of trans persons. More importantly, for these states showing a trend in the practices towards trans persons has a clear and beneficial consequence: The Court takes these agreements in regulation as indicative of proper ways to interpret the Convention. Before this 2005 fact, and even though as the national reports show not all parties to the Convention are equally good in complying with their obligations, non-European countries that have not taken steps towards the legal recognition of trans persons might find themselves uncomfortably fit for “intervention” in the name of gender victims. Scholars in these countries might just not catch the political and intellectual space for this question unless there is a strong mobilization around these issues. Still, because most of the reports express a conviction about the existence and possibility of a “solution” to the “problems” faced by trans persons, while at the same time emphasizing that there is still a lot of work to be done, the reports do a nice job at under toning the reprimand that could derive from their acknowledgement that their countries have taken steps towards making the lives of trans persons better.

Beyond the biases originating in the fact that most countries submitting reports in this case are European, the absence of reports concerning the situation of trans persons in Hong Kong, Japan, South Korea, Singapore, India, Pakistan, Bangladesh and Nepal, may be considered a significant loss for the understanding of “solutions” and ways in which they may be reached. From scholarship published in English and available in American data bases, we could establish that several of these countries have regulation recognizing the existence of a third sex or allow for changes of sex without sterilization. Our difficulties in finding primary sources in English or French that would allow us to verify this information, nonetheless, made it impossible for us to

26 European Court of Human Rights, Fact Sheet- Gender Identity Issues, 2018 available at: https://www.echr.coe.int/Documents/FS_Gender_identity_ENG.pdf

14 include them in this report. Interestingly these are not countries lacking strong legal academies, nor are they completely foreign to the work of the International Academy.

Part II: The rights of trans persons in comparative law literature Our search for a conversation has revealed that the topic of the legal recognition of trans persons has been the topic of two major studies and fourteen articles published in academic journals. Here we will briefly summarize their most important findings and emphasize the contribution these study makes to this corpus.

The first published major study on the legal recognition of trans persons was The Legal Status of Transexual and Transgender Persons, edited by Jens M. Scherpe and published by Intersentia in 2015. As explained by the editor, the book is the result of a project and conference led by the Center for Medical Ethics and Law from the University of Hong Kong. The contributors in the book are twenty-six, and as the editors explain, each country was selected because it either represented a region or a model of approaching legal recognition of gender identity. The book includes reports for Italy, Spain, Japan, Hong Kong, Singapore and Australia, in place of reports for Norway, Austria, Brazil, Chile, Greece, Israel, Serbia, Czech Republic, Rumania, and Colombia included in this study. It lacks, just us in our case, any report from an African jurisdiction. The questionnaire used to build the reports is similar in many ways to the one used here, but for the emphasis on political actors and mobilization that ours included and theirs didn’t. The only contributors that participated in both projects are Peter Dunne and Elizabeth MacDonald. In the very short introduction to the volume, the editor points out that the purpose of the study was to make visible the most recent developments away from medicalization and towards self-determination in sex, aiming at helping the law to develop without having to repeat mistakes already known to us. The book ends with a set of recommendations for policy makers regarding the importance of adopting a self-determination model for sex mobility and providing access to health treatments for all trans persons.

The second study was led by International Lesbian, Gay, Bisexual, Trans and Association (ILGA) and first published in 2016 by the organization itself, with a second version

15 released in November 2017.27 The Trans Legal Mapping Report was authored by Zhan Chiam, Sandra Duffy and Matilda Gil González and it “covers the legal situations” of 111 countries and 13 territories. It reports basic information about sex and name change in each country through a schematic chart that summarizes for each country whether name and sex changes are possible or not, which norm regulates each issue, and what are the requirements. It includes, when available, information about court decisions and administrative decisions. In its newest version it also includes an introduction to international law and the Interamerican System and to the situation of each region in the world with regards to the topics. It also includes some interviews to activists on the law “in action” or “on the ground”. The preface by Zhan Chiam points out that the compilation is intended to circulate information among activists interested in change the law and is therefore, and above all, an advocacy tool. The preface also celebrates “advancements” in several countries included and makes too politically charged assertions: 1) the document materialized the notion that all studies about trans persons should include them or consult them as experts; and 2) there is no north/south divide that is relevant, as trans persons in all countries endure barriers to legal recognition.

The articles available on databases amount to fourteen. They were published between 2005 and 2016, more than half were published after 2010. Only the three articles from 2005 that use the United States as one of their main, or the only, case studies, engage the problem of conceptualization and criticize the effects of identity in the law.28 Lloyd and Ohle show how legal discourse produces trans persons as monsters or, alternatively, as sick to deny them basic rights. They stress the role of judicial decisions and judicial talk in sustaining these images. For Cowan, the comparison between the United States, Canada and the United Kingdom serves to interrogate the usefulness of abandoning the gender/sex difference and the impact of reforms regarding the recognition of trans persons on women.

27 Available for free online at: www.ilga.org 28 Lloyd, A.W. (2005). “Defining the Human: Are Transgender People Strangers to the Law?” Berkeley J. Gender L. & Just., 20, 150. Ohle, J.M. (2005). “Constructing the Trannie: Transgender People and the Law”. Journal Gender Race & Just, 8, 237-280. Cowan, S. (2005). ““Gender is No Substitute for Sex”: A Comparative Human Rights Analysis of the Legal Regulation of Sexual Identity” Feminist Legal Studies, 13(1), 67-96.

16 Most articles are interested in doing the functional work we have referred to previously: they use their case studies either to ask others to emulate a good example or to criticize the perversity of the solution adopted. Five articles describe cases which are examples to follow. In his study of the cases of the United States, Hong Kong and South Corea, Holning describes the decisions by the Courts in Hong Kong and South Korea to show possible reasons to change the law on same sex marriage and sex change in the United States.29 The article by Boyce and Coyle on the 2007 decision of the Supreme Court of Nepal that granted recognition to trans persons and demanded the introduction of a third sex in official documents, similarly, aims at providing activists in other countries with arguments to eventually change their laws in the way suggested by the ruling.30 The articles by Jiang and Fynes are particularly geared at changing the law in Hong Kong and Ireland, respectively. Jiang uses the cases of Singapore, Japan and the United Kingdom to show the possibility of producing an argument to allow for sex change for purposes of marriage in the law of Hong Kong.31 Fynes uses the case of the United Kingdom to argue for change in Ireland. Nonetheless, much in the vein of Scherpes, it recommends that Ireland learns from the mistakes of the United Kingdom and jumps ahead in the recognition of trans persons.32 Finally, Mrsevic, in his 2016 revision of the legislation in 14 countries around the world, aspires to deliver evidence of the existence of a tendency to accept sex mobility without a diagnosis in order to inspire legal change.33

Five more articles reflect on cases which they see as positive but still limited versions of recognition of trans persons. Three of these articles concern the case of India and two the case of the European Union. The articles concerning the case of India stress the importance of pre- European notions of gender and specially the favorable legal and cultural treatment granted to

29 Holning, L. (2008). Sexual Orientation & Gender Identity: American Law in Light of East Asian Developments. Harv.J.L. & Gender, 31, 67. 30 Boyce, P. & Coyle, D. (2013). Development, Discourse and Law: Transgender and Same-Sex Sexualities in Nepal. IDS Evidence Report, 13, 1-32. It is important to note that the authors do not embrace fully the reasoning used by the Court, as they believe that it relied too heavily on ideas of nature and the natural. 31 Jiang, P. (2013). Legislating for Transgender People: A Comparative Study of the Change of Legal Gender in Hong Kong, Singapore, Japan and the United Kingdom. H.K. J. Legal Stud, 7, 31-73. 32 Fynes, A. (2014). A Comparative Approach to Transgender Legislation in the UK and Ireland. King’s Inns Student L. Rev., 4, 31-58. 33 Mršević, Z. (2016). Comparative Change in the Legal Status of Transgender Persons. FACTA UNIVERSITATIS, Law and Politics, 14(1), 115-132.

17 hijras.34 The most recent ones engage the Supreme Court ruling of 2014, which commanded the introduction of a third sex and the possibility of sex change.35 Both articles are interested in the fact that the same Court has refused to decriminalize same sex copulation, while admitting the existence of a third sex. The remaining two articles explain the conceptual and historical road traversed in the European Union to recognize the harm in not allowing for sex change, while at the same time being critical of the distance that has yet to be travelled.36

In conclusion, the last few years reveal a particular interest in understanding the legal recognition of trans persons and advocating for a model of self-determination. Comparative law, in these works, helps to reveal frequent mistakes, tendencies and models to follow. Political and theoretical debates are more often treated using an individual case study. This general report and the national reports that accompany it, in this sense, synthetizes the two tendencies in the literature, without being terribly innovative: it is both animated by a functional approach to comparisons and wishes to make some theoretical interventions. More importantly, this work includes reports on cases mostly unknown to the English and French speaking public and details about the way in which administrative and political apparatuses work to limit possibilities of change. It also reveals gaps in our understanding of the regulatory failures, as neither normalization nor exceptionalization seem to reduce significantly the violence endured by trans persons.

Part III: Models to deal with sex mobility

We have found so far that countries use two mechanisms to create sex: birth certificates, either produced by the civil registry office or by some other office for the control of population, and

34 Patel, A.R. (2010). India’s Hijras: The Case for . Geo. Wash. Int’l L. Rev., 42, 835-863. 35 Swain, G. (2016). as the ‘other’: The politics of Transgender community after the historic Supreme Court Verdict. International Research Journal of Multidisciplinarity Studies, 2(2), 1-6. Kodiyath, S.P. (2015). Deciphering the Dichotomy: Supreme Court of India’s Contrasting Jurisprudence on Transgender Rights and Homosexuality. N.A.Palkhivala Academy for Advanced Legal Studies and Research. 36 Bell, M. (2012). Gender Identity and Sexual Orientation: Alternative Pathways in EU Equality Law. American Journal of Comparative Law, 20(1), 127-146; Theilen, J.T. (2016). The Long Road to Recognition: Transgender Rights and Transgender Reality in Europe. In Schreiber, G. (Ed.). Transsexualität und Neurowissenschaften. De Gruyter

18 identification cards, driving licenses and passports being the most frequently used. Birth certificates have primacy over other documents as the truth they are expected to contain is generally reproduced in other documents without further need of proof. For this same reason they have been harder to change and negotiate than driving licenses and passports, that prioritize the need for certainty in identification over granting rights on the basis of sex. I will suggest here the actual existence of four models to deal with sex mobility.37 We call the first model the model of “non recognition”. In this model, individuals may never change the sex that was assigned to them by public officials at the moment of birth. The second model we refer to as a model of “strong medicalization” because it demands medical proof of sex affirming surgery, including procedures involving sterilization, to make any annotation with regards to change in sex.38 The third model is a model of “soft medicalization” because it involves doctors in the process of authorizing and accounting changes in sex, but it leaves it to the medical community to decide the criteria it will use. The fourth model, including one third of the countries that submitted reports, is a model of “self-determination”, where individuals are entitled to make the decision about the sex they wish to see reported to others. In what follows, we describe in detail each model, including the justifications used to keep it in place, or produce the change the model represents; the focus of legal strategies intending to change the model or that led to the of the present model; and remarks on the operation of the model were available.

I also address in this part the issue of names and identify three ways of approaching the relationship of names to sex. The first way, adopted early on by Germany as a “solution” for the trans persons “problem”, supposes that names are gendered and therefore matter for sex mobility, but that there might be greater flexibility in the regime of names than in the regime of sex. About half the countries in this report adopted first a regime of name flexibilization and later a model of self- determination for sex mobility. The second way does not recognize a relationship between names and sex and therefore allows for name changes through custom or habit and only sets limits on changes for reasons of fraud or criminal intent. The third way deems

37 Scherpe also has four categories or stages that closely resembles the ones I use here. See Scherpe, op.cit. 38 For a definition of Sex Affirming Surgery see: https://hr.cornell.edu/sites/default/files/trans%20terms.pdf

19 the relationship between names and sex so strong that it only allows changes in names after changes in sex.

Finally, this part reflects on the differences in regulation concerning children’s ability to engage in sex mobility and treatment of intersexual conditions. I show that according to national reports included here, the legislation of some countries recognize that forcing public officials to classify an individual as male or female upon birth may create serious problems for many persons. Some of these countries allow public officials to leave the sex box blank, others allow for sex changes as early as six years of age. Most countries, however, neither allow for a third sex nor for sex changes before the age of sixteen.

Ground zero: non-recognition of sex mobility According to the national reports submitted, only four states in the United States still have legislation that prevents individuals from changing the sex they were assigned at the moment of birth: Idaho, Kansas, Ohio and Tennessee. In these states, as it infamously used to be the case in England, birth certificates cannot be changed during an individuals’ life. In England, as the national reporter explains, this model was maintained through more than thirty years of litigation in domestic and European Courts. Indeed, as early as 1971, in the Corbett v. Corbett case, the Court decided that a transwoman could not marry a man even though she had undergone complete sex reassignment surgery because she could not be considered a woman for marriage. The Court explained that not even sex reassignment surgery could change the “natural” sex a person is born with. This position was endorsed also in R v. Tan, 1983, where the Court found that a transwoman could be convicted as a pimp, even though this was a man only crime in British legislation at the time. This position was endorsed by the European Court of Human Rights in the Rees v. United Kingdom case, in which the Court acknowledged the possible violation of article 8 of the convention but found that the conduct of the United Kingdom fell within its margin of appreciation. The limits of this decision were clarified by the Court in its 1992 decision on B v. France, where it found that France violated article 8 of the Convention when refusing to register sex changes while allowing to make many other amendments in the birth certificate of its citizens and registered different sexes for the same person in different documents. Accordingly, the situation of the United Kingdom was exceptionalized as one in which what was being protected was the accuracy of a document intended to establish

20 circumstances at birth and not to register changes suffered by individuals through life. Not surprisingly, litigation on this topic concerning the United Kingdom is abundant, with more than four cases decided by the Court without any change in the doctrine of the margin of appreciation coloring the regulation of changes in birth certificates.

The difference the European Court of Human Rights was highlighting was a difference noticed by the New Zealand reporter when explaining that there is no “civil status” in New Zealand. Actually, “civil status” was a category introduced by the Napoleonic Code to account for individual characteristics that would have “weight” in assigning rights. The proof of civil status was assigned to the office of civil registry, and certificates emanating from the registry deemed definitive proof. Civil registration, as conjured by the French, nonetheless, incorporated procedures to introduce changes when confronting a mistake or a new fact. Most notable among the new facts demanding changes in the registry were those relating to paternity and marriage. With regards to paternity, changes in the civil registry reflected both cases in which an individual ceased to be the father of someone else, or an individual became a father. These type of changes appear exclusively in the birth registry of the individual who is the son or daughter. In relation to marriage, dissolution of a marriage by death, or , merits inscription in the marriage registry to signal the change from the married status to the status as single person. Changes deriving from “new facts” have been tied up to procedures as simple as a declaration before a notary public of the acknowledgement of someone as one’s son or daughter, and as complicated as a contentious judicial procedure in which the truth of paternity or marital fault are determined. As noted by national reporters in “civil law systems” (19 in total), civil registration around the world still follows these basic intuitions.

This approach to the issue is foreign to other jurisdictions were control of births is in charge of municipal or fiscal authorities and birth certificates are considered only to describe a fact occurring in one moment in time: the birth of a child. From what reporters explain, these systems do not foresee the possibility of facts relating to birth changing and therefore have been slow to develop answers to requests to this regard. The most notable case of “conceptual” freeze, as noted, was the United Kingdom. This State repeatedly argued that birth certificates in so far as only declarative of a fact that could not change, “birth”, could not be amended to facilitate the

21 exercise of rights by individuals who had in effect changed since the moment of birth in relation to one of the characteristics relevant to the exercise of rights. Denmark, Norway and Sweeden, on their part, were reported as having population registration by fiscal authorities and marking sex in the social security number of individuals. This last system has proven to be the easiest to change, probably because of its little conceptual baggage: Sweden introduced a law to deal with sex changes as early as 1972, and Norway was recently recognized as the “second best” in protecting the rights of trans persons.

Sex reassignment surgery as a requirement for changes in birth certificates Ten reporters described their countries as currently demanding sex reassignment surgery as a requisite to obtain changes in the sex reported in the birth certificate of an individual: Brazil, Chile, Croatia, Czech Republic, Rumania, Serbia, Poland, Taiwan, Turkey and some states in the United States (including the state of Alabama). In all of these countries it is understood that sex needs to be registered at birth and this fact may only change if the individual successfully completed sex reassignment surgery, which is the last step in a long way that individuals may walk from one sex to the other. This way includes different stages of hormonal therapy, openly living as the other “sex” for a period of time, and finally undergoing castration or mastectomy, and reconstruction of sex organs associated to the new sex. During the stage in which the individual lives as the other “sex” he or she may use an assortment of treatments to appear more clearly as “other”: definitive depilation of face, legs and arms, voice training, hair implants, prosthetic implants, among others. Though not all stages are mandatory to obtain the sex reassignment surgery, it is crucial to note the amount of “work” that is demanded from the individual before allowing annotation of any change.

It is also important to highlight variations existing among these countries with regards to access to sex reassignment surgeries and the indeterminacy attributed to the rule. Thus, in Poland and Rumania, surgeries needed to prove sex reassignment need to be authorized by a judge as they are considered to affect a “personal good” protected by the Constitution. In Poland, the requirement was introduced through a decision by the Supreme Court in 1991. In Rumania, the reporter explains that the requirement was introduced in a 1996 law that in 2008 was declared constitutional by the Constitutional Court. In Rumania, the reporters explain, to obtain a change

22 of sex, individuals must first approach an authorized doctor, then must engage a judicial procedure to get a sex reassignment surgery, then need to start a judicial procedure to get a change in the birth certificate after the surgery has been completed, finally they need to ask for a change in name and ID number.

Reporters on Brazil and Chile, on their part, explain that judges occasionally interpret that changes in sex do not demand sex reassignment surgery. Professor Lathrop from Chile, for example, points out to the importance of strategic litigation led by professor Lorena Lorca in changing precedent in 24 cases. She notes that although the requirement is included in Law 4808, The Chilean Constitutional Court interpreted Gender Identity to be protected implicitly by the Chilean Constitution and explicitly by international law binding on the Chilean State (Judgement 834 by the Chilean Constitutional Court). In Brazil, both changing name and sex in the registry demand a judicial decision, according to professor Mattos. Judges, in turn, have understood that the only appropriate evidence for them to acknowledge and authorize a change in name and sex is evidence of the realization of a sex reassignment surgery. Mattos also explains, however, that some judges have allowed name and sex changes without verifying sex reassignment surgeries. To the contrary, in the case of Turkey, it is judges that over interpret the Turkish Civil Code to mean that the only way to prove there is a just ground for name change, which precedes sex change, is proving having undergone sex reassignment surgery. Though it is not an explicit requirement for name change, regulated in 2002, the reporters note that judges hardly accept any other evidence to prove there is a just ground for name change. Reporters also note that notwithstanding the existence of a 2015 case by the European Court finding that the sterilization requirement is in violation of article 8 in the Convention, the Cour de Cassation upheld the sterilization requirement in a decision following the one adopted by the European Court.

In Croatia and the Czech Republic, sex reassignment surgery was introduced as a requirement for sex change through legislation in 2013 and 2008, respectively. In the case of Croatia, the law demands a certificate from one of the authorized doctors. The reporter notes that there are very few of these doctors and that there are no specialists or clinics that perform these surgeries in the country, making access to sex change very difficult. The Taiwanese 2008 Directive governing

23 the matter of sex change is probably the one that most clearly determines the requirement: for cases of male to female transition, applicant must prove to have had penis and testicles removed; for cases of female to male transition, applicant must prove to have had breasts and uterus removed.

The case of Serbia is interesting because there is no law or regulation explicitly governing changes of sex. She notes that in Belgrade and Novi municipal authorities treat sex change as a correction in the individual’s birth certificate if sex reassignment surgery has been completed. The Constitutional Court supported this interpretation in 2012, though it also stated the importance of having a special law regulate this matter. Professor Jancic explains that two attempts to legislate on this topic were unsuccessful (2012, 2013).

Power to doctors: the soft medicalization model Five countries were reported as allowing for sex change without having to prove the completion of sex reassignment surgery but demanding a concept of a medical doctor concerning the “condition” of the individual: New Zealand (1995), England (2004), Germany (2011), Austria (2013), Israel (2014), the Netherlands (2014), and Belgium (2017). Again, there are relevant variations amongst these countries: while England submits individuals to prove they have a gender dysphoria diagnosis, have had at least two years of “real life experience” and have the consent of their spouse (2004 Gender Recognition Act), Belgium only brings in a psychiatrist to attest to the time the individual has been struggling with his/her transition when he/she is a minor. In Germany, Austria, Israel and the Netherlands, doctors are in charge of certifying significant changes in sex and prevented from restricting this diagnosis to cases in which sex reassignment surgery has been completed. In New Zealand, Courts have established that doctors may not certify transitions unless hormonal treatment has started already.

Reporters for Austria and Israel, nonetheless, express their concern that doctors make it very difficult for individuals to obtain certification of sex change. Professor Bea Verschraegen, from Austria, explains that according to the 2013 law on this topic, a change in the sex initially registered demands evidence of medical changes adopted by the individual and an expert opinion that the person’s sex will not change again. She expresses not finding the anonymized statistics

24 on sex changes that the law demands from public officials and estimates that not more than 10 changes have happened per year after the enactment of the law. She mentions that there is a perceived lack of consensus among the medical community regarding sex changes. Reporters for Israel note that although the 2014 directive by the Ministry of the Interior regarding sex change establishes that sex change does not need certification of sex reassignment, the Surgery Committee in charge of giving the required certification is very “conservative and pathologizing” and usually demands more than two years of real life experience. The attempt by the Ministry of Health to authorize any medical doctor to certify relevant sex changes for purposes of changes in the registry has been blocked by officials arguing that this was a misunderstanding of the High Court’s ruling in the 2014 case that led the Ministry of Interior to issue the directive regarding sex change.

The report for The Netherlands is careful in explaining the costs associated to sex change, mainly derived from the need to submit an expert report to have sex changed in the civil registry. These costs are not covered by the health system or private insurance and span from 60 to 300 euros, and only a few doctors are authorized as experts. Interestingly, though, these are some of the “lightest” reports as it only certifies that the person is convinced and that he/she understands the consequences of the procedure.

Self-determination as a legitimate source of sex Eight of the countries covered by this report allow for self-determination in establishing sex in the civil registry or population logs: Argentina (2012), Sweden (2013), Denmark (2014), Colombia and Ireland (2015), Norway (2016), Belgium and Greece (2017). The state of Oregon in the United States and Ontario and Alberta in Canada also allow for self-determination. In most cases, reform was introduced by a legislative body. The exceptions are Colombia and Canada, where judges have led the way in introducing rules regarding sex change and precedent still is the main source of law.

There are also important variations as to the level of protection the model offers to trans persons. Argentina, while being the first legislation to endorse self-determination in sex, or auto identification, still has the legislation most concerned with facilitating self-determination of trans

25 persons and protecting them from police brutality and persecution. Law 26743 of 2012, indeed, establishes a right to gender identity, the duty of registration officials of marking the sex indicated by the person without questions about convictions or proof of such convictions, and the right to obtain treatment to modify gender characteristics. Law 26791 of 2012 establishes the maximum penalty –life imprisonment- for individuals found guilty of killing a person because of her gender identity. Professor Saldivia, the reporter for Argentina, explains that these views about gender identity and the importance of protecting trans persons from aggression are related to the campaigns against police brutality that followed the transition to democracy in the early 1980’s, the relevance of “true” identity in the memory campaigns led by the Plaza de Mayo grandmothers, and advocacy for a despathologization of mental health patients in general.

In every other country some requirement in addition to free will remains in place. In Sweden and Greece, individuals wishing to change their sex have to show that they are unmarried. In Greece this requirement is related to the non-recognition of same sex marriages. Change of sex produced in this way, nonetheless are only acknowledged by administrative authorities. Only judicial decisions certifying sex changes are considered binding on all authorities. In Denmark, there is a waiting period of six months and a duty to appear in person before the public official twice. This is also the case in Belgium. The 2017 law on gender identity determined that to change sex in official documents, individuals should appear twice before competent authorities, wait 3 to 6 months, and prove being fully informed about the consequences of the procedure. The Public Prosecutor’s office also needs to be notified in case it wishes to raise an objection. In Belgium individuals may request the sex change to be reverted to avoid transphobia or because they felt happier before the change. In Norway, individuals need to contact the Directorate of Taxes for pertinent information, and send back a signed slip confirming they have received proper information. The procedure is only available for Norwegian citizens. In Ireland, similarly, individuals declare to be acting out of their own free will and to know the consequences of their decision. In Colombia, individuals need to approach a public notary and have a public deed produced for the registrar to make the change.

26 Changes in names: not always a small solution The expression “small solution” in the context of trans persons was introduced in the German doctrinal debate to refer to the possibility of introducing flexibility in the regime of naming to allow trans persons to use their identified sex rather than their legal sex in social contexts. As in many of the countries for which we have reports, German law restricts naming practices to accomplish two objectives: to reflect the person’s sex and to prevent humiliation and ridicule in the case of children. In 1980, a law regarding the change of names and declaration of affiliation to a sex was introduced to allow trans persons to build a social identity somehow separated from their legal identity. The law uses the expression “transsexual imprint” to refer to the cases it addresses and allows individuals to petition district courts to obtain a change in their name to reflect their sex affiliation. For this change to be ordered, they need to present opinions about their case by two experts in transsexualism. Professor Sanders explains that until 1993, individuals had to be more than 25 years old to request a change of name, and until 1996, individuals could be referred to by their legal sex rather than their identified sex. Doctrine strongly advocated that change of sex demanded full sex reassignment. Only since 2011, through a decision of the German Constitutional Court, requirements for sex change became the same established in the 1980 law for name change.

Belgium, as Germany, adopted this solution for trans persons quite early on: 1987. Following this law, individuals who felt they wanted to change their forename because their sex did not match the sex in the birth certificate, had to had a declaration of honor to their request and declarations from medical experts regarding the individual’s experience of sex mobility. Nowadays, though, trans persons who have had their sex changed in the certificate have a right to change their forenames at a reduced rate of 49 euros. As professors Gallus and Verschelden note, other persons interested in changing their forenames can do so if allowed by the Federal Public Service and need to pay 490 euros.

In Colombia, individuals may change their name for free and at will since 1988 without having to state any reason or give justification. Although there are no restrictions in the law regarding the name that an individual may choose, in 1993 the Constitutional Court decided a case in which a public official denied a request of name change because the individual was choosing a

27 female name while being identified as a man in the birth certificate. In decision T-594 of 1993, the Court affirmed that names were deeply connected to the right to an identity and therefore public officials could not place any restrictions on individual’s choice of name when requesting a name change. This rule covered not only trans persons but also persons wishing to adopt ridiculous or humiliating names. In decision T-168 of 2005, the Court asserted the right of an individual to bear the name of his preferred soccer team against the public official concern over trademarks and authenticity in the desire to be called in such a ridiculous way. In 2008, the Court explained that individuals that had changed their name once, could change it a second time if the aim was to have their name correspond to their sexual identity. In its most recent decision on the law of name changes, C-114 of 2017, the Court clarified the general right of individuals to change their name more than once but the duty, according to the Civil Procedure Code, of obtaining judicial authorization for the change. One reason for a second name change, as the Court consistently recognized since 2008, could be a change in sex, but the Court recognized in this decision that there could be other circumstances justifying the change in name that could be pondered by judges and lead to exceptional authorizations.

In Denmark, change in name was also made accessible to trans persons before adopting a model of self-determination for sex mobility. According to the Act on Names, individual names have to belong to a list of approved names for each sex. Nonetheless, since 2005, the Ministry of the Interior allowed changes for people who had been declared “transsexuals” by the Sexology Clinic in Stockholm. After 2009, the report of the Sexology Clinic was deemed unnecessary for the change in name. In Sweden, similarly, change of name was possible in order to reflect an individual’s choice of sex since 2009. For this country, however, the change in a very strict regulation was introduced in a decision by the Supreme Administrative Court that determined that choice of name could not be restricted by public officials.

England had a flexibility in naming practices that somehow did not bear a relation to the rigidity of the legal system with regards to sex changes in official documents. As reported by professor Dunne, no formalities are needed to use different names in different life situations: “Under the English Common Law, persons have the right to change their name without undertaking formal legal procedure (provided there is no fraudulent or criminal intent)”. But to have a change in

28 name acknowledged by government officials a deed poll needs to be executed. These deed polls require either a declaration signed by two witnesses that attest to the fact that the individual is known by the new name rather than by the “official” one; or a request by an organization with which an individual is interacting. Having executed a name change is considered evidence of the real life experience demanded to obtain a gender recognition certificate after 2004. The USA, according to national reporters, has a similar system for name change: individuals may request state level courts for a change of name and in general all they need to do is appear in court. In this case, nonetheless, reporters identify higher risks for trans persons given the power judges have in the common law to impede a change in name to “prevent fraud”. They also explain that certain states do not allow people in prison or on parole to change names and this significantly affects trans persons who have much higher probabilities of being in these situations.

The same flexibility in naming is attributed to Israel by the authors of the report. They state that individuals may freely request changes in their names every seven years. The term limits may be overcome if a special circumstance arises. Israel, on the other hand, retains a soft medicalization model with little access to sex mobility as pointed out above. Elizabeth MacDonald explains that it is also true in New Zealand that individuals may change their forenames upon request and payment of a fee. Taiwan is another example were names can easily be changed. Professor Yi- Chien Chen explains that people change names for a variety of reasons in Taiwan, including to follow recommendations from fortune tellers regarding bad luck.

The idea that names could be expressive of individual choices is completely absent in some countries were names are so strictly tied to gender and strongly regulated by the state, that individuals may only change their names after undergoing sex change and then only after completing sex reassignment surgery. This is true for Poland, Rumania, Serbia, Turkey and the Czech Republic. In all of these countries, changes in name require a judicial or administrative authorization after corroboration of a “justifiable reason”. Reporters point out that judges and other public officials routinely interpret that the only justifiable reason for a man to use a woman’s name and vice versa is to have changed her sex. In these countries change of sex is only authorized after sex reassignment surgery and this surgery needs judicial authorization. In Brazil and Chile most judges interpret also that changes in name can only follow change in sex.

29 In Brazil, change in name to adapt to sexual identity was only authorized in 2017. As pointed out above, in general, these countries also demand sex reassignment surgery before allowing sex change but judges may decide otherwise, and have done so. Norway is the only country that ties change of sex to change of name and has adopted the self- determination model for sexual identification. In this country, individuals may change their names every ten years and individuals choosing sex mobility may choose gender neutral names before definitely changing to a name from the other sex.

Family law effects Sex plays a crucial role in the regulation of marriage and parenting in most countries. With regards to marriage, the initially question was whether an individual who had undergone gender reassignment surgery could marry according to her new sex. This was the case decided in Goodwin v. United Kingdom that, in 2002, led the European Court of Human Rights to demand from England legal recognition of changes of sex in the birth certificate. As sex change started to be legally recognized, the question of the dissolution of marriage by sex change became crucial, with most jurisdictions establishing an ipso facto dissolution of any marriage the person that underwent gender reassignment surgery was in. As same sex marriage became sanctioned in most jurisdictions represented here, rules demanding the celibacy of trans persons, establishing the dissolution of their marriages or converting their marriages into civil partnerships, were explicitly or implicitly repealed. Only Poland, Greece and Turkey still demand celibacy for sex change among the countries included here. In England, individuals who are married need to show they have spousal consent to have their gender recognition certificate issued.

Most jurisdictions represented here, on the other hand, determine that sex changes shall not affect the birth certificates of the children bore by trans persons. This rule is criticized for not representing the “truth” of the situation and potentially leading to confusion, specially as erasing traces of sex and name change becomes a standard way of protecting trans persons from transphobia. There is consensus, nonetheless, that once the parenting relationship is established, changing the name or sex cannot affect the legal bond between the parent and the child. Much more difficult to tackle has been the situation of trans men who give birth. The national report for Israel explains that in one case sex was legally changed five times to accommodate the fact that

30 according to Israeli law only women could be mothers and children could not be registered as motherless. Several national reports explain that as sex change without sterilization becomes normal the need to address parenting rules will become more urgent. In the case of a woman who gives birth while married to a trans woman, the co-maternity arrangement adopted by Norway and a few other countries for the case of same sex couples seems to work well enough. Still, it reveals the extent to which legal solutions for lesbians and gays may not be enough for trans persons: “nature” is put to the test in quite different ways.

Non-binary sex reporting: dealing with early sex ambiguity and mobility As pointed out above, not only the experiences of trans persons have reached Courts and legislators. Individuals born with sexual ambiguity and living experiences of sex mobility at very early ages have also influenced the regulation of sex. A few of the countries in this report have regulations for this situations. In Argentina, Law 26743 of 2012, establishes that minors may request sex change with support from their parents and following rules of progressive autonomy introduced by the Convention on the Rights of the Child. In effect, a famous Argentinean case involved a six-year-old that was allowed to change her sex. The Norwegian reform of 2016 also allows changing the sex of individuals from zero to six years of age. For this age range, however, it demands proving a medical condition. For individuals between six and sixteen years of age, sex change is allowed with parental consent and guidance.

The convenience of sex interventions at early ages was carefully discussed by the Colombian Constitutional Court in 1999 (decision SU-337 of 1999). The Court confronted the case of a seven-year-old whose mother, under advise of a medical team, considered convenient to subject her to a medical intervention to establish her sex more clearly. The medical team denied the surgery following the 1995 decision (decision T-495 of 1995) by this same Court that argued that surgical interventions on intersexual persons should not be performed until the individual himself reached the point of being able to give consent. The Court, in a decision by the plenary, determined that sex assignment surgeries are not urgent but are indeed very invasive and therefore demand the consent of the individual himself, parental consent being important as support and guidance but not enough to proceed with a surgery. The Court took into consideration multiple studies and testimonies to the effect that hormonal and surgical

31 interventions at an early age seem to work more to satisfy societal demands of sexual determination than to help individuals to live happier lives. It carefully considered the pain and suffering reported by individuals forced to submit to many medical interventions over their first years of age who later on found either that the medical team made a mistake when assigning the sex and working to confirm it, or that in adolescence new facts arose that made initial decisions seem less adequate. Though the Court found that it could not force intersexual persons to lead societal change about sex, it also found that it could force registrars to accept leaving the sex box blank.

The Colombian solution is similar to the one adopted by the 2017 directive of the Ministry of Health in Israel, which establishes that surgeries should always be consented to by individuals unless there is proof of risk to life. Sweden introduced in 2013 a restriction on medical interventions for trans individuals at 12 years of age. The only other national report mentioning this issue was the report for England. Professor Dunne explains that the Committee on the Rights of the Child has advised England to introduce regulation concerning surgeries on intersex babies. The Chilean national reporter indicates that it found at least one case in which a 5-year-old was allowed to change her name and sex in legal documents (it is not clear that she was an intersexual person). Most national reports explain that the age for engaging sex change, especially if surgery is involved, is 18 years. Some countries allow 15 year olds to start the process, with additional requirements. Interestingly, however, there is no mention of the practice regarding intersex babies. Most countries do force registrars, and doctors, to choose for M or F when drafting birth certificates. Only Germany, Austria, the province of Ontario, and the Netherlands, besides Colombia, are reported as allowing for a blank, an x, or stating that sex is indeterminate in the birth certificate. Denmark and New Zealand allow for an x in passports. New Zealand also allows the driver license to state sex as indeterminate.

The debate before the Colombian Constitutional Court illustrates the rift between individuals who feel that sex determination is definitive to live good lives, and therefore support a sexual binary and emphasize sex mobility, and individuals who believe that sex is/should be ambiguous, and therefore should not matter for society or for legislation. As we will show in the conclusions, most countries allowing for sex change have not transformed sexually segregated facilities and

32 educational spaces, sexually segregated armies, differences in social security regulation, special protections for women, among other relevant consequences of the sex you have. This approach supports the first position; one that thinks that sex should matter but would like individuals to be able to choose according to their inner experience of how sex matters. The second position is closer to a feminist understanding of how the world should change.

Conclusions: The ideal model for sex mobility The national reporter for Argentina, Professor Saldivia, correctly notes that in times of biometric identification, emphasis on security as the value safeguarded by rules on sex identification seems misplaced. Argentinian legislation allowing for choice of sex in birth certificates and other official documents, the model we have called here of self-determination, appears to adequately protect the right of individuals to decide on their belonging to one sex or the other without recourse to doctors, psychiatrists or other experts. This model also diminishes possibilities of humiliation and offense by public officials, as well as making decisions about bodily shape and function without proper information or just to comply with expectations about sex that constitute heavy burdens on individuals that are certain to not be adequately classified but are not certain as to the need to proceed to do dangerous and costly things to “fit in”.

The question of intersexual persons becomes most relevant in the context of accepting that legal sex need not correspond to any “biological” reality. As a matter of fact, as pointed out by several national reporters, the impulse of “biological” conformity normalized sexual reassignment surgeries for intersexual babies and toddlers in countries were adults were prevented from requesting these procedures and not allowed to act as having a sex different from the one they were initially registered with. Detaching sex from “biology”, then should also help in reducing the sense of urgency with which the “problem” of intersexuality has been faced up until now. Stressing self-determination could lead, also, as established by the Colombian Constitutional Court, to an understanding of the importance of waiting for individuals to have enough discernment to make decisions regarding their bodies. The need to create a third box for sex or allow sex to be marked as unknown becomes irrelevant or most important, depending on the position one subscribes to concerning the relevance of sex for social life. Indeed, if sex is a matter of choice and self-determination, intersexual persons should feel at ease in deciding for

33 one or the other knowing that they may change later on if their choice does not correspond to their actual experience. This would agree with the idea that self-determination in sex leads to the deconstruction of sex. For those who believe that the self-determination model is proper not because it makes sex irrelevant but because it alleviates bureaucratic burdens for trans persons, then a third sex becomes important to allow intersexual persons to be correctly represented by legal categories. Interestingly enough, countries that currently have regulation concerning a third sex or allow the sex box to not be marked, also have self-determination models for sex.

Part IV: Gender modification interventions and sex mobility

An important element in the development of the “issue” of trans persons is the technological progress in bodily interventions and the growth of a cosmetic industry that not only embellishes but also modifies bodily shape and function, mostly feeding on women’s anxiety over their appearance and recently also catering to men. In this context, the inner experience of “belonging to another sex” or “being trapped in the wrong body” can be translated into practices of body modification with high costs and, still, high risks associated. The relevant question becomes then who should bear the costs of these practices of modification. The answer provided by most reports is that national health systems consider gender reassignment surgeries to be included in the mandatory health package. Most reporters, nonetheless, point to harsh realities even in this scheme and suggest that health systems should also cover other gender modification costs. Three reasons are implicitly articulated to justify these claims. First, the importance of the binary understanding of sex for acceptance into society and the corresponding pain and suffering of not looking the same. Second, the poverty endured by most trans persons as a consequence of their difficulties in fitting in. Third, the concern that if individuals are not provided with these treatments they may look for the cheapest possibilities available, not always bearing in mind the risks to their health and even their lives.

The Danish report, nonetheless, highlights the contradictions that may derive from adopting a self-determination model for sex and pushing for greater coverage in the health system: once the gender dysphoria diagnostic is abandoned, what would be the justification for massive investments in the individual choices of some individuals? The Danish solution was to leave a

34 diagnostic related to sex mobility in the medial protocols, in the understanding, however, that this is not really a medical condition but rather a life choice. Health systems with greater financial pressures might not be as easy to manipulate. Self-determination models may in fact drive societies to understand choices related to sex mobility as individual choices that should be funded by individuals. This, of course, means not taking any responsibility as a society for the desire to look the same that is at the root of the desperate search for interventions in body shape and function. Probably we would need to work on a notion of reparations to work out a scheme that would help complete the transition from strong medicalization models to self-determination models in sex. In what follows we describe limitations identified by national reporters in the access of trans persons to gender modification interventions. Overcoming these limitations is partially connected to the transformation of regulation on sex mobility, but other factors influence access enough to merit an independent consideration of them.

Surgery as defilement: the need for judicial authorization The most important barrier to access gender modification services from health providers is reported to exist in Turkey, Poland and Rumania, were individuals interested in surgeries that could affect their reproductive functions need judicial authorization. This requirement derives from the idea that individuals may not dispose of their bodies freely and therefore only in extenuating circumstances can be dispensed to proceed with their intentions.

No doctors trained to provide gender modification services In nine national reports, authors explain that there are no doctors trained to provide gender modification services or that there are too few to attend the number of patients requesting this services. The national reporter for Austria, for example, notes that although gender reassignment surgeries have been authorized since 1995 –through a decision by the Supreme Court, there are some surgeries that cannot be performed in the country as there are no doctors trained for this (phallus reconstruction is explicitly mentioned by the report as a surgery that cannot take place in Austria). In the same vein, the national reporter for Croatia states that there are no doctors that can perform the surgery in her country. Reporters for Brazil, Denmark and Israel point out that existing legislation establishes that only authorized providers can offer these services and there are too few providers. In Brazil there are only 5 clinics and they are located in the main cities; in

35 Denmark treatment is only authorized at the Sexological Institute in Stockholm, and in Israel only one hospital has created a surgery committee needed to authorize procedures although the protocol exists since 1986. The national reporter for New Zealand, professor McDonald, explains that there are only funds for 3 surgeries per year and therefore waiting lists are very long. Reporters for Belgium, Ireland, Rumania and the United States also note the scarcity of doctors and specialist teams.

Insurance coverage is not enough or reimbursement is not transparent Only two national reports clearly state that gender reassignment surgeries are not covered by their health services: Chile and Poland. In every other jurisdiction of those included here, gender reassignment surgeries are covered by the mandatory health plan as long as there is a diagnosis. In most cases the diagnosis is that of “gender dysphoria”. In Denmark and Norway, a diagnosis is necessary but it is understood that it is not an illness or mental disorder. In many countries access to gender modification services is recent, dating from 2012 or 2013, when the most relevant change regarding the recognition of sex mobility was introduced in their legislation. But in countries like Sweden and Israel, health services have been accessible on paper for much longer: 1972 and 1986, respectively.

Then again, only in Norway and Sweden is it clear that all gender modification interventions deemed necessary are covered by the health system. The national reporters for Canada explain that coverage in their country is dominated by the aesthetic/medical binary and therefore only those interventions needed to safeguard the individual’s health are included. The national reporters for Israel find that it is precisely the need to negotiate across this difference one of the elements that makes it so hard for trans persons to access health services in their country. In the United States, interestingly, the team of national reporters explains that although the mandatory health package for the poorest population –Medicaid and Medicare- include gender modification interventions, most doctors in the country and specially those trained, refuse to work for those insurers, turning the guarantee nugatory. In the United States, individuals in prison may access treatment since 2011 as long as they prove having started their life process before entering prison. Since 2016 treatment is also covered for members of the military.

36 Influences driving pathologization and transphobia Although reports suggest that the fact that the health system in a given country does not provide gender modification services is directly connected to recognition of the rights of trans persons under the self-determination model, the case of Serbia is illustrative of the possibility of a strong medical practice that develops privately. Similarly, the national report for Israel explains that with the 1986 protocol a private practice has developed beyond the publicly funded health system. Austria would provide an example of exactly the opposite path: there are no doctors even if regulation in place since 1995 guarantees coverage. Professor Mattos, for the case of Brazil, points out to the “transphobia” that prevails in the Brazilian health system and that has been documented as a barrier in accessing services that are included in health plans since 2008.The point here is that transphobia is not only connected to regulation of the civil status of trans persons: it is neither the sole cause of transphobia nor the only step that needs to be taken to transform the current state of things.

National reporters for Poland and Israel reveal how the empowerment of conservative religious authorities may be connected to unleashing a new version of “nature” as argument against self- determination in sex. Indeed, if the pathologization paradigm centered science in describing nature, a view of nature in which deviations were represented as diseases, transphobia represents a return to moral disgust and exegesis as reasons to reject certain expressions of the self. In the Christian world these reasons have organized under the banner of a rejection of “gender ideology”, where gender ideology is exposed as holding the notion that sex is not “natural” but rather socially and culturally constructed.39 Now the natural is not the result of scientific studies but driven by images of God and interpreted by theology.

Part V: Anti-discrimination et al

39 I found Duncan Dormor’s mapping of Christian responses to the issues raised by trans persons very useful. See his chapter in Scherpe, op.cit: “Transgenderism and the Christian Church”, pp. 28-68. An authoritative position on the Vatican’s understanding of the stakes and actors in the confrontation may be found in the Doctrine for the Congregation of the Faith’s Letter to Bishops on the Collaboration of Men and Women in the Church and in the World (2004) available at: www.catholicnewsagency.com

37 Concern over transphobia has animated both the introduction of criminal offenses and anti- discrimination regulation. Three countries have moved in the direction of criminalization: Argentina, Turkey and Greece. Argentina introduced in 2012 a reform in the criminal code to punish with life sentence the act of killing someone for her gender identity; Greece introduced in 2013 and 2014 laws punishing discrimination and aggression based on gender identity among others. In Turkey the Constitutional Court established in 2014 that calling LGBTI persons “perverts” should be considered hate speech for all legal purposes.

Roughly a third of the countries have rules on employment discrimination, prison segregation and use of public facilities that explicitly use the expression “gender identity” or “gender expression”. In the United States the national reporters argue that this protection came as early as 1989, when the Supreme Court argued in the case of Pricewater House v. Hopkins, that gender stereotyping could be understood as a form of discrimination based on sex for the application of title VII. In most countries that have introduced protections for gender identity as a different category than sexual orientation, regulation has been introduced much later. Croatia reports using the “gender diversity” category in its 2003 and 2008 antidiscrimination regulation and Belgium in 2007 established that discrimination would not be allowed in cases of gender reassignment. In Israel it wasn’t until 2015 that the Supreme Court found that discrimination based on gender identity was forbidden (Center for Technological Education v. Meshek), while in Norway the category was introduced in 2017 along with the self-determination model.

Regarding public facilities, national reporters express little enthusiasm as to the advances and point to rules that enforce segregation and therefore support violence against individuals who do not seem to fit in the categories. The most pressing issue has been prison segregation for the violence, mostly sexual violence, endured by trans persons. In Canada, Israel and Colombia, reporters point to rules allowing for imprisonment in the facilities of the identified or social sex, rather than the legal sex. But both in the cases of Israel and Colombia the regulation concerning prisons do not seem to work as well on the ground. National reporters for the United States are particular in signaling the problems derived from the absence of recognition of sex mobility and denouncing the frequency with which the problem is “solved” using solitary confinement.

38 Other uses of public facilities have been contested but there seems to be little consensus as to the “solutions”. In Denmark and Norway, for example, trans women who have not undergone gender reassignment surgery cannot use public swimming pools, dressing rooms or Spas destined for women only. In England, trans persons in general are prevented from participating professionally in sports while in New Zealand they may do so as long as they are taking hormones that correspond to the sex they want to represent.

Every jurisdiction included in this compilation acknowledged that sex remained a crucial element in the organization of social life, beyond marriage and parenting. National reporters for Turkey and Ireland pointed out to specific ways in which these rules bread transphobia. In the case of Turkey, the legally enforced dressing code for public officials is presented as a cause for exclusion of trans persons from public service, while the fact that they are considered mentally unfit to serve in the military excludes them from private service. In Ireland, according to professor Dune, the consecration of motherhood as a public service in the Constitution translates into a felt need to segregate individuals throughout their lives making it very difficult for trans persons to operate in this environment. Every other report points to the existence of rules that treat men and women differently for social security purposes, for accommodation of motherhood in labor law, and for military drafting. Only the national reporter for the Netherlands points out to a debate about the possibility of eliminating sex as a category for identification altogether, and the national reporter for Germany pointed out that the Federal Constitutional Court, when ordering the introduction of a third sex in official documentation, explained that if this option was not acceptable, sex should be eliminated from the particular document involved.

Conclusions

As noted in the introduction, the main purpose of this report was to map out legal responses to the issue of legal recognition of trans persons. In line with existing literature, this report finds that law can be as extreme as rejecting the possibility of changes in sex markers, or as generous as to recognize that individuals themselves should be able to decide which sex they identify with. Countries in the later situation, though, do not feel that they have reached an ideal regulatory

39 solution yet. National reporters show that concerns over appropriate protocols for care in the health system, discrimination and violence, persist even in the face of legislation recognizing self-determination. Independent efforts oriented to “fixing” these other systems seem to be in order: health regulations, criminal sanctions and employment protections proliferate in the search for “solutions” to the marginalization and impoverishment of trans persons. Thus a particular tension is revealed as to the role of law in the production of identity: if law is indeed so powerful in creating sex, how come undoing law is not enough to undo sex? Moreover, if stigma is the result of law’s fixation on the “natural” how come doing away with it does not reverse stigma? Part of the answer may lie with the modes of dissemination of models of regulation. In this case in particular some studies have shown that more than reaching ideological alignment or public opinion support, reforms may be the result of activist bureaucracies, legislators or judges interested in complying with standards fixed by an external authority.40 I already mentioned in the introduction the important role of the European Court of Human Rights in producing changes in countries that are signatories to the Convention. The cases of Argentina and Colombia, however, cannot be aptly explained by theories of dissemination. The political work in these cases seems to be done by the notions of transition and the weight they give to identity, true and bodily integrity. These cases could, probably should, be compared to those of Nepal, India and South Korea to check the transition hypothesis and understand its full impact. In particular, these cases could be useful to understand the power of anti-rights groups in shaping public opinion even against clear legal mandates.

The national reports also reveal the urgency of re-examining family law beyond accommodations linked to the gay and lesbian agenda. Indeed, after authorization for marriage and the elimination of celibacy requirements for sex mobility, the issue of parenting has become pressing for trans persons. Three clashing concerns have been expressed by national reporters: 1) every individual’s right to know her true identity, including her provenance; 2) the need for security in identifying the parents of an individual to demand compliance of their duties; 3) trans persons need to be secure in their new identities and avoid stigma and persecution. While the first two

40 Jami Taylor, Barry Tadlock and Sarah Poggione, “Birth Certificate Ammendment Laws and Morality Politics” in Transgender Rights and Politics (Jami K. Taylor and Donald Haider-Markel, eds), Ann Arbor, University of Michigan Press, 2015.

40 concerns are reasons to keep “original” names and sex markers in birth certificates of children born to trans persons, the third pushes for amending those certificates and introducing information that corresponds to the new situation. Beyond the issue of how to keep the record, however, is the question of which facts are relevant to establish parental relations. Currently, legislation assumes that individuals marked as women will contribute with their ovules and uterus to reproduction, while individuals marked as men will contribute with their sperm. We now know that this is not the only possibility. Our laws need to adjust to this knowledge.

Finally, this report suggests that the trans and inter “issues” could be read as interrogating more broadly the role of sex in our current legal and cultural systems, both as justification for affirmative measures for the advancement of women, and for segregation of men and women. Feminists have been struggling for some time with the challenges posed by this question. It is unreasonable though, in light of what we know now about how sex works to produce pain and suffering, to insist on following the same strategy pursued up to today: some affirmative action plus some segregation. An extension of the notion of parity to every sphere of life could be a plausible model.41 But the search for alternatives has just begun.

41 See Isabel C. Jaramillo Sierra, “La paridad como forma de pensar la emancipación: oportunidades y límites” en Hacia Políticas Judiciales de Género (Paola Bergallo y Aluminé Moreno, eds) Buenos Aires, Editorial Jusbuenosaires, 2017, pp. 261-271.

41 Annex 1. Detail for National Reports

Jurisdiction Reporter Affiliation Argentina Laura Saldivia Universidad de Palermo Germany Anne Sanders Bonn University Austria Bea Verschraegen Universidad de Viena Belgium Nicole Gallus Université Libre de Bruxelles Belgium Gerd Verschelden Ghent University Faculty of Law and Criminology Department of Interdisciplinary Study of Law, Private Law and Business Law Brazil Ana Carla Matos Universidade Federal Paraná Canada Michelle Giroux Universidad de Ottawa Canada Louise Langevin Université Laval Chile Fabiola Lathrop Universidad de Chile Colombia Emilio Lehoucq Universidad de Los Andes Croatia Nenad Hlača Law Faculty, University of Rijeka. Czech Republic Zdeňka Králíčková Masaryk University, Faculty of Law Denmark Ditlev Tamm Universidad de Copenhague Denmark Ingrid Lund-Andersen Universidad de Copenhague England Peter Dunne Universidad de Bristol. Greece Anna-Maria Konsta Aristotle University of Thessaloniki Ireland Peter Dunne Universidad de Bristol Israel Ido Katri Doctoral Student at University of Toronto Netherlands Gerard-René de Groot Maastricht University New Zealand Elisabeth McDonald Canterbury University Norway Andrea Gustaffson Masters Student at University of Oslo Norwa Lars Andersen Masters Student at University of Oslo Poland Michal Wojewoda University of Lodz Roumanie Cristina Nicolescu Universitatea din Bucureşti Roumanie Daniela-Anca Deteșeanu Universitatea din Bucureşti Serbia Melanija Jančić Univerzitet Educons Sweden Laura Carlson Stockholm University Taiwan Yi-Chien Chen Shih Hsin University Turkey Yalçın Tosun Bilgi University Turkey Candan Yasan Tepetaş Bilgi University United States Peter W. Schroth Practising Lawyer United States Laura Erickson-Schroth Columbia University Medical Center United States Linda Foster Practising Lawyer United States Alexis Burgess Practising Lawyer

42 Annex 2. Guidelines for the elaboration of National Reports on the Civil Status of Transgender and Transsexual persons

XXth International Congress of Comparative Law Fukuoka, Japan 2018

Subject: “Conditions of the recognition of the civil status of transsexual and transgender people”

Guidelines for National Reporters

I. Objectives

1. Produce an account of the current state of affairs regarding the legal recognition of trans person’s sexual identity.

2. Explain the evolution of the legal regulation of sexual identity––how has it evolved and why (in terms of types of regulations, discursive practices, and actors)?

Particularly:

a. Analyze the comparative presence of male-to-female trans persons with respect to female-to-male trans persons in the legal regulations.

b. Analyze the continuing pathologization of trans persons’ gender identity, and the role of such pathologization in the evolution of legal regulations. (By pathologization we mean the categorization of trans persons’ gender identity as a mental disorder, i.e. gender dysphoria or gender identity disorder.)

c. Analyze the impact of international human rights standards and dialogues between courts––both international/domestic and domestic/domestic––in the evolution of the legal regulation of gender identity.

d. Analyze the presence or absence of trans activists in the evolution of the legal regulation of gender identity.

3. Understand the relationship between the legal advancements regarding trans persons’ sexual identity, same-sex marriage and/or civil unions for same-sex partners, and other gender and sexuality claims introduced into legal systems by gay and lesbian, as well as feminist, activists.

4. Analyze what is at stake in the legal regulation of gender identity––why is it so important? What are the ramifications in the legal system of the legal recognition of trans persons’ sexual identity? What are the ways in which the law uses the sex/gender/sexual identity categories?

43 II. Questions to be addressed by the national reporters

In your report, please address each of the following questions, derived from the above objectives. Please take into account international, constitutional, legal (civil, family, criminal, labor…), administrative, and judicial regulations; be as specific as possible (providing the quotations of the legal and doctrinal sources and, if available, the internet link); and provide any context-information needed to understand your report.

1. Legal framework: Please briefly explain the legal system used in your country. Include information about the type of Constitution (written; unwritten; modifiable by a Constitutional Tribunal, by Supreme Court decisions, by Congress only; etc.), the sources of law, and any institutional arrangements necessary to understand the legal regulation of trans persons’ sexual identity. Please do not use more than one page to provide your legal framework.

2. Regulation of the civil status: Please briefly explain the way in which the civil status is regulated in your country, as well as the institutions charged of maintaining it. Please consider the following questions––which are not exhaustive: Is sex a category of the civil status? How is the civil status determined? What is/are the institution(s) in charge of maintaining the civil status? How is the civil status proved? What is/are the way(s) to change/correct the civil status?

3. Particular regulations for trans persons: Does your country have a particular regulation for trans persons? What is the language used in your country (trans, transsexual, transgender, drag, transvestite…) and in which rules are the definitions included? Does your country have any legal rule that prohibits discriminating based on gender identity or sexual orientation?

4. Regulation of the name (please provide the general information needed about the way in which the legal name is regulated in your country): A) Is a trans person allowed to change his/her legal name to one according to its sexual identity? How many times? What is the procedure? What are the requisites to obtain it? B) What were the arguments to allow or reject such possibility? C) Which were the actors involved in the debate (LGBT organizations, trans organizations, legal NGOs, legal clinics, coalitions of different actors, members of political parties…)? Which of those were in favor? Which against?

5. Regulation of the sexual identity: A) Is a trans person allowed to change his/her legal sex to one according to its sexual identity? How many times? What is the procedure? What are the requisites to obtain it (i.e. age, martial status, children, sex-reassignment surgery, diagnosis of gender dysphoria, hormonal treatment, witnesses, sworn declaration of the will of living as male/female…)? B) What were the arguments to allow or reject such possibility? C) Which were the actors involved in the debate (LGBT organizations, trans organizations, legal NGOs, legal clinics, coalitions of different actors, members of political parties…)? Which of those were in favor? Which against?

6. Gender-neutral and/or “third-sex”: A) Is there a gender-neutral and/or “third-sex” possibility in your country? What is the procedure? What are the requisites to obtain it?

44 B) What were the arguments to allow or reject such possibility? C) Which were the actors involved in the debate (LGBT organizations, trans organizations, legal NGOs, legal clinics, coalitions of different actors, members of political parties…)? Which of those were in favor? Which against?

7. Access to treatments: Does your country’s health system provide hormonal treatments to trans persons? Does it provide sex reassignment surgeries? What are the requirements to obtain them? What is the role played by the diagnosis of gender dysphoria in access to health treatments?

8. Current discussion: Is your country discussing future rules on the regulation of trans persons’ name or sexual identity? If so, please explain the type of regulation being proposed, at what level (constitutional, legislative, administrative, judicial), in what stage the discussion is at, what are the chances of being passed, and when, what are the arguments being discussed, and what are the actors involved in the debate.

9. Gays & lesbians and trans: Please elaborate on the relationship between gay & lesbian and trans legal advancements in your country. Does your country have same-sex marriage and/or civil unions for same-sex partners? Did such advancements came before or after the legal advancements regarding trans persons’ civil status? What other rights have been recognized to LGBT persons? Did they came before or after the legal advancements regarding trans persons’ civil status?

10. Stakes in sex: Analyze what is at stake in your country in the legal regulation of sex identity. What are the ramifications in your legal system of the legal recognition of trans persons’ sexual identity? What are the ways in which law uses sex/gender/sexual identity as categories in your country? Some areas in which this might be relevant are: employment, military service, marriage, adoption, education, pensions, access to health services, etc.

11. Intersex persons: Is there any legal regulation on intersex persons in your country? If so, please provide the information following the above questions.

12. Additional comments: Please feel free to include additional comments on the topic that you consider relevant to the specific situation of your country.

Terminological note:

Since the discussion on trans persons’ rights is surrounded by a complex and quickly evolving terminological struggle, we adopt the following definitions for this questionnaire. As recognized in the Yogyakarta Principles, sexual identity or gender identity “is understood to refer to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms.” A different, but connected category, sexual orientation “is understood to refer to each person’s

45 capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender.” In this sense, trans persons (by opposition to cisgender persons) are those people whose gender identity doesn’t correspond to that assigned to them at their birth. Further, since sexual identity is not the same as sexual orientation, trans persons can be assexual, straight, gay or lesbian. Finally, since the transitioning processes of trans persons do not follow the same path––as they depend on each person individual experience in a given social context––, we use trans as the umbrella term that includes others such as transsexual, transgender, transvestite, drag, etc.

III. Due date and format for submission of the report

We are hoping to have feedback from you (your national reports) as soon as June 2017 and in August at the latest. Should you have your reports ready before that please do not hesitate to send them.

We have no format for now as the national reports themselves will not be published as submitted. However, it would make our job easier if you used footnotes instead of endnotes.

Please do not hesitate to contact me should you have any questions or suggestions:

Isabel C. Jaramillo Full Professor of Law, Universidad de los Andes Email: [email protected]

Or my assistant in this project:

Emilio Lehoucq Research Assistant, Universidad de los Andes Email: [email protected]

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