THE EVOLUTION OF ABUSIVE REQUIREMENTS FOR GENDER RECOGNITION IN THE COUNCIL OF EUROPE’S MOST PROGRESSIVE MEMBER STATES
Word count: 57,242
Sarah Schoentjes Student number: 01204028
Supervisors: Prof. Dr. Eva Brems, Mr. Pieter Cannoot
A dissertation submitted to Ghent University in partial fulfilment of the requirements for the degree of Master of Laws.
Academic year: 2018 - 2019
“It is some kind of hell to be forced to choose one irreplaceable thing over another.” – Black Sails, XXXII Table of Contents
1. Introduction ...... 7
2. Theoretical concepts ...... 11 a. Background and terminology ...... 11 b. Legal concepts ...... 14
3. The right to legal gender recognition ...... 20 a. Criticisms against gender recognition ...... 20 i. Religious criticism ...... 20 ii. Politically conservative criticism ...... 24 iii. Trans-Exclusionary Radical Feminists ...... 29 iv. Progressive criticism: Is legal gender recognition enough? ...... 32 b. Countering the criticism against gender recognition ...... 37 i. Countering religious criticism ...... 37 ii. Countering politically conservative criticism ...... 38 iii. Countering feminist criticism ...... 46 iv. The necessity of gender recognition based on self-determination when working towards the abolition of gender registration ...... 55 c. The origin of a right to legal gender recognition in the Council of Europe ...... 58
4. The evolution of abusive requirements for gender recognition in the Council of Europe’s most progressive Member States: defining the scope of the research domain ... 64 a. Which Council of Europe Member States can be considered the “most progressive” regarding gender recognition? ...... 64 b. Driving factors for the evolution of abusive requirements for gender recognition ... 67
5. The evolution of abusive requirements for gender recognition in the Council of Europe’s most progressive Member States: an analysis ...... 71 a. International soft law ...... 71 i. Yogyakarta Principles ...... 71 ii. United Nations ...... 74 iii. Regional Human Rights Systems ...... 83 b. International trend towards depathologisation ...... 94 c. Jurisprudence of the European Court of Human Rights ...... 102 i. Sterilisation ...... 102 ii. Procedures related to medical transition ...... 108
3 iii. Mandatory diagnosis of transsexuality/gender identity disorder/gender dysphoria 115 iv. Impact on civil status ...... 117 v. Impact on parental rights ...... 121 vi. Real Life Experience ...... 124 vii. Age restrictions ...... 125 d. Argentina: the first state to adopt national legislation based on self-determination 126 e. National legislation in the most progressive Member States of the Council of Europe 130 i. Denmark ...... 130 ii. Malta ...... 135 iii. Ireland ...... 139 iv. Norway ...... 144 v. Belgium ...... 148 vi. Portugal ...... 154 vii. Luxembourg ...... 158
6. Discussion of the results ...... 163 a. Evaluation of the national legislations ...... 163 i. Mandatory waiting periods ...... 163 ii. Gender recognition for trans* minors ...... 164 iii. Lack of protection for intersex persons ...... 167 iv. Lack of gender recognition for non-binary persons ...... 168 v. The impossibility to easily amend one’s legal gender more than once ...... 169 b. Factors that influence the removal of abusive requirements for gender recognition from national legislation ...... 171 c. Towards the future ...... 181
7. Conclusion ...... 184
8. Bibliography ...... 187 a. Legislation and preparatory documents ...... 187 i. Argentina ...... 187 ii. Denmark ...... 187 iii. Malta ...... 187 iv. Ireland ...... 187 v. Norway ...... 187
4 vi. Belgium ...... 188 vii. Portugal ...... 188 viii. Luxembourg ...... 188 b. Case Law ...... 189 i. ECtHR ...... 189 ii. ESC ...... 190 iii. IACtHR ...... 190 c. Soft Law ...... 190 i. Yogyakarta ...... 190 ii. UN ...... 190 iii. Council Of Europe ...... 191 iv. Others ...... 191 d. Doctrine ...... 192
5 Acknowledgments
I would like to extend my sincerest thanks to my director, Prof. Dr. Eva Brems, and my commissary, Mr. Pieter Cannoot. Their understanding, patience and support have been invaluable to me. The conversations we had about the topic of this dissertation as well as their written comments and feedback were fascinating and provided me with precious new insights, which were instrumental to my study.
My thanks also go to my family – Pierre Schoentjes, Katrien Lievois, Marion Schoentjes and Yvette Merchiers – for listening to my impassioned ranting about my subject, talking me through any issues I encountered – whether about the content of my dissertation or my anxieties about my ability to write it – and graciously putting up with the fact that every other word that came out of my mouth related to my dissertation.
Last but anything but least, I am incredibly grateful to my partner, Lisa-Lou Péchillon. Without her genuine interest in and understanding of the subject, exceedingly useful editing skills, insightful comments about any incoherencies in my dissertation, unwavering affection and support, and insistence that I please get some sleep, this dissertation would likely not have been written.
6 1. Introduction
Trans* persons have always existed, and have been recognised as such in quite a few cultures throughout history, such as the Indian hjiras1 and the American First Nations’ two-spirits2. In most of Western history, however, they have not had much visibility or respect. This has changed in recent years, when more attention has been given to trans* persons and their rights. There are more trans* persons in the public eye and in the media and trans* activism has risen. Increased visibility does not, however, automatically lead to heightened acceptance. The rights of trans* persons are currently subject to intense societal debate, and progress for trans* persons is never smooth or painless.3
Nonetheless, trans* persons’ specific needs are granted more consideration in fields such as medicine, education and law. An important example of this is the fact that trans* identities used to be considered a mental illness. Transsexuality/Gender Identity Disorder was included in the Diagnostic Statistics Manual until its fourth edition, but the DSM-V has removed transsexuality/Gender Identity Disorder from its list of mental illnesses, replacing it with “gender dysphoria”. 4 The World Health Organisation (hereafter: WHO) also considered “transsexuality” a mental illness until 2018, when the eleventh International Classification of Diseases replaced it with “gender incongruence”.5 This points to a trend of depathologisation of trans* persons6 – a trend that also has its impacts in the legal field. Indeed, this recognition of trans* persons’ need to be treated in accordance with their gender has led to changes in law. Gender, for better or for worse, is still tied into law, and fully recognising a trans* person’s gender also means recognising it legally.
1 Anuja Agrawal, ‘Gendered bodies: The case of the "third gender" in India’ (1997) 31 Contributions to Indian 2 Genny Beemyn, ‘Transgender history in the United States’ in Laura Erickson-Schroth (ed), Trans Bodies, Trans Selves (Oxford University Press 2014) 3 European Union Agency for Fundamental Rights, European Union lesbian, gay, bisexual and transgender survey (2011) 4 Jens T. Theilen, ‘Depathologisation of Transgenderism and International Human Rights Law’ 14 Human Rights Law Review 327, p.329 5 WHO, ‘ICD-11: Classifying disease to map the way we live and die’ (18 June 2018)
7 In the vast majority of states where such gender recognition is possible, it is unfortunately still tied to a variety of conditions and requirements.7 Many of those requirements, such as mandatory sterilisation, diagnosis of gender identity disorder, mandatory medical treatments, obligatory divorce, etc., can be construed as human rights abuses in themselves.8 Despite the trend towards the depathologisation of trans* persons, those requirements are also linked to the prevalent stereotype of trans* persons as confused, delusional or even mentally ill9; the genuine character of their gender identity is tested through their willingness to make significant sacrifices for its recognition.
This leads to a situation where trans* persons are forced to, in effect, choose between two human rights abuses: submitting to extreme intrusion on their private lives and/or physical integrity or renouncing gender recognition and carrying the consequences thereof on a daily basis. The only way to avoid human rights abuses is consequently to eliminate those requirements for gender recognition. This solution has, as we will see, been recommended by trans* organisations and international human rights mechanisms alike, and a few countries have taken notice, abolishing all requirements for gender recognition and basing their gender recognition procedures mainly on self-determination.
This does, of course, pose the question of how this evolution came to be. Which factors led to the abolition of abusive requirements for gender recognition and the creation of gender recognition procedures based on self-determination? If we consider this the most desirable outcome for trans* persons – a question that I will also examine in this study – how can we replicate such an evolution in other countries? Which factors are determining, how do they interact with each other, and what should we therefore focus on?
Law and society are intrinsically linked and never cease influencing each other. In that sense, when a topic such as this one is thrust into the public eye, it is the task of the law to take notice of it, and to act where appropriate to help create a better society. In
7 Commissioner for Human Rights of the Council of Europe, Human Rights and Gender Identity (2009), p.7 8 Ibid., p.8 9 Laura Falco, ‘The Bad, the Ugly, and the Uglier: How Fear and Misconceptions Are Flushing Away Equal Rights and Treatment for Transgender People’ 5 Tennessee Journal of Race, Gender, & Social Justice 142, p.148
8 that regard, it is legally relevant to survey the state of trans* rights and to attempt to map their evolution, in the hope of finding a normative legal path to improve these rights where needed.
In order to achieve this goal, this study will be a literature review in which I will analyse national legislation and its preparation, jurisprudence of the European Court of Human Rights (hereafter: ECtHR), international soft law, and doctrine. I will then draw conclusions from these documents to attempt to establish a pattern of interaction between them.
I will start by establishing the terminology I am working with, notably by defining “gender recognition” and “abusive requirements for gender recognition”. I will then study the criticism against gender recognition based on self-determination, coming from political conservatives, religious conservatives and trans-exclusionary feminists, but also from within the trans* community itself. However, many people do argue that gender recognition is absolutely essential – I will therefore also explore those arguments.
Determining the scope of my subject will require me to select the States whose legislation I will study to examine the evolution towards the elimination of abusive requirements in gender recognition procedures. I will, of course, closely study the national legislation of these States. In doing so, I will attempt to determine whether these States have completed the evolution towards gender recognition based on self- determination or if there are still issues to be resolved.
I will also have to establish the driving factors within this evolution. Having done this, I will analyse all those factors separately, mapping the evolution within each factor. This will be the bulk of this study. During this process, I will ascertain whether those factors influence each other by determining which documents reference each other. Based on the answers to the previous questions, I will attempt to establish a pattern in the interactions and study whether certain factors have a higher influence on national legislation or if, on the contrary, this evolution is more of an interactive process.
Lastly, I will combine my findings based on the two previous questions in order to better understand what this evolution might need in the future. Should we prioritise
9 certain influencing factors? Are there blatant issues that need to be resolved? Which further studies might be necessary in order to achieve an even better insight in this evolution? By answering those questions, I hope to make use of the descriptive elements of my study in order to map a normative path that might help improve the rights of trans* persons.
10 2. Theoretical concepts
a. Background and terminology
The terminology around the trans* community tends to change and shift through the years. Therefore, in order to achieve optimal clarity, it is important to adequately define the terminology I will be using.
Sex refers to a set of combined physical and biological characteristics such as chromosomes, primary sex characteristics and secondary sex characteristics, often divided into “male” and “female”.10 Gender is often, but not always, tied to sex.11 It is expressed in one's experience and feelings about one's body, personality, and place in society, but also in other aspects, such as speech, clothing and behaviour.12 Gender identity refers to a person's personal experience of their gender.13 Gender presentation or gender expression denotes the way a person expresses their gender, often in external characteristics such as clothing and mannerisms.14
Gender dysphoria includes physical dysphoria and social dysphoria. Physical gender dysphoria is a strong feeling of unease or suffering caused by the physical discrepancy between one's own body and the physical appearance that society associates with one’s gender identity.15 It can be alleviated by adapting one’s gender expression and by medically transitioning. (Physical) gender dysphoria used to be considered the constituent element of “transsexuality” and “Gender Identity Disorder”, which were considered mental illnesses, but “gender dysphoria” has since replaced those terms in psychiatric literature.16
10 Human Rights Centre of Ghent University, Third Party Intervention in the Case of R.L. & P.O. v. Russia (2018), p.2 (as we will see later, this division between male and female sex is artificial and erroneous) 11 In this regard, see: Dylan Vade, ‘Expanding Gender and Expanding the Law: Toward a Social and Legal Conceptualization of Gender That Is More Inclusive of Transgender People’ 11 Michigan Journal of Gender & Law 253 12 Human Rights Centre of Ghent University, Third Party Intervention in the Case of R.L. & P.O. v. Russia, p.2 13 Ibid., p.2 14 Ibid., p.2 15 Skylar Davidson, ‘Gender inequality: Nonbinary transgender people in the workplace’ [2016] Cogent Social Sciences, p.3 16 Ibid., p.3
11 Social gender dysphoria refers to the unease or suffering caused by being perceived by others as a gender one does not identify as. Medical transition may not be needed to alleviate social dysphoria; social transition may suffice.17
All trans* persons, whether transsexual, transgender or non-binary, can experience gender dysphoria – whether social or physical – but not all do.18 Some trans* persons may experience physical dysphoria but not take any steps to medically transition, for health reasons or financial reasons, for example. A trans* person who does not experience physical dysphoria may nonetheless decide to medically transition, because society accepts them more easily and treats them better, because the State requires it in order to grant them gender recognition, or for any other reason.19 Medical transition refers to undergoing medical treatments that alter physical characteristics, alleviating the discrepancy between one’s gender and the physical appearance that society associates with that gender.20 Social transition instead denotes adapting one’s gender expression, name, pronouns, etc., so that society interacts with the person concerned in accordance with their gender identity.21
Trans* is used here as an umbrella term, with the purpose of being as inclusive as possible. When I mention trans* persons, I mean the entire trans* community or a member of that community whose more specific gender identity and related characteristics are irrelevant to the present context. The term “trans*” is inclusive because the asterisk can be replaced by other words, creating terms such as “transgender” or “transsexual”.
A transgender person is a person whose gender does not correspond to the sex that was assigned to them at birth. This study defines “transgender persons” specifically as persons who experience a strong discrepancy between their gender and the sex assigned to them at birth, but do not undergo (all) treatments associated with medical
17 Ibid., p.3 18 Ibid., p.4 19 Human Rights Centre of Ghent University, Third Party Intervention in the Case of R.L. & P.O. v. Russia, p.2 20 Davidson, ‘Gender inequality: Nonbinary transgender people in the workplace’, , p.3 21 Ibid., p.3
12 transition, whether by choice or for other reasons, such as health issues or financial concerns.22
A transsexual person, according to the definition used in this study, is a person who experiences the same discrepancy between their gender and the sex assigned to them at birth but who does choose to undergo all treatments associated with medical transition, such as hormone replacement therapy (hereafter: HRT), mastectomy or breast implants, and genital surgery.23
Trans* persons are not always men or women. Many of them (according to a recent Belgian study, about 2% of the general population may be non-binary; in this study, this represents about 75% of the trans* population24) are non-binary: their gender can lie somewhere in between “man” and “woman”, be entirely removed from this spectrum, or even simply be inexistent.25 A person who is not trans* and does not experience a discrepancy between one’s gender and one’s sex as assigned at birth is called a cisgender person.26
As shown by the existence of non-binary persons, gender is not binary. There is, however, a common misconception that even if gender is not binary, sex is. According to this assumption, there are only two sexes – “male” and “female”. This is also erroneous: intersex persons exist, and make up about 1.7% of the population.27 Intersex persons are persons whose physical and biological characteristics cannot be neatly fitted into “male” or “female” categories.28 This may mean that they have ambiguous genitals, a fact that is often noticed at birth and leads to highly invasive surgeries being performed on
22 Human Rights Centre of Ghent University, Third Party Intervention in the Case of R.L. & P.O. v. Russia, p.2 23 Ibid., p2 24 Eva Van Caenegem, Katrien Wierckx, Els Elaut, Ann Buysse, Alexis Dewaele, Filip Van Nieuwerburgh, Griet De Cuypere and Guy T'Sjoen, ‘Prevalence of Gender Nonconformity in Flanders, Belgium’ 44 Archives of Sexual Behavior 1281, p.24 (This study classifies 2% of the population as “gender ambivalent” (non-binary trans* persons) and 0.6% as “gender incongruent” (binary trans* persons). This brings us to a total of about 2.6% of trans* persons in the general population. 2% is, in turn, about 75% of 2.6%.) 25 Human Rights Centre of Ghent University, Third Party Intervention in the Case of R.L. & P.O. v. Russia, p.2; see also Jens T. Theilen, ‘Beyond the gender binary: rethinking the right to legal gender recognition’ European Human Rights Law Review 249 and Christina Richards, Walter Pierre Bouman, Leighton Seal, Meg John Barker, Timo O. Nieder and Guy T'Sjoen, ‘Non-binary or genderqueer genders’ 28 International Review of Psychiatry 95 26 Human Rights Centre of Ghent University, Third Party Intervention in the Case of R.L. & P.O. v. Russia, p.3 27 Melanie Blackless, Anthony Charuvastra, Armanda Derryck, Anne Fausto-Sterling, Karl Lauzanne and Ellen Lee, ‘How Sexually Dimorphic Are We? Review and Synthesis’ 12 American Journal of Human Biology 151, p159 28 Ibid., p.159; see also Wendy O'Brien, ‘Can International Human Rights Law Accommodate Bodily Diversity?’ 15 Human Rights Law Review 1 and Darra L. Clark Hofman, ‘Male, Female, and Other: How Science, Medicine and Law Treat the Intersexed, and the Implications for Sex-Dependent Law’ [2012] 21 Tulane Journal Of Law & Sexuality
13 infants in order to more easily fit them into a “male” or “female” category, further procedures often lasting well into childhood and even adolescence.29 Intersex persons may also have a variety of less visible characteristics: very high or low production of or sensitivity to certain sex hormones, congenital absence or presence of certain internal organs, genetic mutations, etc.30 The gender identity of intersex persons varies in relation to their physical characteristics and assigned sex at birth.31
b. Legal concepts
Since the subject of this study is “the evolution of abusive requirements for gender recognition”, it is essential to properly define “gender recognition” as well as what constitutes an “abusive requirement”.
Gender recognition means that the State adapts trans* persons’ official identity documents to reflect their gender. This might mean changing a gendered name, adapting a gender marker, or modifying a social security number in which a number denotes the person’s legal gender.32 Holning Lau, in a thorough analysis, considers that gender recognition is a human right derived from four well-recognised other human rights: personal autonomy and self-determination, informational privacy, health, and bodily integrity.33 Firstly, the right to personal autonomy and self-determination can be found, for example, in Article 22 of the Universal Declaration of Human Rights (hereafter: UDHR), which states that individuals have a right to the “free development of [their] personality”. Gender is considered an essential element of persons’ identity, and is therefore related to this right.34 Secondly, the right to informational privacy, or the right to confidentiality, is enshrined in Article 17 of the International Covenant on Civil and Political Rights (hereafter: ICCPR), which protects persons against “arbitrary and
29 O'Brien, ‘Can International Human Rights Law Accommodate Bodily Diversity?’, ; Clark Hofman, ‘Male, Female, and Other: How Science, Medicine and Law Treat the Intersexed, and the Implications for Sex-Dependent Law’, 30 O'Brien, ‘Can International Human Rights Law Accommodate Bodily Diversity?’, ; Clark Hofman, ‘Male, Female, and Other: How Science, Medicine and Law Treat the Intersexed, and the Implications for Sex-Dependent Law’, 31 Clark Hofman, ‘Male, Female, and Other: How Science, Medicine and Law Treat the Intersexed, and the Implications for Sex-Dependent Law’, , p.20 32 Holning Lau, ‘Gender Recognition as a Human Right’ in Andreas von Arnauld, Kerstin von der Decken and Mart Susi (eds), The Cambridge Handbook on New Human Rights: Recognition, Novelty, Rhetoric (Cambridge University Press edn), p.1 33 Ibid., p.2 34 Ibid., p.2-4
14 unlawful interference in [their] privacy”. As explained above, being trans* is information that a person has a right to keep private, since being forced to reveal it exposes them to discrimination and persecution.35 Thirdly, the right to health is relevant to gender recognition for some, but not all trans* persons. Indeed, some trans* persons perceive gender dysphoria to be related to their health, and gender recognition can alleviate dysphoria.36 The right to bodily integrity, lastly, relates directly to abusive requirements for gender recognition as expanded upon below.37
Indeed, the vast majority of national legislations that allow gender recognition make it dependent on fulfilling a variety of conditions. What, then, makes those requirements abusive? According to international soft law, abusive requirements for gender recognition are requirements that force a person to choose between one human right (gender recognition and the associated protection from discrimination and other human rights violations) and another (personal autonomy, respect for private life, physical integrity, etc.).38
International soft law distinguishes six to seven specific abusive requirements: mandatory sterilisation, a mandatory diagnosis of gender dysphoria, mandatory medical treatments such as hormones or surgery, mandatory divorce, loss of parental rights, mandatory waiting times and “real life experience,” and in some cases, age requirements.39
Mandatory sterilisation is the first of these abusive requirements. In States that impose this condition, a person who wants to be granted gender recognition first has to prove that they have undergone a treatment that has made them sterile.40 This highly
35 Ibid., p.4-5 36 Ibid., p.5-6 37 Ibid., p. 6-7 38 Committee of Ministers of the Council of Europe, Recommendation on measures to combat discrimination on grounds of sexual orientation or gender identity (CM/Rec(2010)5, 2010); Victor Madrigal-Borloz, Report by the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity to the General Assembly (A/73/152, 2018); OHCHR, Living Free and Equal: What States Are Doing To Tackle Violence And Discrimination Against Lesbian, Gay, Bisexual, Transgender And Intersex People (2016) 39 Commissioner for Human Rights of the Council of Europe, Human Rights and Gender Identity; Madrigal- Borloz, Report by the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity to the General Assembly, §28; Juan E. Méndez, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment to the UNHRC (A/HRC/31/57, 2016), §49; UN High Commissioner for Human Rights, Report to the UNHRC on Discrimination and violence against individuals based on their sexual orientation and gender identity (A/HRC/29/23, 2015), §70 40 Commissioner for Human Rights of the Council of Europe, 2009 #3}; Madrigal-Borloz, Report by the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity to
15 invasive requirement is tied to the prevalent stereotype that trans* persons are too “abnormal”, too “delusional”, too “mentally ill” to be allowed to bring children into this world.41 This rests on two harmful assumptions: firstly, the idea that being trans* is a mental illness that can be passed on, which should be avoided at all costs; secondly, the idea that trans* persons are unfit to raise children and that they would bring their children psychological harm.42 Consequently, trans* persons are expected to submit to an extreme violation of their physical integrity in order to obtain access to gender recognition.
A related abusive requirement is the obligation to undergo a variety of medical treatments related to medical transition. The State may make it mandatory to undertake hormone replacement therapy and/or to undergo several surgeries, such as mastectomy, breast augmentation and genital surgery. 43 This requirement ignores transgender persons, who have no desire to undergo (all of) these treatments, as well as all trans* persons who are not able to (fully) medically transition. Making such treatments mandatory also infringes upon trans* persons’ physical integrity.
A third medical requirement is the requirement of a mandatory diagnosis of “transsexuality”, “Gender Identity Disorder” or “gender dysphoria”. This rests upon and reinforces the stereotype of trans* persons as mentally ill, confused and delusional.44 Trans* persons can, allegedly, not be trusted to know their own gender; therefore, (cisgender) “specialists” must confirm that they truly are trans*. This strongly limits a person’s right to private life and autonomy.45 This requirement ignores the fact that much of the scientific field no longer considers being trans* a mental illness, and that a the General Assembly, §28; Méndez, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment to the UNHRC, §49; UN High Commissioner for Human Rights, Report to the UNHRC on Discrimination and violence against individuals based on their sexual orientation and gender identity, §70 41 Carlos A. Ball, ‘Transgender Parenthood: Gender Does Not Make a Parent’ in Carlos A. Ball (ed), The Right To Be Parents: Lgbt Families And The Transformation Of Parenthood (NYU Press 2012), p.8; see also Kari J. Carter, ‘The Best Interest Test and Child Custody: Why Transgender Should Not Be a Factor in Custody Determinations’ (2006) 16 Health Matrix: The Journal of Law-Medicine 42 Ball, ‘Transgender Parenthood: Gender Does Not Make a Parent’, p.8 43 Commissioner for Human Rights of the Council of Europe, 2009 #3}; Madrigal-Borloz, Report by the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity to the General Assembly, §28; Méndez, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment to the UNHRC, §49; UN High Commissioner for Human Rights, Report to the UNHRC on Discrimination and violence against individuals based on their sexual orientation and gender identity, §70 44 Stephanie Beryl Gazzola and Melanie Anne Morrison, ‘Cultural and Personally Endorsed Stereotypes of Transgender Men and Transgender Women: Notable Correspondence or Disjunction?’ 15 International Journal of Transgenderism 76, p.81-82 45 Theilen, ‘Depathologisation of Transgenderism and International Human Rights Law’, , p.336
16 diagnosis is therefore unnecessarily pathologising, as well as the fact that not all trans* persons experience gender dysphoria.46
Another condition for gender recognition, and often even for accessing any of the above medical requirements, is the so-called “Real Life Experience”. Trans* persons are expected to spend a certain amount of time (often three months to two years) “living as their gender” to prove that they can “function in society as this gender”.47 This relies on blatant gender stereotyping, which States have an obligation to eradicate under the Convention for the Elimination of Discrimination Against All Women.48 Furthermore, it exposes trans* persons to discrimination: presenting as their gender while their official documentation still marks them as another gender outs them as trans* every time they have to present their official documentation, which makes them vulnerable to discriminatory and transphobic practices.
Abusive requirements for gender recognition also have an impact on civil status. In countries where same-gender marriage is not yet possible, this can mean obligatory divorce. Married trans* persons are often forced to dissolve their marriage as it legally changes from an opposite-sex partnership to a same-gender one. In countries where same-gender civil partnerships exist, this means that their marriage will be converted into a civil partnership. 49 In countries where same-gender partnerships are not recognised, the trans* person would be forced to divorce their partner.50 This means that trans* persons are forced to choose between legal recognition of their identity and legal recognition of their relationship – two essential aspects of the right to private life.
46 Ibid., p.336 47 Commissioner for Human Rights of the Council of Europe, 2009 #3}; Madrigal-Borloz, Report by the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity to the General Assembly, §28; Méndez, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment to the UNHRC, §49; UN High Commissioner for Human Rights, Report to the UNHRC on Discrimination and violence against individuals based on their sexual orientation and gender identity, §70 48 Art. 5 CEDAW 49 Commissioner for Human Rights of the Council of Europe, 2009 #3}; Madrigal-Borloz, Report by the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity to the General Assembly, §28; Méndez, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment to the UNHRC, §49; UN High Commissioner for Human Rights, Report to the UNHRC on Discrimination and violence against individuals based on their sexual orientation and gender identity, §70 50 Commissioner for Human Rights of the Council of Europe, 2009 #3}; Madrigal-Borloz, Report by the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity to the General Assembly, §28; Méndez, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment to the UNHRC, §49; UN High Commissioner for Human Rights, Report to the UNHRC on Discrimination and violence against individuals based on their sexual orientation and gender identity, §70
17 Since family law still relies on the concepts of “fatherhood” and “motherhood” rather than “parenthood”, gender recognition is also made very difficult for trans* persons who have children by making it dependent on conditions that affect their parental status and parental rights. It might be impossible for them to be legally recognised as the father of their child when they were originally considered their mother, or vice-versa. Consequently, if they want to keep their legal status as their child’s parent, they have to submit to a legal status that invalidates their gender.51 In extreme cases, they might even lose certain parental rights.52 This is, again, rooted in the idea that trans* persons are unfit to raise children, and strongly impacts their private life.
Lastly, gender recognition is often subject to age restrictions. Sometimes, this means that trans* persons older than a certain age are not granted gender recognition.53 More commonly, however, it means that minors under a certain age are refused access to gender recognition. Elements of gender recognition such as a name change or a gender marker change may be restricted to trans* persons older than twelve, sixteen or even eighteen.54 It is, however, far from certain that these restrictions comply with the best interests of the child.55 This question must certainly be examined before applying such age restrictions.
The alternative to such abusive requirements to gender recognition is a gender recognition procedure based entirely on self-determination. Self-determination refers to the right to free development of one’s own identity and personality56 – the right to freely choose the options and circumstances that give meaning to one’s existence, in
51 Commissioner for Human Rights of the Council of Europe, 2009 #3}; Madrigal-Borloz, Report by the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity to the General Assembly, §28; Méndez, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment to the UNHRC, §49; UN High Commissioner for Human Rights, Report to the UNHRC on Discrimination and violence against individuals based on their sexual orientation and gender identity, §70 52 Commissioner for Human Rights of the Council of Europe, 2009 #3}; Madrigal-Borloz, Report by the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity to the General Assembly, §28; Méndez, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment to the UNHRC, §49; UN High Commissioner for Human Rights, Report to the UNHRC on Discrimination and violence against individuals based on their sexual orientation and gender identity, §70 53 See, in this regard: Schlumpf v. Switzerland App. no. 29002/06, 8 January 2009 (ECtHR) 54 Madrigal-Borloz, Report by the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity to the General Assembly, §35 55 Ibid., §35 56 Lau, ‘Gender Recognition as a Human Right’
18 accordance with one’s own choices and convictions57. Such a procedure recognises that no one knows your gender better than yourself, and allows trans* persons the autonomy to determine for themselves whether, when and how they access gender recognition. This avoids any disproportionate infringement of the right to private life, of which gender identity is an essential aspect. Gender recognition procedures based on self- determination should be administrative, since judicial procedures limit true self- determination by granting a judge authority over a person’s identity.58
57 Atala Riffo and daughters v. Cile, 24 February 2012 (IACtHR), §136 58 Committee of Ministers of the Council of Europe, Recommendation on measures to combat discrimination on grounds of sexual orientation or gender identity
19 3. The right to legal gender recognition
a. Criticisms against gender recognition
Despite the fact that gender recognition is a right derived from other well-recognised rights, many persons argue that this right should be overridden by a variety of other considerations. 59 States can, of course, give ear to these considerations, and subsequently decide not to implement gender recognition procedures, or to limit them through abusive requirements.
For these reasons, it is important to study those arguments and to ascertain whether they can truly override the right to gender recognition and self-determination. In order to do this, I will examine these arguments by grouping them according to the factions that express them most consistently: religious conservatives, political conservatives, and anti-trans* feminists. I will then counter these considerations in the same order as I studied them.
I will also be considering progressive arguments against gender recognition, often expressed by trans* persons themselves. Some persons feel that gender recognition procedures are too limited, and that true progress requires total abolition of gender registration. After considering these arguments, I will expand upon the as yet present necessity for gender recognition based on self-determination even if abolition of gender registration is indeed the ultimate goal.
i. Religious criticism
It would be preposterous to state that all religions or all religious persons are opposed to trans* rights. Many religious organisations have aligned themselves with trans* persons and play an integral role in their support, particularly in the support of religious trans* persons.60 Nonetheless, a significant proportion of the opposition to gender recognition is backed by religious figureheads and communities (mostly of Abrahamic religions, in the West), who use religious arguments to support their position.
59 For a thorough analysis of some of these considerations, see Lau H, ‘Gender Recognition as a Human Right’ in von Arnauld A, von der Decken K and Susi M (eds), The Cambridge Handbook on New Human Rights: Recognition, Novelty, Rhetoric (Cambridge University Press edn) 60 See UN Special Rapporteur on Freedom of religion or belief, Special Rapporteur’s Compilation of Articles on Freedom of religion or belief and Sexuality (2017)
20 Christian opposition to gender recognition is often based on the Old Testament, which states: “So God created mankind in his own image, in the image of God he created them; male and female he created them.”61 To deviate from one’s sex assigned at birth is therefore to deviate from God’s plan for oneself.62 Since the Christian Old Testament is essentially the same text as the Jewish Tanakh, Orthodox Judaism disapproves of trans* identity on the same grounds.63 Orthodox Judaism interprets the provision that “[a] woman must not wear men’s clothing, nor a man wear women’s clothing, for the Lord your God detests anyone who does this64” to proscribe trans* identity, and the prohibition of “anything which is mauled, crushed, torn or cut65” to forbid sex reassignment surgery. Islamic scholarship is less critical of trans* identities, but this acceptance does rest on a strong disapproval of homosexuality. In the late 1980s, two fatwas allowing sex reassignment surgery were issued, since being transgender was considered preferable to acting upon homosexual desires.66 Sex reassignment is also recognised on the birth certificate.67 Consequently, Islam is mainly opposed to gender recognition for non- binary persons68 and for trans* persons who are not heterosexual. It is nonetheless important to note that in all these religious currents, there are also proponents of the acceptance and support of all trans* persons.
As this study focuses on gender recognition in Member States of the Council of Europe, I will focus primarily on Christian arguments against the legal recognition of trans* persons. Christianity remains the dominant religion in Europe and, having participated in the shaping of European culture, is the most likely to have a measurable impact on national legislation in Europe.
Christian opposition against the recognition of trans* identity has surfaced frequently since the existence of trans* identity started garnering more attention. In his
61 Genesis 1:27 62 Mary Anne Case, ‘After Gender the Destruction of Man - The Vatican's Nightmare Vision of the 'Gender Agenda' for Law’ 31 Pace Law Review 802, p.811 63 Human Rights Campaign, ‘Stances of Faiths on LGBTQ Issues: Orthodox Judaism’ (8 January 2018)
21 series of lectures “Theology of the Body,” in 1997, Pope John Paul II insisted on the essential and immutable differences between men and women, which have their point of departure in Genesis. In this interpretation of the Bible, one’s gender is a gift from God.69 In 2008, his successor, Benedict XVI, spoke of the need for a “human ecology,” according to which the fundamental nature of humanity must be protected against the persons who wish to dismantle its most basic tenets. “If the Church speaks of the nature of the human being as man and woman, and demands that this order of creation be respected,” he states, “this is not some antiquated metaphysics. What is involved here is faith in the Creator and a readiness to listen to the "language" of creation. To disregard this would be the self-destruction of man himself, and hence the destruction of God's own work. What is often expressed and understood by the term "gender" ultimately ends up being man's attempt at self-emancipation from creation and the Creator. Man wants to be his own master, and alone-always and exclusively-to determine everything that concerns him. Yet in this way he lives in opposition to the truth, in opposition to the Creator Spirit.”70 Pope Benedict XVI’s explanation perfectly illustrates a certain Christian attitude towards trans* identities and, due to the Pope’s influence and authority over Catholics, plays a role in shaping it as well. According to this interpretation, being trans* is an unacceptable rebellion against and rejection of God.
This idea is also apparent in the expressions of certain Christian organisations in times of political debate on gender identity. Under John Paul II, for example, the Vatican sent church leaders a confidential document stating that sex reassignment surgery does not change a person’s gender. The document finds that trans* identity is a mental illness and that "[t]he altered condition of a member of the faithful under civil law does not change one's canonical condition, which is male or female as determined at the moment of birth.”71
During the 55th session of the Commission on the Status of Women of the United Nations Economic and Social Council, the Vatican issued a statement objecting to "a
69 Mary Anne Case, ‘After Gender the Destruction of Man - The Vatican's Nightmare Vision of the 'Gender Agenda' for Law’ 31 Pace Law Review 802, p.820 70 Mary Anne Case, ‘After Gender the Destruction of Man - The Vatican's Nightmare Vision of the 'Gender Agenda' for Law’ 31 Pace Law Review 802, p.822 71 Mary Anne Case, ‘After Gender the Destruction of Man - The Vatican's Nightmare Vision of the 'Gender Agenda' for Law’ 31 Pace Law Review 802, p.824
22 radical definition of ‘gender,' which asserts that sexual identity can somehow be adapted indefinitely to suit new and different purposes.”72
Also in 2011, French officials of the Catholic Church called for immediate removal of mentions of trans* persons in high school science manuals. The full arguments to back their demands were published in “Gender: La Controverse”, a book criticising gender theory in its broadest sense, from radical feminism to trans* identities. This book was edited and co-written by Msgr. Tony Anatrella, priest and Vatican spokesman, and published by the Pontifical Council for the Family. It called trans* identities “mental illnesses, delusions, pathological individualism and a kind of socially- mandated infantilism”.73
In 2018, a new law on gender recognition based on self-determination entered into force in Belgium.74 The same year, a relatively well-known journalist came out as a trans* woman. Outraged by the State and media’s support of trans* identities, a Catholic students’ organisation published an open letter calling trans* identities a “mental illness” and “a slap in the face and a lack of respect for the life that was given to us.” The open letter criticised Catholic political parties’ support of trans* persons and stated that “changing one’s gender can and shall never be normalised.”75
In 2014, on the other side of the Atlantic, the Southern Baptist Convention approved a resolution that denied the existence of trans* gender identities. The resolution states that “God's design was the creation of two distinct and complementary sexes, male and female" and that "gender identity is determined by biological sex, not by one's self-perception.” The Southern Baptist Convention also strongly opposed the Obama administration’s efforts to “validate transgender identity as morally
72 The Permanent Observer Mission Of The Holy See To The United Nations, ‘Statement of the Holy See in Explanation of Position on the Agreed Conclusions, ’
23 praiseworthy.” This clearly expresses their opposition to state-sanctioned gender recognition.76
In the US, a current of conservative religious thought also considers legal gender recognition a violation of the right of freedom of expression as related to the right to freedom of religion. Gender recognition procedures, they say, force religious persons to treat trans* persons as their legally recognised gender, which hinders them from expressing their deeply held beliefs that a person’s gender is determined by God and denoted by the sex assigned to them at birth.77
It is clear from the previous examples that certain religious persons and institutions are strongly opposed to legal gender recognition. They take offence to the fact that the State sanctions what is, to them, a blatant disrespect for what they consider God’s plan for humanity to be.
ii. Politically conservative criticism
There is significant overlap between religious and politically conservative criticism of gender recognition, since, as we have seen before, much of the criticism comes from conservative Christians. However, some of the most virulent criticism against trans* persons comes from conservative atheists. According to conservative values, the differences between men and women are fundamental and a central tenet of society; there are only two genders (men and women), one’s gender is determined from birth (biologically or by God’s will), and men must be attracted to women and vice-versa.78 Trans* persons’ existence is clearly at odds with such a view of the world. In the US, the Trump administration recently launched an attempt to entrench this position into law, proposing to define gender “on a biological basis that is clear, grounded in science,
76 Human Rights Campaign, ‘Southern Baptist Convention Approves Anti-Transgender Resolution’ (10 June 2014)
24 objective and administrable” – i.e. on the grounds of sex, which is “either male or female, unchangeable, and determined by the genitals that a person is born with.”79
Any deviation from what is considered such a basic and universal truth is, therefore, a mental illness in the eyes of conservatives. Consequently, being trans* is something that should be treated, not encouraged. To them, legal recognition of trans* identities means that the State is encouraging a dangerous mental illness.80
Conservative values put a lot of importance on gender roles; women must be feminine, mothers, housewives, caring, subservient, etc., while men must be big earners, assertive, unemotional, ambitious, etc.81 Trans* persons, in the eyes of conservatives, are the ultimate betrayal of gender roles: by identifying as and “acting like” a different gender than the one assigned to them at birth, a trans* person obviously refuses to conform to the gender roles associated with the sex assigned to them at birth.82
Conservatives also associate being trans* with sexual deviancy. This stems, among other things, from the association between trans* identities and homosexuality.83 There is always a point in a trans* person’s life when they are perceived not to be heterosexual. Trans* women, in particular, are accused of being effeminate gay men trying to trick upstanding heterosexual men into having sex with them.84 Being trans* in itself is also considered a kind of sexual fetish. According to Ray Blanchard’s theory, for example, trans* women are “auto-gynephiles”: men who are sexually aroused by thinking of themselves and seeing themselves as women.85
79 NYTimes, ‘‘Transgender’ Could Be Defined Out of Existence Under Trump Administration’ (21 October 2018)
25 . Conservatives hold the nuclear, heterosexual family in high esteem.86 Trans* persons flout gender roles and are – in their opinion – never truly heterosexual; consequently, they are incompatible with those family values. Trans* persons are, therefore, not suited to raising children. Furthermore, since they are regarded as mentally ill, they are considered too unstable to be capable of caring for children.87 In general, exposing children to trans* persons is believed to confuse them: by seeing someone else fail to conform to their sex assigned at birth and its associated expectations, children would become confused about their own gender, fundamental identity, and the world around them in general.88 For conservatives, the worst-case scenario is that trans* persons risk “turning” children (their own children or any children who come into contact with them) trans*.89
This “think of the children” argument is one of the most prevalent and efficient arguments against legal gender recognition, especially gender recognition based on self- determination. Trans* persons’ heightened visibility combined with easier recognition of their gender leads certain people to worry that children who are not truly trans* would be led to believe they are. They would then undergo various medical interventions and legally adapt their gender, which would lead to trauma down the line.90 The latest example of this fear is the recent study on so-called “Rapid-Onset Gender Dysphoria”, in which a sexologist emits the hypothesis that children are being peer-pressured into identifying as trans*.91 In order to avoid such a proliferation of forced or confused trans* identities, the State should of course never acknowledge or recognise trans* identities, and if it insists on doing so, should certainly never remove any of the barriers to such gender recognition.
Conservatives’ interpretation of biology and medicine is that there is no difference between sex and gender and that there are only two genders, which are
86 Gazzola and Morrison, ‘Cultural and Personally Endorsed Stereotypes of Transgender Men and Transgender Women: Notable Correspondence or Disjunction?’, , p.82 87 Jesse Singal, ‘When Children Say They’re Trans’ (The Atlantic, July/August 2018)
26 biologically determined. Genes, hormones, organs and physical characteristics form a coherent whole that indicate one particular sex and, simultaneously, the corresponding gender.92 This is, to them, a fundamental truth. Anyone contradicting this prioritises trans* persons’ feelings and beliefs over objective truth.93 This is exemplified in Ben Shapiro’s infamous phrase: “Facts don’t care about your feelings.”94 Particularly to atheist conservatives, the imposition of subjective beliefs over objective truth is a sure sign of authoritarianism.95
This fear of authoritarianism is at the root of much of the criticism against legal gender recognition. Increased protection for trans* persons, including – but not limited to – legal gender recognition, is seen as an absolute abuse of state power.96 Certain people are of the opinion that trans* identities are not real; that one’s gender rests squarely on a fixed combination of biological characteristics; and that no matter how hard one tries, one can never change all those biological characteristics. Therefore, it is simply impossible for someone to change their gender. Someone who was designed as a woman when they were born will always be a woman; someone who was designed as a man when they were born will always be a man. By allowing gender recognition and providing for protection of trans* people against discrimination, the State makes it impossible to express that opinion.97
Jordan Peterson has built his academic fame on this argument since 2017, when Canada passed a law that stated that calling a trans* person by the wrong pronouns was a factor of discrimination. Peterson considers this a violation of the right to freedom of expression. By punishing people for misgendering trans* persons, the State makes it impossible to call a trans* woman a man if you truly believe she is a man. Consequently, the State effectively punishes people for expressing the view that gender is exclusively
92 David French, ‘In the Transgender Debate, Conservatives Can’t Compromise the Truth’ (National Review, 9 May 2018)
27 biologically determined and immutable.98 Gender recognition procedures effectively do the same thing, since not knowing a person’s sex assigned at birth makes it harder to treat them accordingly. In the works of conservative writers, Orwellian comparisons abound, and gender-inclusive and gender-neutral language is frequently derided as “Newspeak”.99 Evidently, the conflation of trans* recognition and State authoritarianism runs deep.
Many conservatives also express a serious concern for the possibility of fraud, if gender recognition procedures are facilitated. If there are no barriers in place to control access to gender recognition procedures, people could change their gender willy-nilly in order to achieve different goals. A frequently invoked goal, within the context of the current “war on terror”, is that a terrorist could change their name and gender marker, get new identity documents, and become utterly untraceable by the authorities who are trying to track them down.100 In general, it is considered an easy path to identity fraud.101 A less high-stakes but still frequently invoked goal is that men could legally change their gender and be allowed to participate in women’s sports, in which they would have an unfair advantage.102 Similarly, men could change their gender in order to obtain a (professional, political, etc.) position reserved to women.103 In countries where there are differences between men and women regarding social security or insurance, changing one’s gender could be a means of committing social security fraud.104
In their fight against what they consider an abuse of power, whether by the State or by badly intentioned individuals, conservatives do not only ally themselves with certain religious groups. They have also found unlikely allies in the proponents of a certain current of feminism, and are willing to set aside their differences regarding the rights of cisgender women to unite against trans* persons.
98 Ibid. 99 See, for example: ibid.; Lynne Marie Kohm, ‘The First Amendment, Homosexual Unions, and Newspeak: Has the Language Surrounding the Marriage Debate Altered the Nature of Marriage Itself, or Affected the Truth of the Issues Inherent in Alternative Marriage Demands’ 4 Liberty University Law Review 593 100 Lau, ‘Gender Recognition as a Human Right’, p.10-11 101 Ibid., p.10-11 102 Ibid., p.11-12 103 Ibid., p10-11 104 Elisabeth Bauer, ‘The Curious Case Of Sergio/a, The Argentinian Pensioner’ (Forbes, 27 March 2018)
28 iii. Trans-Exclusionary Radical Feminists
Despite the frequent conflating of trans* activism and feminism under the heading of “gender theory”, cisgender feminists and trans* activists do not always see eye to eye. A particular current of radical feminism is, indeed, virulently opposed to the recognition of trans* identities.105 The proponents of this movement are called trans-exclusionary radical feminists (hereafter: TERFs). Their main arguments are as follows. Firstly, that gender is socialised into us from a young age, based on our sex and, most importantly, on sex discrimination. Secondly, that trans* identities reinforce gender stereotypes that especially caricaturise women and as such perpetuate the patriarchy. Thirdly, that persons who are actually lesbians or gay men will be coerced into changing their gender in order to appear heterosexual. And lastly – the argument that resurfaces the most in political discourse about gender recognition based on self-determination – that trans* women are actually male abusers trying to infiltrate women’s spaces.106
The first argument shows that TERFs do think that gender is a social construct. However, they believe that socialisation cannot be escaped. Discrimination (or privilege) is an essential part of socialisation, and discrimination (or privilege) takes root as soon as a child’s sex is revealed. A woman is therefore a woman because she has been discriminated against since birth for the sole reason that she has a vagina.107 An integral part of that discrimination is sexual harassment from a very young age onwards. Someone who was assigned female at birth but does not identify as such must therefore only be trying to escape misogynist discrimination, and someone who was assigned male at birth can never be a woman, by virtue of supposedly having enjoyed male privilege.108
According to TERFs, trans* activists’ conceptualisation of gender is inherently flawed because it does not rely upon discriminatory or privileged socialisation, but
105 Sophia Lewis, ‘How British Feminism Became Anti-Trans’ (The New York Times, 7 February 2019)
29 instead on stereotypical ideas of what makes someone a man or a woman. They criticise trans* women, in particular, for acting out a caricature of womanhood, accusing them of thinking that it suffices to wear a dress and makeup and be soft and submissive to be a woman.109 Similarly, they are of the opinion that trans* men are “lost women” who feel that they cannot be women if they have certain “masculine” traits.110 TERFs fear that by emphasising the differences between men and women, trans* activists will increase differential treatment of men and women, and in a patriarchal society, such differential treatment would always be discriminatory against women.111
A concern that originated specifically in trans-exclusionary lesbian spaces, but has since been picked up by TERFs of all sexual orientations, is that the increased acceptance for medical transition and gender recognition would be used as a homophobic weapon. TERFs say they fear that homosexual teenagers in particular would be forced into medical transition and gender recognition procedures in order to “make them” heterosexual.112
The TERF argument that appears the most in public discourse is the fear that gender recognition procedures, particularly procedures based on self-determination, will be abused by men who want to invade female spaces to harm women.113 This harm can be very direct, or rather indirect. The most extreme example of this can be found in the current “bathroom debate”. Several US states have passed laws that force trans* persons to use the gendered bathroom that corresponds to the sex assigned to them at birth.114 Such proposals have also happened in Europe, most notably in the UK, where they are at the crux of the debate about the possible new Gender Recognition Act.115 They rest upon the fear that men will pretend to be women in order to enter women’s
109 Jeffreys, ‘Transgender Activism: A Lesbian Feminist Perspective’, , p.58 110 Ibid., p.58 111 Ibid., p.59 112 Ibid., p.62 113 Lori Chambers, ‘Unprincipled Exclusions: Feminist Theory, Transgender Jurisprudence, and Kimberly Nixon’ 19 Canadian Journal of Women and the Law 305; Carissima Mathen, ‘Transgendered Persons and Feminist Strategy’ 16ibid. 291 114 Robin Fretwell Wilson, ‘The Nonsense About Bathrooms: How Purported Concerns Over Safety Block Lgbt Nondiscrimination Laws And Obscure Real Religious Liberty Concerns’ (2017) 20 Lewis and Clark Law Review, p.1379 115 Peter Dunne and Tara Hewitt, ‘Gender Recognition, Self-Determination and Segregated Space’ (Oxford Human Rights Hub, 2018)
30 bathrooms and assault the women using the bathroom, or, less extremely, that women will be forced to see penises when they least expect it.116 Similar debates are happening around women’s swimming pools, women’s gyms, women’s changing rooms, etc.117 In its more extreme cases, such reasoning leads to conclusions such as the ones drawn by anti-trans* feminist Janice Raymonds, who wrote that “[a]ll transsexuals rape women's bodies by reducing the real female form to an artifact, appropriating this body for themselves.”118 Trans* identity then shifts from a tool that facilitates rape, which is the position touted in most of the current-day anti-trans* discourse about recognising the identities of trans* persons, to rape in itself.
TERFs also strongly object to the idea that trans* women should be allowed in women-only spaces with a political or societal goal.119 The Canadian Nixon case, for example, launched virulent debate on the subject. Ms. Nixon was a trans* woman and a rape survivor who wished to become a counsellor at a women-only shelter for victims of sexual violence. The shelter turned her away on the grounds that she was not truly a woman, or not the right kind of woman, to work with female victims of sexual violence. According to the shelter workers’ reasoning, this meant that, having been socialised as a man, she was a participant in the social power structure that causes women to be sexually abused. Furthermore, victims might perceive her as a man, which might traumatise them further, since survivors of sexual violence often experience a period of time during which they are very afraid of men. Ms. Nixon turned to the judiciary system, and lost her case.120 This is a very good example of TERFs’ hostility to trans* women in women’s safe spaces, and of the opinion that the safety and inclusion of cisgender women and trans* women are mutually incompatible.
A similar case, but within a different context, is the case of Lily Madigan. At age nineteen, she was elected for a position of Women’s Officer for the British Labour Party. Shortly thereafter, she applied to a programme for women in leadership positions. Many
116 Chambers, ‘Unprincipled Exclusions: Feminist Theory, Transgender Jurisprudence, and Kimberly Nixon’, ; Carissima Mathen, ‘Transgendered Persons and Feminist Strategy’ 16ibid. 291 117 Lori Chambers, ‘Unprincipled Exclusions: Feminist Theory, Transgender Jurisprudence, and Kimberly Nixon’ 19ibid. 305; Carissima Mathen, ‘Transgendered Persons and Feminist Strategy’ 16ibid. 291 118 Raymond, The Transsexual Empire: The Making of the She-Male, p.104 119 Chambers, ‘Unprincipled Exclusions: Feminist Theory, Transgender Jurisprudence, and Kimberly Nixon’, ; Carissima Mathen, ‘Transgendered Persons and Feminist Strategy’ 16ibid. 291 120 Lori Chambers, ‘Unprincipled Exclusions: Feminist Theory, Transgender Jurisprudence, and Kimberly Nixon’ 19ibid. 305, p.129-135
31 UK feminists were outraged by Ms. Madigan’s election into a position reserved for women, asserting that she was nothing more than a man trying to speak for and over women, which would undermine decades of feminist progress.121 According to this point of view, trans* women do not just cause personal harm to individual women; they also endanger women’s liberation as a whole by infiltrating women’s political spaces and overriding women’s concerns. 122 This is also apparent in TERFs’ assertions that including trans* women in the feminist movement would be harmful to reproductive rights. They argue that no longer equating “women” to “people with uteruses” would bring about the end of all activism surrounding, for instance, access to abortion and contraception.123
This specifically trans-exclusionary current of feminist thought evidently strongly opposes State recognition of trans* identities, since, according to this reasoning, it would facilitate the propagation of gender stereotypes and male colonisation of female spaces. For TERFs, gender recognition is consequently equivalent to the State-sanctioning of everything the feminist movement has opposed for the past several decades.
iv. Progressive criticism: Is legal gender recognition enough?
When we speak of the right to gender recognition, the current objective is a simple, administrative procedure based on self-determination that includes non-binary persons by making a third gender option a possibility. However, according to many trans* activists, this is not enough: as long as the state knows your gender and/or sex, this information will be used against you.124 Therefore, the only real solution is to abolish gender registration altogether.
There are a few general reasons to support this goal – arguments that do not apply exclusively to trans* persons. Firstly, mandatory registration of gender is starting to become rather out-dated in today's society. Gender has increasingly fewer
121 Bridie Witton, ‘Labour row after transgender woman Lily Madigan stands for women's officer in Deptford’ (News Shopper, 26 October 2018)
32 consequences in law: for instance, in many countries, there are no longer any major differences in family and property law, marriage is open to non-heterosexual couples, and parenthood is no longer exclusive to one man and one woman125. In this context, the question arises as to whether it is still useful for the State to know a person's gender. Secondly, one’s gender can be considered quite personal and sensitive information.126 Its registration could label trans* and intersex persons as "different", for example, or designate same-gender couples who are married. Many do not trust the government with such information. Finally, the abolition of gender registration offers a certain guarantee against the existence of discriminatory regulation introduced by the government: if gender is no longer known by the State, it is much more difficult for the government to enact any gender-based discriminatory rules.127
Of course, gender registration is particularly problematic for trans* persons. A first problem is posed by the abusive requirements for gender recognition, as they violate trans* persons’ right to physical integrity and private life. It is, however, the opinion of many scholars and activists alike that abolishing those abusive requirements does not suffice to truly protect the rights of trans* persons. I will expand upon this below.
A number of other problems lie in the binary nature of gender registration, which forces non-binary persons into a category that does not correspond with their gender. This hinders their self-determination and discriminates between binary and non-binary trans* persons.128 Intersex persons too face severe consequences. Due to society’s binary views on gender, intersex persons must be registered as men or women. To fit into one of those boxes, intersex infants are often subjected to invasive genital surgery in order to remove any ambiguity.129 The existence of gender registration consequently creates legal pressure that leads to serious violations of intersex persons’ physical integrity.
125 Ibid., p.3 126 Ibid., p.3 127 Ibid., p.3 128 Ibid., p.1-2; Pieter Cannoot, ‘Symposium: New Belgian Gender Recognition Act: shouldn’t selfdetermination also include non-binary people?’ (2018)
33 Data suggests that even a third gender marker can do the same: it can be stigmatising for intersex children, and fear of such stigma could lead to even more “normalising” surgeries and treatments being performed upon intersex children.130 Consequently, even in a society that has abolished gender registration altogether, non- consensual medical procedures performed on intersex children must be prohibited by law.131
Many non-binary persons who are not intersex are also worried about the consequences of a third gender option. It would formally label them as “deviant”, which might expose them to all kinds of discrimination. 132 A third gender option may consequently do more harm than good. The only way to include non-binary and intersex persons without harming them in another way is, therefore, to simply abolish gender registration.
In addition, even a fast and accessible system of gender registration that is based entirely on self-determination, including that of non-binary persons, may still underpin the discrimination and oppression of trans* persons. It is rare that trans* persons are suddenly and immediately certain of their gender, and it is utopic to believe that all trans* persons would adjust their gender registration before they come out to anyone or enter into contact with the outside world.133 In practice, there will always be a period during which trans* persons will be registered as a gender that is not theirs, and this will always cause problems.
Every moment that a trans* person is registered as a wrong gender, that person may be confronted with humiliating situations in their daily lives. Working, travelling, going out, seeking medical help – all these situations involve a risk of being outed to a transphobic person and of being exposed to discrimination, humiliation or even violence. 134 By requiring gender registration, the State consequently accepts and perpetuates the oppression of trans* persons.135 Gender recognition based on self-
130 Commissioner for Human Rights of the Council of Europe, Human Rights and Intersex People (2015), p.38 131 O'Brien, ‘Can International Human Rights Law Accommodate Bodily Diversity?’, 132 Theilen, ‘Beyond the gender binary: rethinking the right to legal gender recognition’, , p.6 133 Laura K. Langley, ‘Self-Determination in a Gender Fundamentalist State: Toward Legal Liberation of Transgender Identities’ 12 Texas Journal on Civil Liberties and Civil Rights 101, p.109 134 Nederland, Suggesties COC bij AO Sekseregistratie door de overheid, p.1-2 135 Brian T Ruocco, ‘Our Antitotalitarian Constitution and the Right to Identity’ 165 University of Pennsylvania Law Review 193, p.204
34 determination does not truly solve this problem, as it can never be done quickly enough. The only true solution is to allow trans* persons to ensure that the only people who know their gender are the people they trust with that information.136
The State similarly still restricts autonomy and self-determination even when it creates gender recognition procedures based on self-determination. Every moment that a person is registered under a wrong gender, that person cannot fully be themself and cannot fully express themself. It can be considered that this situation also violates trans* persons’ right to freedom of expression. This right includes the right not to be forced to declare things that one does not believe.137 As long as a person is registered under a wrong gender, that person is de facto compelled to express something that they do not support at all.
Abolition of gender registration could also have a beneficial impact on healthcare. Physicians and scientists would have access to better, more specific information: instead of classifying patients based on their gender, medical records could simply contain individual biological characteristics without linking them to gender.138 This would not only improve healthcare for trans* and intersex persons, but also for cisgender persons, since biological characteristics also vary among cisgender persons of the same gender.139 These biological characteristics would be treated like any other sensitive information in medical records in order to protect the patients' privacy.
Contrarily to what is often assumed140, the abolition of gender registration could offer better protection against gender-based discrimination than its existence ever has. Indeed, in many societies, gender is currently the only prohibited ground for discrimination to be officially registered by the State. National and international law alike prohibit discrimination based on other characteristics such as ethnicity, religion, sexual orientation, etc., even though this information is not widely officially registered.141 Similarly, it might be possible to assess gender-based discrimination in a
136 Ibid., p.216 137 Ibid., p.214 138 Anna James Neuman Wipfler, ‘Identity Crisis: The Limitations of Expanding Government Recognition of Gender Identity and the Possibility of Genderless Identity Documents’ 39 Harvard Journal of Law & Gender 491, p.539 139 ibid., p.539 140 Ibid., p.540 141 Ibid., p.540; Langley, ‘Self-Determination in a Gender Fundamentalist State: Toward Legal Liberation of Transgender Identities’, , p.130
35 nuanced, intersectional way, taking into account all elements of the specific case at hand. A discriminated person does not have to belong to a certain gender in order for an instance of discrimination to be gender-based: it suffices that the discrimination is based on that person’s gender, whatever that gender may be. 142 Considering gender discrimination outside of a rigid male-female contradiction would facilitate tackling discrimination against non-binary persons, against intersex persons, against trans* persons because of their trans* identity rather than their actual gender, as well as discrimination on the basis of gender expression, of gender non-conformity, etc.
The final argument in favour of the complete abolition of gender registration is that, as long as compulsory gender registration exists, the most vulnerable among trans* persons will bear the brunt of its negative consequences. Even administrative procedures based on self-determination leave trans* refugees, poor trans* persons, trans* persons with a lower education background, trans* persons with a chronic illness or disability, trans* persons with a migration background, etc., out in the cold. These persons often have access to little or no legal information and support. They may experience difficulties when completing administrative procedures. They may be unable to pay even the low cost of gender recognition. Their health may hinder them from making the necessary official declarations. They may be confronted with complex rules of international private law. If their family and environment do not support their gender identity, these obstacles are often insurmountable. It is precisely these trans* persons who are most in need of protection, and they will only be truly and entirely protected when gender registration is abolished. 143
Consequently, gender recognition procedures based on self-determination might simply not be enough. If the intended goal is to protect and support trans* persons as much as possible and to free everyone, trans* or cisgender, from any state-enforced consequences of gender, the only method of fully achieving this goal may be to abolish gender registration altogether.
142 Langley, ‘Self-Determination in a Gender Fundamentalist State: Toward Legal Liberation of Transgender Identities’, , p.130 143 In this regard, see: Olga Tomchin, ‘Bodies and Bureaucracy: Legal Sex Classification and Marriage-Based Immigration for Trans People’ [2013] 101 California Law Review,
36 b. Countering the criticism against gender recognition
Despite all this criticism, the advantages of legal gender recognition based on self- determination by far outweigh its disadvantages. Changing the law’s attitude towards gender registration is still a necessity to protect the rights of trans* persons, and does not impact the rights of other persons half as much as they fear. Since all the above- mentioned criticism focuses largely on binary trans* persons, especially on trans* women, non-binary persons will unfortunately be addressed less in this part.
i. Countering religious criticism
Regarding religious opposition to gender recognition, it is easy to see why these arguments should not hinder gender recognition procedures. Indeed, the separation of church and state is a recognised principle within the Council of Europe. As the Parliamentary Assembly of the Council of Europe states in its recommendation on state, religion, secularity and human rights, “a religion whose doctrine or practice ran counter to other fundamental rights would be unacceptable144” and “states [may not] allow the dissemination of religious principles which, if put into practice, would violate human rights145.”
Undoubtedly, persons whose interpretation of their religion leads them to believe that gender is fixed and predetermined within God’s plan have a right to that opinion under Article 9 ECHR. According to the Parliamentary Assembly of the Council of Europe, however, the expression of such religious beliefs cannot violate other fundamental human rights.146 Gender identity has been recognised as an essential aspect of the right to private life under Article 8 ECHR, and the right to gender recognition has been established as a subset of this right.147 Consequently, if arguments based on religious beliefs were to prohibit gender recognition, they might be considered to be violating a fundamental human right of trans* persons. The ECtHR has followed a similar reasoning in Eweida et al. v. UK, stating that limitations of the right to religion are
144 Parliamentary Assembly of the Council of Europe, State, religion, secularity and human rights (2007), §16 145 Ibid., §16 146 Ibid., §16 147 Christine Goodwin v. UK, App. no. 28957/95, 11 July 2002 (ECtHR)
37 justified if they aim to protect the rights of others.148 In this case, the Court found that religious beliefs cannot justify discrimination based on sexual orientation149 – mutatis mutandis, this conclusion can also be applied to gender identity. The Court’s reasoning in Eweida applied to individuals, not to States; however, the Parliamentary Assembly applies a very similar reasoning to State obligations. The Inter-American Court of Human Rights (hereafter: IACtHR) applied a very similar reasoning to the State of Chile in the case of Atala Riffo.150 It is therefore logical to conclude that States, too, may not invoke religious beliefs in order to refuse to implement gender recognition.
ii. Countering politically conservative criticism
In recent years, the innate and binary nature of sex and gender has been put into question. If the lived experience of trans* and intersex persons is not enough to convince conservatives that sex and gender are not as essentialist as they think, scientific and medical studies have now added their weight to the debate. In addition, intersex activists have launched the conversation about sex as a spectrum rather than as a fixed binary. We now know that variations in genitals are common, and that assigning sex at birth based on an infant’s genitals is not as clear-cut as it seems. With the advance of science in the field of genetics, we also know that there are persons who have XY chromosomes but exhibited a female phenotype from birth and were as such assigned female at birth, and vice-versa. Klinefelter and Turner syndrome, which respectively mean a person has XXY chromosomes and XO chromosomes, are another example of chromosomal sex variation. Production of and sensibility to sex hormones also vary widely from one person to another. It is clear that the characteristics used to define sex (chromosomes, hormones, gonads, genitals and secondary sex characteristics) are not always consistent with one another, and that each of them exhibits variations between humans. This teaches us that sex is much more complex than many people imagine.151
If sex is more complex than we think, it takes but a small step to conclude that gender must be too. Sex and gender seem to be related to one another, but not as closely
148 Eweida et al. v. UK, App. no. 48420/10, 59842/10, 51671/10 and 36516/10, January 15 2013 (ECtHR) 149 Ibid. 150 Atala Riffo and daughters v. Cile 151 Clark Hofman, ‘Male, Female, and Other: How Science, Medicine and Law Treat the Intersexed, and the Implications for Sex-Dependent Law’, ; O'Brien, ‘Can International Human Rights Law Accommodate Bodily Diversity?’, ; Blackless, Charuvastra, Derryck, Fausto-Sterling, Lauzanne and Lee, ‘How Sexually Dimorphic Are We? Review and Synthesis’,
38 as we may think; there is certainly no one-to-one relationship between them. The existence of trans* persons is not enough to convince conservatives of this – they consider that having a gender that does not correspond to one’s assigned sex at birth is a mental illness. They base this sex assigned at birth, and consequently this gender, on the cluster of characteristics mentioned above. However, this entire reasoning falls apart as soon as we factor in intersex persons. Intersex persons have a variety of gender identities. Some identify with the gender assigned to them at birth, even if it does not correspond with their chromosomal configuration or hormone production. Others do not identify with the gender assigned to them at birth. They might identify as female if they were assigned male, or vice-versa, but they might also be non-binary. What causes gender, then? Chromosomes? Gonads? Hormones? Genitals? Secondary sex characteristics? None of these possibilities hold up when we consider intersex persons. This makes it obvious that gender, like sex, is determined by more than just a cluster of biological characteristics, and is broader than the omnipresent binary.
Queer feminists argue that gender as society knows it – who we see as a woman, who we see as a man – is socially constructed. They have an anti-essentialist view on gender: gender is not what one is, but what one does. This is what Judith Butler calls “gender performativity152” and West and Zimmerman call “doing gender153”. Gender is “the activity of managing situated conduct in light of normative conceptions of attitudes and activities appropriate for one’s sex category”. 154 It is produced through social interactions and simultaneously sets standards for others to conform to.155 Those normative conceptions are context-dependent; consequently, gender is also context- dependent.156
If gender is such a variable concept, then gender roles have no meaning either. The variation inherent in sex and in gender must necessarily translate to gender roles: if certain characteristics cannot tell you without question what someone’s gender is, they certainly cannot tell you what their behaviour and priorities should be. This reasoning is
152 Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (Routledge Press 1999) 153 Candace West and Don H. Zimmerman, ‘Doing Gender’ 1 Gender & Society 125 154 Ibid., p.127 155 Ibid., p.127 156 Ibid., p.127
39 supported by the fact that gender roles vary across the world and throughout history.157 Conservatives’ ideas of gender roles are, therefore, inherently flawed, and no one, trans* or cisgender, has a responsibility to uphold them.
In part due to the reasons outlined above, the scientific community has recently reviewed its position on trans* identities as a mental illness. If it is not clear what causes gender or what gender is exactly, then we cannot consider gender variance to be a mental illness. Realising this, several international health organisations have struck trans* identities from their list of mental illnesses, creating an international trend towards the full depathologisation of trans* persons. The fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-V) has replaced “Gender Identity Disorder” with “gender dysphoria”.158 Similarly, the World Health Organisation has removed “gender identity disorder” from the eleventh revision of the International Classification of Diseases and “gender incongruence” is not considered a mental disorder.159
The continuing inclusion of “gender dysphoria” and “gender incongruence” in such medical documents does show that medicalization remains – there is still a diagnosis, even if it is not pathologised. However, many trans* persons consider this to be beneficial. Indeed, most States still require a diagnosis of some kind in order to grant trans* persons access to trans* specific healthcare. Diagnoses are also often required by insurance companies or for social security160; consequently, they are a pragmatic tool to ensure that trans* persons can afford appropriate healthcare.
Nonetheless, as the Council of Europe’s Commissioner for Human Rights says, “from a human rights and health care perspective, no mental disorder needs to be diagnosed in order to give access to treatment for a condition in need of medical care.” 161 Depathologised diagnoses are then, accordingly, “alternative classifications162”. They recognise the fact that it is not being trans* in itself that causes distress to trans*
157 See: Kristina M. Zosuls, Cindy Faith Miller, Diane N. Ruble, Carol Lynn Martin and Richard A. Fabes, ‘Gender Development Research in Sex Roles: Historical Trends and Future Directions’ [2011] Springer Science and Business Media; Paola Giuliano, ‘Gender: A Historical Perspective’ [2017] Insitute of Labour Economics 158 Theilen, ‘Depathologisation of Transgenderism and International Human Rights Law’, , p.129 159 WHO, ‘ICD-11: Classifying disease to map the way we live and die’ 160 Theilen, ‘Depathologisation of Transgenderism and International Human Rights Law’, , p.131 161 Commissioner for Human Rights of the Council of Europe, Human Rights and Gender Identity, p.10-11 162 Ibid., p.10
40 persons, but rather society’s reaction to their identity. Society’s attitude about one’s gender, body and behaviour may cause enough distress to qualify as a mental illness (for example depression, anxiety or gender dysphoria), but it is not being trans* in itself that is a mental illness.163 Consequently, the argument that gender recognition legitimises mental illness is incorrect. On the contrary, gender recognition would limit the exposure of trans* persons to a negative reaction from society, which would in turn limit the distress caused to them, and would consequently avoid mental health issues.
Being trans* is not a mental illness. It is also not, as certain people think, a kind of sexual fetish. Ray Blanchard’s autogynephilia theory – the theory that a subset of trans* women are simply men who experience sexual arousal when thinking of themselves as women – has been thoroughly disproved by other psychologists. Charles Moser, for example, has recreated Blanchard’s study on cisgender women, using Blanchard’s criteria for autogynephilia.164 Moser found that 93% of cisgender women fit Blanchard’s definition for autogynephilia165 Being trans* can therefore not be considered any more of a fetish than being cisgender.
Since being trans* is not a mental illness or a sexual fetish, there is no truth in the belief that trans* persons are too mentally unstable to raise children. Furthermore, there is increasing anecdotal evidence that children do understand the concept of trans* identities when someone takes the time to explain it to them.166 Even if they did not, we spend a lot of time teaching our children complicated things. The only reason not to teach them about gender variance is because we, personally, do not understand it very well or take issue with it. It is consequently more about protecting ourselves than about protecting our children.
Moreover, the idea that trans* persons could “turn children trans*” is particularly flawed. It may not be clear yet what causes gender variance, but it is highly questionable that social contagion could be its only factor. The recent study about Rapid Onset Gender Dysphoria, which has been instrumental in fanning the flames of such concerns, has
163 Theilen, ‘Depathologisation of Transgenderism and International Human Rights Law’, , p.128 164 Moser, ‘Blanchard's Autogynephilia Theory: A Critique’, 165 Charles Moser, ‘Autogynephilia in Women’ 56 Journal of Homosexuality 539 166 Kasandra Brabaw, ‘Gender Identity Isn't Too Confusing For Your Toddler’ (Refinery29, 20 March 2018)
41 been debunked as fundamentally flawed: its scientific method was highly questionable. The children were the research subjects, but they were never studied or even questioned. The questionnaires were instead sent to their parents, who had been selected through trans*-critical websites where they were already expressing strong opposition to their child’s identity. The child’s own experience, the experience of anyone else around them, and the experience of supportive parents of trans* children were completely disregarded.167 The objectivity and scientific value of this study is therefore highly questionable, and the conclusion that trans* identity is passed on through social contagion is, at best, premature.
A more likely explanation, one that has been confirmed by many trans* persons’ lived experience, is that seeing other trans* persons gives trans* persons the terminology and framework to express something they had been experiencing already.168 If their family is hostile to trans* identities, trans* persons often wait a long time to come out to them. To those relatives, a realisation that has been discovered through a long inner process and often a few coming-outs to other people may therefore appear “rapid-onset”.169 The World Professional Association for Transgender Health (hereafter: WPATH) has also stated that ROGD is only a “proposed medical phenomenon”, that the causes of trans* identities are still not fully understood, and that it should not be used “with the a priori goal of limiting consideration of all appropriate treatment options”.170
Anti-trans* organisations often spread misinformation about the treatment of trans* minors. They state that as soon as a child tells someone they are trans*, they will be offered immediate hormone replacement therapies and surgery, which they might regret later in life.171 In reality, trans* minors are, at best, given reversible puberty blockers. These medications delay the onset of puberty, which actually avoids invasive
167 Harriett Hall, ‘Rapid-onset Gender Dysphoria and Squelching Controversial Evidence’ (Science-Based Medicine, 18 September 2018)
42 medical treatments later on. If the minor realises they are not trans* after all, they just stop taking the blockers, and puberty proceeds as normal. If they are indeed trans*, having taken puberty blockers makes certain procedures, such as chest surgery, facial surgery and voice surgery, unnecessary.172
It is perfectly permissible to take issue with trans* identities. However, when it comes to children, it is always essential to take the child’s best interests into account.173 We have established that being trans* is not a mental illness, and that it is highly questionable that children can be “turned” trans*. However hard it might be for their parents to come to terms with, trans* children do exist, and denying a trans* child’s identity by constantly misgendering them and forcing them to act as someone they are not causes them severe psychological harm.174 This certainly does not comply with the best interests of a child.
One of conservatives’ main concerns is the impact of legal gender recognition on freedom of expression. According to this reasoning, legally recognising a trans* person’s gender will make it harder to express the belief that a person can never change their gender. Their main concern is the fact that gender recognition would lead to a de facto or de iure prohibition of misgendering trans* persons.175 There are two arguments to counter this reasoning: one legal and one practical.
Firstly, freedom of expression is not, as Peterson and his followers like to argue, an absolute right. It is subject to restrictions: hate speech is prohibited in order to protect vulnerable minorities.176 While such a balancing test would be left to the authority of the competent courts, there is an argument to be made for misgendering to be considered hate speech or discrimination. Indeed, according to the case law of the ECtHR, “it may be considered necessary in certain democratic societies to sanction or even
172 Kasia Szczerbinski, ‘I am Whoever You Say I am: How the Custodial Decisions of Parents Can Affect and Limit a Transgender Child's Freedom and State of Mind’ 36 Children's Legal Rights Journal 177, p.185 173 Ibid.; Erika Skougard, ‘The Best Interests of Transgender Children’ Utah Law Review 1161; Jaime B. Margolis, ‘Two Divorced Parents, One Transgender Child, Many Voices. Proposal for Effective Use of Expert Witnesses to Demonstrate That Awarding Custody to a Supportive Parent Is in a Trans Young Person's Best Interest’ 15 Whittier Journal of Child and Family Advocacy 125; Ana-Maria Bucataru, ‘Using the Convention on the Rights of the Child to Project the Rights of Transgender Children and Adolescents: the Context of Education and Transition’ (2016) 3(1) Queen Mary Human Rights Review 59 174 McBride, ‘The Pronoun Warrior’ 175 Ibid. 176 See, for example: Vejdeland et al. v. Sweden, App. no. 1813/07, 9 February 2012 (ECtHR); Erkaban v. Turkey, App. no. 59405/00, 6 July 2006 (ECtHR)
43 prevent all forms of expression which spread, incite, promote or justify hatred based on intolerance […] provided that any ‘formalities’, ‘conditions’, ‘restrictions’ or ‘penalties’ imposed are proportionate to the legitimate aim pursued.177”
Misgendering as a genuine mistake could of course never be considered hate speech, but deliberate misgendering can aim to harm trans* persons, spread hatred and intolerance by furthering the narrative that trans* persons are lying or confused about their gender, or even incite violence against them by outing them in a transphobic context. Implying or outright stating that trans* persons’ gender identity is a delusion or a lie and that this is harmful to society may constitute “serious and prejudicial allegations” under the Vejdeland doctrine178. In Vejdeland et al. v. Sweden, the ECtHR ruled that calling homosexuality destructive to society and linking it to paedophilia were such “serious and prejudicial allegations” 179 and considered such allegations an incitement to hatred.180 The same could consequently be said about allegations made with the purpose to harm trans* persons. As long as the sanctions for such hate speech remained proportionate, such a limitation to the freedom of expression would not be more egregious than other limitations accepted by the ECtHR.181
Even if misgendering was not considered hate speech, it could still be considered prohibited discrimination. Anti-discrimination in general often compels speech: as Jessica Clarke states, “requiring people to interact on equal terms with people they believe are unequal” does impact the way persons speak to each other, since language is essential in human interaction.182
Secondly, there is the question of whether gender recognition actually impacts one’s ability to express the opinion that gender is immutable in practice. Indeed, as long as this expression does not become hate speech, it is possible to express that opinion without misgendering individual trans* persons. Furthermore, the idea that gender recognition procedures limit freedom of expression rests on very stereotypical views of trans* persons. There are trans* persons who have physically transitioned and are not
177 Erkaban v. Turkey, § 56 178 Vejdeland et al. v. Sweden 179 Ibid., §54 180 Ibid., §55 181 Ibid.; Féret v. Belgium, 15615/07, 16 July 2009 (ECtHR) 182 Jessica A. Clarke, ‘They, Them, and Theirs’ 132 Harvard Law Review 894, p.963
44 visibly trans*. Gender recognition or not, even the most virulent free speech advocate will gender them correctly – as demonstrated by Ben Shapiro’s conversation with Blaire White, during which he frequently had to correct himself after calling her “she”, despite claiming that she was actually a man.183 Consequently, in practice, this belief that trans* persons cannot change their gender is applied only to visibly trans* persons – trans* persons who do not “pass”, trans* persons who do not wish to “disappear into the mass”, and non-binary persons who become more visible through gender recognition than they were before. Conservatives do correctly gender trans* persons who are not visibly trans* and consequently do treat them as if they have changed their gender. This points to the flaws in their reasoning: they do not think gender is immutable, but simply only accept its mutability when it is performed and expressed to their satisfaction.
The fear of gender recognition procedures based on self-determination as a means to committing fraud also seems unjustified. In a transphobic society, the costs of transitioning socially and/or legally are still too high, so it seems very unlikely that someone who is not genuinely trans* would take such a step.184 This intuition is confirmed by the evaluation of gender recognition procedures based on self- determination in countries where these have been implemented. According to the Dutch evaluation of the Netherlands’ new gender recognition law (which still requires a specialist to evaluate whether the trans* person is sound of mind), no cases of fraud were found in the Netherlands.185 The same study also examined the situation in Malta, Norway and Ireland, where fraud was similarly absent.186 In all four of those countries, gender recognition is no longer dependent on any abusive requirements.187
In Argentina, there has been only one documented occurrence of fraud, despite over 10.000 Argentinians having made use of them.188 A cisgender man legally amended his gender in order to be able to retire earlier. Firstly, such gender-differentiated social security benefits are likely to fade as gender equality increases; consequently, so will the
183 https://www.youtube.com/watch?v=hbTwoLah2VY 184 Open Society Foundations, License to Be Yourself: Responding to National Security and Identity Fraud Arguments (2016) 185 Marjolein Van den Brink, Recht Doen aan Genderidentiteit: Evaluatie Drie Jaar Transgenderwet in Nederland (2014-2017) (2017), p.69,70,78,80 186 Ibid., p.69,70,78,80 187 Richard Köhler, Julia Ehrt and Constantin Cojocariu, Toolkit: Legal Gender Recgonition in Europe (TGEU, 2016), p.68,72 188 Bauer, ‘The Curious Case Of Sergio/a, The Argentinian Pensioner’
45 motivation to commit such fraud. Considering the numbers, it also seems highly unfair to punish thousands of trans* persons for the actions of one cisgender man, especially since the impact on society of this man’s actions is relatively minor. Complicating gender recognition procedures to avoid such extremely isolated and relatively trivial cases of fraud seems very much like a waste of the State’s resources. One case in ten-thousand, lastly, is statistically insignificant: we can therefore empirically conclude that the fear of recurrent fraud through gender recognition based on self-determination is statistically unfounded.
iii. Countering feminist criticism
Trans Exclusionary Radical Feminists believe that gender is solely caused by socialisation. Men are privileged; women are oppressed. This privilege or oppression starts as soon as a child’s sex is established, which means it is based on a person’s genitals.189 This is what Davina Cooper calls “gender as dominance”, in opposition to “gender as diversity” – which is the view that gender is an internally felt and individually experienced fundamental aspect of personhood.190 The idea of gender as an inescapable consequence of socialisation has, however, been disproved. John Money’s experiment on David Reimer is the most infamous example of this. David Reimer was a little boy who lost his penis due to a circumcision gone wrong. Money performed surgeries on him to give him a vulva and vagina, and he was raised as a girl. Reimer, however, started identifying as a man in his late teens and lived as a man until he committed suicide a few years later.191 A study that surveyed the gender of 73 intersex persons with XY chromosomes who were raised as girls found that 43% of them did identify as female, but 53% of them identified as male and 3% refused to identify as male or female.192 This shows us that socialisation does play a role regarding gender, but that it is certainly not the determining factor. The idea that gender is caused only by sex-based discrimination is therefore incorrect.
The idea that there is such a thing as a universal female experience has also been heavily criticised by intersectional feminists. A person’s life experience is not only
189 Cooper, ‘A Very Binary Drama: The Conceptual Struggle for Gender’s Future’, , p.17 190 Ibid. 191 Clark Hofman, ‘Male, Female, and Other: How Science, Medicine and Law Treat the Intersexed, and the Implications for Sex-Dependent Law’, , p.7 192 Ibid., p.8
46 shaped by their gender, but by many other characteristics as well: sexual orientation, ethnic origin, socio-economic status, ability status and health, neurodiversity, religion, language, etc.193 All these intersections create a myriad of individual experiences that are impossible to amalgamate into the universal experience of persons of a certain gender.194 The differences in life experiences between trans* women and cisgender women therefore do not invalidate their womanhood any more than the differences between the experiences of Black and white women do. The same reasoning can be applied to trans* men: they are not “lost women” trying to escape oppression, but rather men who are discriminated against for certain reasons, just like many other men are.
The view that trans* women cannot be women because they have not faced sexual harassment growing up also falls apart under this scrutiny. Indeed, many trans* women are perceived as feminine boys during their childhood.195 They are often bullied for it, and harassment of children who are perceived to be feminine boys often has a sexual element to it.196 Furthermore, the idea that a trans* woman cannot be impacted by misogyny while she is in the closet is very inconsistent with queer views about oppression and being closeted in general. Indeed, if it is possible for a closeted queer person to be impacted by homophobia, why is it not possible for a closeted trans* woman to be impacted by misogyny? In both situations, not being out does not mean not being perceived as different, and even if a person is not perceived as different, that does not mean they do not internalise society’s messages about their identity.197
Intersectionality, consequently, almost seems to reconcile Cooper’s concepts of “gender as diversity” and “gender as dominance”: gender can be an internally felt fundamental aspect of personhood, but that does not stop it from being influenced by
193 Chambers, ‘Unprincipled Exclusions: Feminist Theory, Transgender Jurisprudence, and Kimberly Nixon’, , p.309 194 Davina Cooper, ‘Bringing the utopian into our gender politics’ (25 January 2015)
47 power relations in society. Power relations in society are, however, not only sex-based; therefore, gender does not necessarily have to be sex-based either.198
Intersectional feminists have also pointed out that TERFs’ focus on certain biological characteristics excludes certain cisgender women from womanhood and perpetuates a rather misogynist view of womanhood. The idea that menstruation is an essential part of womanhood excludes older, post-menopausal women. The idea that one needs a womb to be a woman implies that women who have had hysterectomies for health reasons are not women. The idea that one needs breasts to be a woman is offensive to breast cancer survivors who have had a mastectomy. If a cisgender woman can be a woman without a womb, breasts and regular menstruation, then, logically, so can a trans* woman. Furthermore, reducing womanhood to the possession of a vagina and the ability to bear children implies that the most important part of being a woman is her ability to be a sexual partner and a mother. This is an extremely out-dated view on women, held by persons who are explicitly hostile to women’s rights.199 It is strange for a feminist group to ally themselves with such opinions.
If gender is not caused exclusively by biological characteristics or socialisation but rather by a complex and unpredictable combination of biology and society, it falls entirely within the realm of possibilities that someone who was thought to be a man is actually a woman, that someone who was thought to be a woman is actually non-binary, etc. Therefore, the idea that trans* persons are faking or delusional falls apart. A feminist movement that excludes trans* women is, therefore, a feminist movement that discriminates against a subset of women. This is just as reprehensible as, for example, a feminist movement that excludes women of colour (like certain suffragette movements200). Trans* women are simply women, and it is consequently ludicrous to state that they can “invade” a women’s movement.
TERFs are extremely concerned that the inclusion of trans* women in the movement would detract from the fight against violations of women’s rights grounded in certain biological characteristics. They mainly claim that trans* women will oppose
198 Cooper, ‘Bringing the utopian into our gender politics’ 199 National Women's Law Center and Law Students for Reproductive Rights, If You Really Care About Reproductive Justice, You Should Care About Transgender Rights! (VAWnet, 2015) 200 Brent Staples, ‘How the Suffrage Movement Betrayed Black Women’ (The New York Times, 28 July 2018)
48 any discussion concerning reproductive rights, because not having a uterus means that they are not concerned by reproductive rights, notably by the right to abortion.201 Nothing could be further from the truth, however. Firstly, the idea that one can only take action against issues that affect one directly is demonstrably false; there is, therefore, no reason to think that trans* women do not act against the prohibition of abortion. Secondly, reproductive rights are a much broader issue than the right to abortion. The right to not be pregnant and to refuse to carry a child to term is certainly essential to a woman’s bodily autonomy, but so is the right to reproduce and birth children. Non- consensual sterilisation is an issue that affects many disabled women, Black women, indigenous women and Roma women202 – this is undoubtedly an issue of reproductive rights. Non-consensual sterilisation also affects trans* women, as it remains a requirement for gender recognition in many countries worldwide.203 Reproductive rights, therefore, are also an issue that directly affects trans* women, which makes the idea that they cannot be part of the movement for reproductive rights for women particularly questionable.
The concern that trans* persons have an erroneous idea of gender and strengthen gender stereotypes is similarly hypocritical. Indeed, trans* persons are coerced to conform to gender stereotypes for a variety of reasons, even when they would prefer not to express their gender in that way. Trans* healthcare professionals, for example, do focus on gender stereotypes when they assess whether someone is “really trans*”. For a trans* woman, contact with psychologists, psychiatrists, endocrinologists and surgeons is much easier if she is wearing a dress and makeup. Similarly, a trans* man is taken more seriously if he wears masculine clothing.204 The fact that gatekeeping of trans* healthcare relies on gender stereotyping should not be blamed on trans* persons, who are the first to suffer from this. Being more gender conforming can also be a matter of life and death for trans* persons: it can cause a
201 National Women's Law Center and Rights, If You Really Care About Reproductive Justice, You Should Care About Transgender Rights! 202 Parliamentary Assembly of the Council of Europe, Resolution 1945 on putting an end to coerced sterilisations and castrations (2013) 203 TGEU, Trans Rights Europe Index 2018 (2018) 204 Ben Vincent, ‘Breaking down barriers and binaries in trans healthcare: the validation of non-binary people’ [Taylor & Francis] International Journal of Transgenderism 1, p.1,3
49 person to appear less visibly trans* and therefore limit the transphobic insults, humiliation and even violence trans* persons are often exposed to.205
Gender stereotypes are a catch-22 for trans* persons: whether they conform to them or not, they can never win. If a trans* woman is masculine, she is not trying hard enough and is therefore not actually trans*; if she is feminine, she is portraying a caricature of womanhood and is therefore not actually trans*. The reasoning is similar for trans* men: masculine trans* men must be oppressors, rife with toxic masculinity and misogyny; feminine trans* men are just women who want to escape the constraints of womanhood. This is a convenient way of invalidating trans* identities no matter their gender expression206
Similar assumptions are made about trans* persons’ sexual orientation. TERFs say that trans* men are actually lesbians who want to be men because they are attracted to women and believe that it is easier to be with women as a man. Trans* women must be gay men who are too scared to be with men as a man and therefore want to be women. TERFs then fear that young, impressionable lesbians and gay boys will be coerced into transitioning in order to appear heterosexual. This worry, however, utterly ignores the wide variety of sexual orientations among trans* persons. There are bisexual trans* persons, who will not become any less bisexual if they transition. There are also many gay trans* men and lesbian trans* women.207 Those persons would actually be coerced into appearing heterosexual if they were denied their transition. Framing trans* rights as a threat to lesbian, gay and bisexual rights is therefore erroneous.
The most frequent argument in debates about gender recognition, not just among TERFs but also among the previously discussed groups, is the possibility that gender recognition based on self-determination will enable sexual violence against women.208 Men could pretend to be women to be allowed entry into women’s bathrooms, swimming pools, gyms, changing rooms, shelters and prisons.209 The statistics used to
205 Fundación Huésped, Gender identity law and transgender access to health care in Argentina (2014) 206 Vincent, ‘Breaking down barriers and binaries in trans healthcare: the validation of non-binary people’, , p.1,3 207 Joz Motmans, Leven als transgender in België: De sociale en juridische situatie van transgender personen in kaart gebracht (IGVM, 2009), p.77; Vade, ‘Expanding Gender and Expanding the Law: Toward a Social and Legal Conceptualization of Gender That Is More Inclusive of Transgender People’, , p.270 208 Fretwell Wilson, ‘The Nonsense About Bathrooms: How Purported Concerns Over Safety Block Lgbt Nondiscrimination Laws And Obscure Real Religious Liberty Concerns’, , p.1400 209 Ibid., p.1400
50 back this claim are the Swedish Karolinska Institute Study210 and the recent study on UK prisons by Fair Play for Women211.
The misrepresented conclusion of the Karolinska Institute Study is that trans* women retain male patterns of criminality. This is often taken to mean that they commit rape at the same rate as cisgender men do. The author of the study, however, has contradicted this.212 She states that she only studies the amount of convictions, and did not study the type of crimes committed. It is therefore impossible to draw any conclusions about sexual violence from this study. Additionally, Ms. Djehne states that such a conclusion excludes a very important finding from the study: the cohort of trans* women studied between 1973 and 1988 did retain male patterns of criminality, but the 1988-2003 cohort did not. Ms. Djehne offers the explanation that trans* persons started getting access to more mental health care in the 1990s, and that better mental health leads to a decrease in criminality.213
The study by Fair Play for Women concludes that 41% of trans* women in UK prisons are sex offenders.214 Fair Play for Women is, however, an openly and virulently anti-trans* group – the objectivity of their study is quite questionable. Their conclusions have, indeed, been found to be dubious. Firstly, a similar study in California found that only 20.5% of trans* inmates are registered sex offenders.215 Secondly, Fair Play for Women’s numbers regarding how many trans* women are jailed in the UK did not correspond with the Ministry of Justice’s numbers.216 Their conclusion that 41% of them are sex offenders is based only on their location within prisons: everyone who is jailed
210 Cecilia Dhejne, Paul Lichtenstein, Marcus Boman, Anna L. V. Johansson, Niklas Långström and Mikael Landén, ‘Long-Term Follow-Up of Transsexual Persons Undergoing Sex Reassignment Surgery: Cohort Study in Sweden’ [Public Library of Science] 6 PLOS ONE e16885 211 Fair Play For Women, ‘Half of all transgender prisoners are sex offenders or dangerous category A inmates’ (2017) 212 Cristan Williams, ‘Fact check: study shows transition makes trans people suicidal’ (Trans Advocate, 2015)
51 in a sex offender unit must be a sex offender.217 This disregards the fact that many trans* women are placed in sex offender units in order to protect them against potential transphobic violence from other inmates218; indeed, sex offender units are often better protected, because sex offenders suffer inmate-on-inmate assault at higher rates than other inmates219. Lastly, it is important to note that under certain jurisdictions, sex work is considered a sex offence.220 This means that trans* women who are sex workers can be arrested, jailed, and registered as sex offenders simply because they engage in sex work. This obviously has nothing to do with them committing rape or sexual assault.
This debate also ignores an essential aspect of trans* persons and sexual violence: trans* persons are at extreme risk of falling victim to rape and sexual abuse. Trans* women are raped at a disproportionate rate (47%) compared to cisgender lesbians (13%) and heterosexual women (17%). Only bisexual cisgender women face comparable rates of sexual violence (46%).221 The risk for a trans* woman to be the victim of rape is therefore considerably higher than the risk that she might perpetrate sexual violence. If our society is truly concerned about preventing rape and sexual assault, we should focus much more on protecting trans* women than on protecting people from them.
We can conclude that the risk of gender recognition procedures being abused by sexual predators is much lower than it is made out to be. However, even in those cases where trans* women do commit sex offences, or where cisgender men pretend to be trans* women to sexually assault someone, this should not be a reason to restrict access to gender recognition procedures.
It is, indeed, highly unfair to punish an entire group of persons based on the actions of a few individuals. If a trans* woman commits sexual assault, she should face the same consequences as anyone else convicted of the same crime. This should not have any more consequences for trans* women as a group than sexual assault committed by a cisgender woman has for cisgender women in general. Cisgender
217 Ibid. 218 Ibid. 219 Ibid. 220 Scottish Socialist Party Women’s Network, Prostitution: a contribution to the debate (2006) 221 Human Rights Campaign, ‘Sexual Assault and the LGBTQ Community’
52 women do sexually assault other women222, and yet we do not consider that we should forbid them from identifying as women so that they do not take advantage of their womanhood to harm other women. A fortiori, if a cisgender man pretends to be a trans* woman in order to commit sexual assault, this should certainly not have any consequences for trans* women.
Cisgender women assault other women; cisgender men assault other men. Yet we do not refuse cisgender persons access to gender-segregated spaces such as bathrooms, changing rooms, gyms, prisons and shelters. This would be absurd. It is similarly absurd to exclude trans* women from women’s spaces since, as demonstrated, they are women and they do not pose a significant threat to cisgender women in those spaces. Excluding trans* women would mean treating them like cisgender men. This qualifies as discrimination under the Thlimmenos doctrine, which states that it is discriminatory to treat persons in significantly different situations the same way.223 Indeed, there is a significant difference between cisgender men and trans* women: their gender identity. Treating them the same without objective and reasonable justification is discrimination. The fact that trans* women pose a threat to cisgender women could be an objective and reasonable justification, but this has been disproved. Therefore, there is no objective justification, and such treatment would be discriminatory.
Some cisgender women state that even if trans* women are not a direct threat, they do not wish to see penises in women’s spaces.224 The answer to this is two-fold. Firstly, regarding the so-called “bathroom debate”, it is physically impossible to see someone’s genitals in women’s bathrooms, unless one is peeking under the cubicle door (which is unacceptable) or unless the trans* woman is exposing her genitals outside of the cubicle, which would be indecent exposure regardless of the genitals being exposed. Secondly, in spaces where communal nudity is accepted, such as changing rooms, trans* women themselves report being extremely modest, partly because they fear insults and
222 Rebecca Twinley, ‘Woman-to-woman rape and sexual assault, and its impact upon the occupation of work: Victim/survivors’ life roles of worker or student as disruptive and preservative’ 56 Work 505 223 Thlimmenos v. Greece, App. no. 34369/97, 6 April 2000 (ECtHR) 224 Chambers, ‘Unprincipled Exclusions: Feminist Theory, Transgender Jurisprudence, and Kimberly Nixon’, , p.150-155; Fretwell Wilson, ‘The Nonsense About Bathrooms: How Purported Concerns Over Safety Block Lgbt Nondiscrimination Laws And Obscure Real Religious Liberty Concerns’, , p.1400; Brian S. Barnett, Ariana E. Nesbit and Renée M. Sorrentino, ‘The Transgender Bathroom Debate at the Intersection of Politics, Law, Ethics, and Science’ 46 Journal of the American Academy of Psychiatry and the Law Online 232
53 violence if someone saw their genitals and realised they were trans*.225 There are no reliably reported occurrences of trans* women indecently exposing themselves in women’s spaces.226 On the contrary: the only reported consequences are cisgender women – especially gender-non-conforming cisgender women – being forcibly removed from bathrooms because they are believed to be trans* women.227
Taking all of this into account, we can conclude that the risk that gender recognition based on self-determination would lead to an increase of sexual assault rates is extremely hypothetical. Notably, no such occurrences have been reported in countries where such procedures are already possible.228
Non-binary and intersex persons are rarely included in such debates. However, they are of essential importance to it. Whether we segregate based on sex or on gender, some persons will not fit within our current binary categories. Should we ensure a new, third category of services and spaces for them? Given their low numbers, it is likely that this would not work: services and spaces meant specifically for them would be so far in between that they would not have access to them and de facto still be excluded everywhere. Furthermore, how would they prove that they are non-binary or intersex in order to access those segregated facilities if we did not grant them gender recognition? Should we grant them access to male or female spaces, then? TERFs will likely welcome non-binary persons who were assigned female at birth into female spaces, but what about intersex persons? Factoring non-binary and intersex persons into this debate clearly underlines the ideological and practical unfeasibility of consistent sex- segregation.
225 Barnett, Nesbit and Sorrentino, ‘The Transgender Bathroom Debate at the Intersection of Politics, Law, Ethics, and Science’, 226 Ibid., p.235 227 German Lopez, ‘Women are getting harassed in bathrooms because of anti-transgender hysteria’ (Vox Media, 19 May 2016)
54 iv. The necessity of gender recognition based on self- determination when working towards the abolition of gender registration
The arguments in favour of a complete abolition of gender registration are certainly convincing. The unavoidability of a period of vulnerability, the exclusion of the most vulnerable trans* persons, the possibility of gender recognition marking someone as “deviant” and the consequent impact on the right to privacy – all of these considerations do seem to point towards a need to completely abolish gender registration.
There are, however, practical reasons why this would be very difficult. International private law is an important consideration in this regard. A State abolishing gender registration could make it much harder for their citizens to travel or to work in another country, for example, as a genderless passport could seem suspicious in countries that have not abolished gender registration. It could become impossible for a citizen of a country without gender registration to marry a citizen of a country that does require gender recognition. Similarly, parenting rights could be affected. Gender registration would have to be abolished worldwide before these problems could truly be solved.229
Most importantly, the advantages of gender recognition procedures based on self-determination and which include non-binary persons are obvious when we compare it to the absence of such procedures. It is absolutely essential to act as fast as possible to protect trans* persons against the human rights violations caused by abusive requirements for gender recognition. It is also extremely important to introduce at least one third gender marker option. Several options other than male and female would be better, of course, in order to accommodate the wide variety of non-binary genders. However, the more gender markers are made possible, the more sense it would make to simply abolish gender registration altogether: it is the only way to truly accommodate the diversity of gender identities. As long as gender registration remains binary, however, the right to gender identity of non-binary persons is denied.
229 Susanne Gössi, ‘Questions of a “third sex“ in the international and European arena’ (Leerstoel Marcel Storme 2018/2019 UGent)
55 Gender recognition procedures must also explicitly include intersex persons. Due to the negative impact that even a third gender marker can have on intersex persons, gender recognition laws must make specific efforts to ensure intersex persons’ rights. As mentioned before, non-consensual medical treatments must be legally prohibited. Secondly, parents must be allowed to choose under which gender to register their newborn, with their best interests in mind, and the child must be later allowed to easily amend their legal gender if they wish to do so. 230
Unfortunately, it does seem like the choice we are currently facing is between inclusive gender recognition based on self-determination or options that cause more harm to trans* and intersex persons: procedures based on abusive requirements, or even no gender recognition at all. The main reason why inclusive gender recognition based on self-determination is still essential is consequently the fact that society does not seem to be ready for a complete abolition of gender registration. It is clear from the criticism discussed above that even the possibility of gender recognition is still extremely controversial. Self-determination and additional gender marker options are even more contentious. Many persons are clearly still very attached to the concept of gender as predetermined and immutable, and feel threatened in their own gender identity by the suggestion that this may not be the case.231 We can only imagine the backlash if complete abolition of gender registration were to be proposed. It is highly unlikely that such a proposal would come to fruition if it were suggested at this point in time.
No State has yet seriously considered the possibility of completely abolishing gender registration, and it seems risky to wait until public opinion on this subject has shifted. If gender recognition procedures based on self-determination that include non- binary persons are currently the best way to ensure trans* persons’ rights, then their implementation is a positive thing. Such procedures can be a step on the path towards full abolition of gender registration. The possibility of legally changing one’s gender and the recognition of non-binary gender identities could also be instrumental in shifting society’s view on gender and sex. Bringing the complex and non-binary nature of sex
230 Clark Hofman, ‘Male, Female, and Other: How Science, Medicine and Law Treat the Intersexed, and the Implications for Sex-Dependent Law’, ; O'Brien, ‘Can International Human Rights Law Accommodate Bodily Diversity?’, 231 David B. Cruz, ‘Disestablishing Sex and Gender’ 90 California Law Review 997, p.1006
56 and gender out into the light through such gender recognition procedures could consequently lead to the eventual abolition of gender registration. Gender recognition procedures and abolition of gender registration do not have to be in opposition to each other; on the contrary, the former could be instrumental in achieving the latter.
57 c. The origin of a right to legal gender recognition in the Council of Europe
The Parliamentary Assembly of the Council of Europe refers to a right to gender recognition in its resolution on discrimination against transgender people in Europe.232 This means this right is recognised within the Council of Europe. But how did this right come to exist? It is the result of a surprisingly rapid though nonetheless gradual and non-linear evolution within the case law of the ECtHR.
In 1980, the ECtHR received its first application concerning gender recognition in the case of Van Oosterwijck v. Belgium. A post-operative transsexual man complained that the Belgian authorities had not granted him legal recognition of his gender identity. Unfortunately, this case was declared inadmissible for failure to exhaust domestic remedies.233
The real evolution started in 1986, with Rees v. UK. In this case, a transsexual man complained that the UK did not legally recognise his factual condition as a man. Having allowed him to change his name and prefix (from “Ms.” to “Mr.”) on almost all his official documentation, the UK had refused to do the same for his birth certificate234. The Court therefore examined whether the State had a positive obligation to adapt the applicant’s birth certificate.
The applicant’s request was two-fold: that the State annotate his birth certificate to establish that he was a man, and that that annotation be kept secret from the public. The Court found that the lack of consensus about gender recognition among the Contracting States afforded the UK a wide margin of appreciation. 235 Making the annotation in the birth register confidential would require the UK to fundamentally modify its current legal system, and such secrecy would deprive third parties (such as public authorities or insurance companies) of information they had a legitimate interest to receive.236 Resolving these issues would, according to the Court, place an undue
232 Parliamentary Assembly of the Council of Europe, Resolution 2048 on discrimination against transgender people in Europe (2015) 233 Van Oosterwijck v. Belgium, App. no. 7654/76, 6 November 1980 (ECtHR) 234 Rees v. UK, App. no. 9532/81, 17 October 1986 (ECtHR) 235 Ibid., §37 236 Ibid., §43
58 burden on the UK. Given the broad margin of appreciation granted to the Contracting States to balance public and private interests, the Court ruled that positive obligations under Article 8 did not reach that far.
Nonetheless, the Court also explicitly stated that this judgment was anchored to the time and circumstances specific to the case, that “[t]he Convention always [has] to be interpreted and applied in the light of current circumstances” and that “[t]he need for appropriate legal measures should therefore be kept under review having regard particularly to scientific and societal developments”.237 In doing so, the Court left the door open to the possible creation of a right to gender recognition.
Four years later, in Cossey v. UK, the Court stated that changing the birth registry still placed an undue burden on the UK.238 It also examined scientific developments related to transsexuality and came to the conclusion that “gender reassignment surgery does not result in the acquisition of all the biological characteristics of the other sex239”. Therefore, a genuine “change of sex [was not] medically possible240” and there could be no positive obligation on the State to record such a change of sex in the birth registry. The Court ruled, as in Rees, that there had been no violation of Article 8. However, it also reiterated the need to keep the appropriate legal measures in this area under review.
In 1992, in B. v. France, the Court found the first violation of Article 8 in a case regarding gender recognition.241 The Court judged that the question of transsexuality was still too complex and uncertain to draw any decisive conclusion from the scientific, legal and societal developments in this area.242 However, the Court did find that there was a significant difference between the French and British legal systems, and that this difference affected the fair balance between public and private interests. Indeed, contrarily to the previous two cases, the French legal system did not permit the applicant to change her name, her gender marker or her social security number to reflect her gender.243 Consequently, she was much more frequently outed as trans* and
237 Ibid., §47 238 Cossey v. UK, App. no. 10843/84, 27 September 1990 (ECtHR) 239 Ibid., §40 240 Ibid., §39 241 B. v. France, App. no. 13343/87, 25 March 1992 (ECtHR) 242 Ibid., §48 243 Ibid., §52-62
59 exposed to circumstances which the Court found not to be in accordance with the respect due to her private life. Furthermore, the French birth registry system was fundamentally different from the British one. French birth certificates were meant to be updated during a person’s life244; therefore, the State would not have to make any far- reaching changes to its legislation or civil status system. Birth certificates could also only be accessed by public officials, not by the general public245; consequently, amending birth certificates was not in conflict with the public interest. The Court therefore concluded that the State failed to strike a fair balance between public and private interests, and violated Ms. B’s right to private life under Article 8.246
In Sheffield and Horsham v. UK, however, six years after B. v France, the Court upheld its rulings under Rees and Cossey.247 Despite the fact that only four out of thirty- seven analysed Member States did not allow amendment of birth certificates248, the Court ruled that there was no sufficient proof of a European consensus regarding the resolution of the issues caused by those recognitions249. According to the Court, the applicants’ negative experiences caused by the lack of recognition failed to override the State’s margin of appreciation as established under Rees and Cossey.250 Therefore, it found no violation of Article 8. Nonetheless, it pointed out that the UK had failed to take any steps to take scientific and societal developments into account since 1986, and that not having violated Article 8 in this case did not exempt the State from keeping this area under review.251
The real breakthrough happened in 2002, with Christine Goodwin v. UK.252 After looking back on its conclusions in previous cases on gender identity, the Court stated the following:
“It is of crucial importance that the Convention is interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory. A failure by the
244 Ibid., §52 245 Ibid., §52 246 Ibid., §63 247 Sheffield and Horsham v. UK, App. no. 31–32/1997/815–816/1018–1019, 30 July 1998 (ECtHR) 248 Ibid., §35 249 Ibid., §57 250 Ibid., §59 251 Ibid., §60 252 Christine Goodwin v. UK
60 Court to maintain a dynamic and evolutive approach would indeed risk rendering it a bar to reform or improvement.”253
The Court then proceeded to assess Ms. Goodwin’s complaint “in light of the current circumstances,” as it had advocated in its earlier case law.
Despite the fact that the scientific debate about the causes of trans* identity remained undecided, the Court found that “given the numerous and painful interventions involved in such surgery and the level of commitment and conviction required to achieve a change in social gender role, [it cannot] be suggested that there is anything arbitrary or capricious in the decision taken by a person to undergo gender re-assignment.”254 The Court also noted that medical progress made it possible to change almost all sex characteristics, save the chromosomal aspect, and that the existence of intersex persons proves that chromosomes are not decisive for gender identity.255
Regarding legal and societal developments, the Court overturned its ruling under Sheffield and Horsham, stating that it attached less importance to varying national approaches regarding the consequences of gender recognition than to the fact that there was a clear European and international trend towards the acceptance of trans* persons and the adoption of gender recognition procedures.256
The Court therefore found that, when gender recognition is not possible, “a conflict between social reality and law arises” due to which trans* persons experience “feelings of vulnerability, humiliation and anxiety,” which “cannot be regarded as a minor inconvenience.”257 According to the Court, the right to personal autonomy and to establish one’s individual identity are essential aspects of the right to private life under Article 8 and “[i]n the twenty first century the right of transsexuals to personal development and to physical and moral security in the full sense enjoyed by others in society cannot be regarded as a matter of controversy requiring the lapse of time to cast clearer light on the issues involved.”258 This confirms that the gender identity of transsexual persons falls within the scope of Article 8.
253 Ibid., §74 254 Ibid., §81 255 Ibid., §82 256 Ibid., §85 257 Ibid., §77 258 Ibid., §90
61 Regarding the impact of gender recognition procedures on national civil status systems, the Court ruled that “society may reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the sexual identity chosen by them at great personal cost.”259
Due to all the factors above, the Court considers that the existence of gender recognition procedures no longer falls within the State’s margin of appreciation and that the Contracting States therefore have a positive obligation to make gender recognition possible.260 The Court follows the same reasoning as in Goodwin – verbatim – in I. v. UK, on which it ruled the very same day.261 This is the inception of the right to gender recognition.
The Court confirmed the existence of the right to gender recognition soon after Goodwin, in the case of Grant v. UK.262 The State’s failure to legally recognise Ms. Grant’s gender as soon as the Goodwin judgment was passed and the consequent two-year waiting period before the Gender Recognition Law was made into law violated Ms. Grant’s right to private life under Article 8.263
Similarly, in L. v. Lithuania, the Court ruled that the lack of legislation regarding access to gender reassignment surgery indirectly barred the applicant from gender recognition. 264 Indeed, gender recognition procedures were only open to (post- operative) transsexual persons, but due to the lack of regulation on gender reassignment surgery, the applicant could not undergo the required medical treatments, and this barred him from gender recognition. 265 This legislative gap violated the applicant’s right to gender recognition and therefore Article 8 as well.266
Most recently, in X. v. the Former Yugoslavian Republic of Macedonia, the Court ruled that a series of domestic judgments regarding legal gender recognition did not
259 Ibid., §91 260 Ibid., §93 261 I. v. UK, App. no. 25680/94, 11 July 2002 (ECtHR) 262 Grant v. UK App. no. 32570/03, 23 May 2006 (ECtHR) 263 Ibid., §41&43 264 L. v. Lithuania, App. no. 27527/03, 11 September 2007 (ECtHR) 265 Ibid., §57 266 Ibid., §59
62 provide for a sufficient legal framework for gender recognition.267 In line with its reasoning in Goodwin, the Court ruled that this situation violated Article 8 ECHR.268
267 X v. FYROM App. no. 29683/16, 11 January 2019 (ECtHR) 268 Ibid., §71
63 4. The evolution of abusive requirements for gender recognition in the Council of Europe’s most progressive Member States: defining the scope of the research domain
a. Which Council of Europe Member States can be considered the “most progressive” regarding gender recognition?
It would, of course, be far beyond the scope of a Master’s dissertation to establish the global evolution regarding gender recognition. Luckily, if one wants to study the evolution of national legislation, the pool to draw from becomes a lot more limited, since only a minority of countries have made legal gender recognition possible. Specifically studying abusive requirements for gender recognition limits this study even further: most countries that have implemented gender recognition procedures still make them dependent on abusive requirements. Since the purpose of this study is to map the evolution of abusive requirements in national legislation, this study will be limited to the countries that have implemented gender recognition procedures based mainly on self- determination in their national legislation and that have consequently (almost) entirely abolished any abusive requirements.
As we have seen and will expand upon later, the ECtHR has been quite prolific with judgments regarding gender recognition. Studying these judgments’ interaction with national legislation could certainly help elucidate the evolution of abusive requirements in gender recognition procedures. Therefore, I will further limit myself to those states that fall under the ECtHR’s jurisdiction, i.e. Member States of the Council of Europe. In recent years, a few of these States have amended their national legislation to eliminate all abusive requirements with the purpose of basing their national legislation on self-determination and personal autonomy.
For the purposes of this study, States will be considered to have made efforts to base their gender recognition on self-determination if they meet a number of conditions, as established in the soft law of the Council of Europe.269 The first of those conditions must, of course, be that any requirements that might force a trans* person to choose
269 Commissioner for Human Rights of the Council of Europe, Human Rights and Gender Identity
64 between gender recognition and another human right have been eliminated from the State’s national legislation. The second is that gender recognition procedures must be administrative, as requiring judicial procedures gives a judge disproportionate power over a person’s identity. Countries that do not require medical intervention for gender recognition but do require state intervention have adopted the so-called self-declaration model. They can, as such, not be included in this study, since it focuses only on States that have adopted the self-determination model, which aims to eliminate all types of intervention in gender recognition procedures. Thirdly, gender recognition procedures must be enshrined in national law; this means that they must be available throughout the State’s entire territory. Regional regulation does not suffice.
Consequently, this study will focus on European countries where gender recognition is possible without having fulfilled any abusive requirements, by means of a simple administrative procedure, and throughout the entire country. For reasons of timing, I will only be including countries that have amended their national legislation before December 31st 2018 in this study.
It is easy to exclude the Council of Europe Member States that have not yet implemented gender recognition procedures. This eliminates Albania, Andorra, Armenia, Austria, Azerbaijan, Bulgaria, Cyprus, Georgia, Kosovo, Latvia, Liechtenstein, Lithuania, Macedonia, Moldova, Monaco, San Marino, and Serbia, i.e. seventeen countries, from the scope of this study.270
Looking at which States have not abolished all abusive requirements for gender recognition narrows down the list even further: Belarus, Bosnia-Herzegovina, Croatia, Czech Republic, Estonia, Finland, Germany, Greece, Hungary, Iceland, Italy, Montenegro, the Netherlands, Poland, Romania, Russia, Slovakia, Slovenia, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom have yet to eliminate all abusive requirements for gender recognition.271 States such as Germany, the Netherlands and the UK are very close, but all three of them still require a diagnosis of gender dysphoria, which in turn means that their procedures are not based on self-determination.272 In the case of Germany and the UK, self-determination is further limited by the fact that gender
270 TGEU, Trans Rights Europe Index 2018 271 Ibid. 272 Ibid.
65 recognition is controlled by a court, and not obtained through an administrative procedure.273 The UK is currently looking at updating the Gender Recognition Act, but this project is still in the consultation phase.274
Two last States have eliminated all abusive requirements but must nonetheless be excluded from this study, because they do not comply with the other conditions. Despite France’s recent abolition of abusive requirements, the French gender recognition procedure is still judicial, not administrative.275 Spain, lastly, cannot be included in this study because administrative gender recognition procedures based on self-determination have only been implemented in the regulation of certain Spanish provinces.276
This leaves us with seven States that fall within the scope of this study. Concretely, those countries are Denmark (since 2014), Malta (since 2015), Ireland (since 2015), Norway (since 2016), Belgium (since 2018), Portugal (since 2018) and Luxembourg (since 2018). 277 Despite the fact that they have all implemented administrative gender recognition procedures based on self-determination, there are still some differences between the national legislation of those States. Most notably, there is significant variation on the topic of age restrictions. Gender recognition may be available regardless of age, from the age of sixteen onwards, or be restricted to adults and emancipated minors.278 I will study these variations closely when analysing these seven States’ national legislation under heading 5.e. (National Legislation in the most progressive Member States of the Council of Europe).
273 Ibid. 274 Ibid. 275 Ibid. 276 Ibid. 277 L 182 Lov 11 Juni 2014 om ændring af lov om Det Centrale Personregister (Tildeling af nyt personnummer til personer, der oplever sig som tilhørende det andet køn) (Denmark), Gender Identity, Gender Expression And Sex Characteristics Act of 14 April 2015 (Malta), Gender Recognition Act of July 22 2015 (Ireland), Prop. 74 L (2015–2016) Lov om endring av juridisk kjønn (Norway), Wet tot hervorming van regelingen inzake transgenders wat de vermelding van een aanpassing van de registratie van het geslacht in de akten van de burgerlijke stand en de gevolgen hiervan betreft (Belgium), Lei n.º 38/2018 de 7 de agosto Direito à autodeterminação da identidade de género e expressão de género e à proteção das características sexuais de cada pessoa (Portugal), Loi du 10 août 2018 relative à la modification de la mention du sexe et du ou des prénoms à l’état civil et portant modification du Code civil (Luxembourg) 278 Ibid.; cf. section 6(a)(ii)
66 b. Driving factors for the evolution of abusive requirements for gender recognition
It is, quite logically, impossible to study the evolution of abusive requirements for gender recognition without determining the driving factors behind such an evolution. Since the topic of this study is the evolution in national legislation, such driving factors can best be determined by consulting the preparatory documents for the national legislation. Having determined which countries will be analysed in this study, it is the preparatory work for these seven national laws that must be examined. These preparatory documents cite a variety of inspiration sources. These can be divided into a few categories for optimal evaluation.
The first obvious category, which resurfaces in every preparatory document, is international soft law. The Yogyakarta Principles, for example, seem to be considered an important gauge for best practice. 279 Organs of the Council of Europe are also ubiquitous. The most cited publications are the Commissioner for Human Rights’ Report on Human Rights and Gender Identity280, the Council of Ministers’ Recommendation CMRec(2010)5 on measures to combat discrimination of the grounds of sexual orientation and gender identity281, and three resolutions of the Parliamentary Assembly: Resolutions 1728 (Discrimination on the grounds of sexual orientation and gender identity), 1945 (Putting an end to coerced sterilisations and castrations) and 2048 (Discrimination against transgender people in Europe)282. The European Parliament’s resolution on human rights, sexual orientation and gender identity, voted at the United Nations’
Human Rights Council, is also oft-repeated.283
279 International Commission of Jurists and International Service for Human Rights, Yogyakarta Principles: Principles on the application of international human rights law in relation to sexual orientation and gender identity (2007) 280 Commissioner for Human Rights of the Council of Europe, Human Rights and Gender Identity 281 Committee of Ministers of the Council of Europe, Recommendation on measures to combat discrimination on grounds of sexual orientation or gender identity 282 Parliamentary Assembly of the Council of Europe, Resolution 1728 on discrimination on the basis of sexual orientation and gender identity (2010), Parliamentary Assembly of the Council of Europe, Resolution 1945 on putting an end to coerced sterilisations and castrations, Parliamentary Assembly of the Council of Europe, Resolution 2048 on discrimination against transgender people in Europe 283 European Parliament, Resolution on sexual orientation and gender identity at the UN Human Rights Council (P7_TA(2011)0427, 2011)
67 Jurisprudence also seems to be an essential factor driving the evolution of national legislation. ECtHR case law on gender recognition is omnipresent in the preparatory documents of the selected national laws.284 This illuminates the importance of ECtHR judgments in this study. Other international jurisprudence may not be present in these preparatory documents, but it might still have had an impact on other factors for this evolution. Therefore, it cannot simply be discounted.
Another ubiquitous element in these preparatory documents is the influence of other countries. Foreign jurisprudence may be cited, as is the case for certain trend- setting judgements from major national courts.285 More often, however, it is foreign national legislation that serves as a model. The first countries to implement gender recognition procedures based on self-determination seem to have primarily searched for examples in a smorgasbord of states, whether they be European, Latin American, Asian or Oceanian.286 Their followers, however, focus primarily on a few model States. Argentina is cited as inspiration in all preparatory documents287, but so are Denmark, Malta and Ireland in the Norwegian, Belgian, Portuguese and Luxembourgish commentaries288. It is therefore clear that foreign legal systems do have a significant
284 Danish Working Group on legal gender recognition, Rapport fra arbejdsgruppen om juridisk kønsskifte (2012-270-0021, 2014), p.27-31; Neil Falzon, A Proposed Gender Identity Act for Malta (2010), p.12; Gender Recognition Advisory Group, Report to Joan Burton, T.D., Minister for Social Protection (2011), p.22-26; Innstilling 315 L til Stortinget fra helse- og omsorgskomiteen (2015-2016), p.5; Helse - og omsorgdepartement, 2016 #223}, p.10-11; Belgian Chamber of Representatives, Wetsontwerp tot hervorming van regelingen inzake transgenders wat de vermelding van een aanpassing van de registratie van het geslacht in de akten van de burgerlijke stand en de gevolgen hiervan betreft (Parl Doc 2403/001, 4 April 2017), p.6; Luxembourgian Chamber of Representatives, Projet de loi relative à la modification de la mention du sexe et du ou des prénoms à l’état civil et portant modification du Code civil (Parl Doc No 7146, 31 May 2017), p.2 285 Danish Working Group on legal gender recognition, Rapport fra arbejdsgruppen om juridisk kønsskifte, p.36-41; Gender Recognition Advisory Group, Report to Joan Burton, T.D., Minister for Social Protection, p.26 286 Danish Working Group on legal gender recognition, Rapport fra arbejdsgruppen om juridisk kønsskifte, p.36-41; Falzon, A Proposed Gender Identity Act for Malta, p.26;Gender Recognition Advisory Group, Report to Joan Burton, T.D., Minister for Social Protection, p.26; Helsedirektoratet, Rett til rett kjønn - helse til alle kjønn (2015), p.92- 102; Belgian Chamber of Representatives, Wetsontwerp tot hervorming van regelingen inzake transgenders wat de vermelding van een aanpassing van de registratie van het geslacht in de akten van de burgerlijke stand en de gevolgen hiervan betreft, p.7; Bloco de Esquerda, PROJETO DE LEI N.º 242/XIII/1.ª (2016), p.6-7; Luxembourgian Chamber of Representatives, Projet de loi relative à la modification de la mention du sexe et du ou des prénoms à l’état civil et portant modification du Code civil, p.8 287 Danish Working Group on legal gender recognition, Rapport fra arbejdsgruppen om juridisk kønsskifte, p.36-41; Falzon, A Proposed Gender Identity Act for Malta, p.26;Gender Recognition Advisory Group, Report to Joan Burton, T.D., Minister for Social Protection, p.26; Helsedirektoratet, Rett til rett kjønn - helse til alle kjønn, p.92-102; Belgian Chamber of Representatives, Wetsontwerp tot hervorming van regelingen inzake transgenders wat de vermelding van een aanpassing van de registratie van het geslacht in de akten van de burgerlijke stand en de gevolgen hiervan betreft, p.7; Bloco de Esquerda, PROJETO DE LEI N.º 242/XIII/1.ª, p.6-7; Luxembourgian Chamber of Representatives, Projet de loi relative à la modification de la mention du sexe et du ou des prénoms à l’état civil et portant modification du Code civil, p.8 288 Helsedirektoratet, Rett til rett kjønn - helse til alle kjønn, p.92-102; Belgian Chamber of Representatives, Wetsontwerp tot hervorming van regelingen inzake transgenders wat de vermelding van een aanpassing van de registratie van het geslacht in de akten van de burgerlijke stand en de gevolgen hiervan betreft, p.7; Bloco de Esquerda,
68 impact on the implementation of new national legislation. States frequently cite their own, older legislation as well, showcasing how the new proposal fits seamlessly within their own legal system.289 This study should consequently not only focus on the influence of foreign laws, but also on that of the State’s own national legislation.
The last discernable category is that of the non-legal influences. Since society and law are in constant dialogue with one another, it is not surprising that the former influences the latter. This influence can be roughly separated into two distinct categories.
The first is the social sphere. The authors of legislative proposals largely base their suggestions on recommendations from activist groups and organisations gathered during public consultations. These activists may be well-known, international NGO’s, such as Transgender Europe, International Lesbian, Gay, Bisexual, Trans and Intersex Association (hereafter: ILGA) and Amnesty International, but they are also often smaller, national activist groups and organisations. 290 As it would be overly ambitious to extensively study the titanic amount of work done by trans* activists and organisations, I will limit myself to the analysis of the direct impact that they have had on national legislation. Therefore, I will only include them in my extensive analysis of references of the preparatory documents of national laws.
Beyond such social influences, a second non-legal authority regarding legislation on gender recognition is the scientific and medical world. Medical guidelines such as the DSM-V, WPATH and the WHO seem to be an integral part of the context within which legislators make their decisions. More specific studies, whether specifically on trans*
PROJETO DE LEI N.º 242/XIII/1.ª, p.6-7; Luxembourgian Chamber of Representatives, Projet de loi relative à la modification de la mention du sexe et du ou des prénoms à l’état civil et portant modification du Code civil, p.8 289 Danish Working Group on legal gender recognition, Rapport fra arbejdsgruppen om juridisk kønsskifte, p.36-41; Falzon, A Proposed Gender Identity Act for Malta, p.26; Gender Recognition Advisory Group, Report to Joan Burton, T.D., Minister for Social Protection, p.24; Belgian Chamber of Representatives, Wetsontwerp tot hervorming van regelingen inzake transgenders wat de vermelding van een aanpassing van de registratie van het geslacht in de akten van de burgerlijke stand en de gevolgen hiervan betreft, p.6; Bloco de Esquerda, PROJETO DE LEI N.º 242/XIII/1.ª, p.2-3; Luxembourgian Chamber of Representatives, Projet de loi relative à la modification de la mention du sexe et du ou des prénoms à l’état civil et portant modification du Code civil, p.8 290 Danish Working Group on legal gender recognition, Rapport fra arbejdsgruppen om juridisk kønsskifte, p.43; Gender Identity, Gender Expression and Sex Characteristics Act: Public Consultation (29 October 2014); Gender Recognition Advisory Group, Report to Joan Burton, T.D., Minister for Social Protection, p.55; see also Joint Committee on Education and Social Protection, Report on the General Scheme of a Gender Recognition Bill (ESP31011, 2014); Helsedirektoratet, Rett til rett kjønn - helse til alle kjønn, p.129-146; Belgian Chamber of Representatives, Parl. Doc. 2403/004: Report by the Commission for Justice (19 May 2017), p.33-60; Pessoas-Animais-Natureza, Projecto-Lei n.º 317/XIII/2ª (2016), p.2: Intersex and Transgender Luxembourg, Avis d’Intersex & Transgender Luxembourg A.S.B.L. (Parl Doc 7146/9, 26 April 2018)
69 health or the aptness of gender recognition procedures based on self-determination also play a role. Specifically, the scientific trend towards depathologisation of trans* identities is a recurring argument used by national legislators.291 I will therefore analyse the impact of the medical field under the heading “international trend towards depathologisation”.
I have consequently discerned four driving factors for the evolution of abusive requirements for gender recognition: soft law, international trend towards depathologisation, jurisprudence, and national legal systems. I shall study them each in turn in order to determine how they interact to drive the evolution towards the elimination of abusive requirements in gender recognition procedures.
291 Gender Recognition Advisory Group, Report to Joan Burton, T.D., Minister for Social Protection; Helse - og omsorgdepartement, Prop. 74 L (2015–2016) Proposisjon til Stortinget (forslag til lovvedtak) Lov om endring av juridisk kjønn (2016); Belgian Chamber of Representatives, Parl. Doc. 2403/004: Report by the Commission for Justice; Presidência Do Conselho De Ministros, Proposta de Lei n.º 75/XIII (2017), p.2; Luxembourgian Chamber of Representatives, Projet de loi relative à la modification de la mention du sexe et du ou des prénoms à l’état civil et portant modification du Code civil, p.7; ibid., p.3
70 5. The evolution of abusive requirements for gender recognition in the Council of Europe’s most progressive Member States: an analysis
a. International soft law
i. Yogyakarta Principles
Arguably the most influential soft law document when it comes to trans* rights and gender recognition are the Yogyakarta Principles.292 Drafted in 2007 by a committee of experts appointed by the International Commission of Jurists and the International Service for Human Rights, on behalf of a coalition of human rights organisations, the Yogyakarta Principles contain a number of recommendations to States in order to promote the rights of LGBTQ+ persons. Those principles have been amended in 2017 by the Yogyakarta Principles Plus 10, which contain ten additional recommendations as well as addenda to the existing principles.293 Five of these principles are relevant to abusive requirements for gender recognition: Principle 3 (The Right to Recognition before the Law), Principle 10 (The Right to Freedom from Torture and Cruel, Inhuman or Degrading Treatment or Punishment), Principle 18 (Protection from Medical Abuses), Principle 31 (The Right to Legal Recognition) and Principle 32 (The Right to Bodily and
Mental Integrity).
Principle 3 (The Right to Recognition before the Law) is rather self-evident. It recommends that States:
B. Take all necessary legislative, administrative and other measures to fully respect and legally recognise each person’s self-defined gender identity;
C. Take all necessary legislative, administrative and other measures to ensure that procedures exist whereby all State-issued identity papers which indicate a person’s
292 International Commission of Jurists and International Service for Human Rights, Yogyakarta Principles: Principles on the application of international human rights law in relation to sexual orientation and gender identity 293 International Commission of Jurists and International Service for Human Rights, Yogyakarta Principles plus 10: Additional principles and state obligations on the application of international human rights law in relation to sexual orientation, gender identity, gender expression and sex characteristics to complement the Yogyakarta Principles (2017)
71 gender/sex — including birth certificates, passports, electoral records and other documents — reflect the person’s profound self-defined gender identity;
D. Ensure that such procedures are efficient, fair and non-discriminatory, and respect the dignity and privacy of the person concerned;
E. Ensure that changes to identity documents will be recognised in all contexts where the identification or disaggregation of persons by gender is required by law or policy.294
Furthermore, it declares: “No one shall be forced to undergo medical procedures, including sex reassignment surgery, sterilisation or hormonal therapy, as a requirement for legal recognition of their gender identity. No status, such as marriage or parenthood, may be invoked as such to prevent the legal recognition of a person’s gender identity.”295 This is a clear condemnation of abusive requirements for gender recognition, as it prohibits such conditions as mandatory medical procedures, obligatory divorce and diminishment of parental rights.
Ten years later, in Principle 31 (The Right to Legal Recognition), the Yogyakarta Principles take a step further: they encourage the abolition of sex and gender registration, stating that legal recognition should not require disclosure of one’s sex, gender, or related characteristics. As long as gender registration is still required, the Yogyakarta Principles double down on abusive requirements and multiple gender marker options. States must:
A. Ensure that official identity documents only include personal information that is relevant, reasonable and necessary as required by the law for a legitimate purpose, and thereby end the registration of the sex and gender of the person in identity documents such as birth certificates, identification cards, passports and driver licences, and as part of their legal personality;
B. Ensure access to a quick, transparent and accessible mechanism to change names, including to gender-neutral names, based on the self-determination of the person;
C. While sex or gender continues to be registered:
294 International Commission of Jurists and International Service for Human Rights, Yogyakarta Principles: Principles on the application of international human rights law in relation to sexual orientation and gender identity, Principle 3 295 Ibid.
72 i. Ensure a quick, transparent, and accessible mechanism that legally recognises and affirms each person’s self-defined gender identity;
ii. Make available a multiplicity of gender marker options;
iii. Ensure that no eligibility criteria, such as medical or psychological interventions, a psycho-medical diagnosis, minimum or maximum age, economic status, health, marital or parental status, or any other third party opinion, shall be a prerequisite to change one’s name, legal sex or gender;
iv. Ensure that a person’s criminal record, immigration status or other status is not used to prevent a change of name, legal sex or gender.296
Principles 10, 18 and 32 are of high importance specifically regarding medical abusive requirements. They respectively ensure freedom from torture and cruel, degrading and inhuman treatment, protection from medical abuses and the right to bodily and mental integrity. In the additional recommendations to Principle 10 as established in Yogyakarta Plus 10, it is explicitly stated that coerced sex reassignment surgery may amount to inhuman treatment and that such medical procedures can only be administered with the “free, prior and informed consent of the person concerned297”. Principle 18 states: “No person may be forced to undergo any form of medical or psychological treatment, procedure, testing, or be confined to a medical facility, based on sexual orientation or gender identity.”298 It also prohibits surgeries on intersex children: “[States shall] take all necessary legislative, administrative and other measures to ensure that no child’s body is irreversibly altered by medical procedures in an attempt to impose a gender identity without the full, free and informed consent of the child in accordance with the age and maturity of the child and guided by the principle that in all actions concerning children, the best interests of the child shall be a primary consideration.” Principle 32, finally, provides that “[n]o one shall be subjected to invasive or irreversible medical procedures that modify sex characteristics without their free, prior and informed consent,
296 International Commission of Jurists and International Service for Human Rights, Yogyakarta Principles plus 10: Additional principles and state obligations on the application of international human rights law in relation to sexual orientation, gender identity, gender expression and sex characteristics to complement the Yogyakarta Principles, Principle 31 297 Ibid., Principle 10 298 International Commission of Jurists and International Service for Human Rights, Yogyakarta Principles: Principles on the application of international human rights law in relation to sexual orientation and gender identity, Principle 18
73 unless necessary to avoid serious, urgent and irreparable harm to the concerned person.299” It once more prohibits non-consensual surgeries performed on intersex children. Furthermore, Principle 32 could be interpreted to further prohibit mandatory diagnoses, since it calls for States to:
G. Prohibit the use of anal and genital examinations in legal and administrative proceedings and criminal prosecutions unless required by law, as relevant, reasonable, and necessary for a legitimate purpose.300
Considering all the recommendations described above, it is clear that the Yogyakarta Principles and their addendum resolutely condemn abusive requirements for gender recognition, and indeed gender registration in itself as well.
ii. United Nations
At the UN level, gender recognition was first mentioned in periodic reports on State Parties in 2008. The Human Rights Committee expressed concern about the lack of gender recognition procedures in Ireland301, but congratulated the UK on its 2004 Gender Recognition Act302. Shortly thereafter, the Committee for the Elimination of All Forms of Discrimination against Women (hereafter: CEDAW) stated that discrimination against women is inextricably tied into factors of intersectionality, amongst which the Committee cites gender identity.303 Four years later, it explicitly mentioned the need to protect the right of trans* women on the same level as those of other women.304 This obligation has been repeated in several general recommendations since.305
299 Ibid. 300 International Commission of Jurists and International Service for Human Rights, Yogyakarta Principles plus 10: Additional principles and state obligations on the application of international human rights law in relation to sexual orientation, gender identity, gender expression and sex characteristics to complement the Yogyakarta Principles, Principle 32 301 UN Human Rights Committee, Concluding observations of the Human Rights Committee: Ireland (CCPR/C/IRL/CO/3, 2008), §8 302 UN Human Rights Committee, Concluding observations of the Human Rights Committee: United Kingdom Of Great Britain And Northern Ireland (CCPR/C/GBR/CO/6, 2008), §5 303 CEDAW, General recommendation No. 28 on the core obligations of States parties under article 2 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW/C/GC/28, 2010) 304 CEDAW, General recommendation No. 32 on the gender-related dimensions of refugee status, asylum, nationality and statelessness of women (CEDAW/C/GC/32, 2014) 305 See for example CEDAW, General recommendation No. 35 on gender-based violence against women, updating general recommendation No. 19 (CEDAW/C/GC/35, 2017)
74 In 2011, the UN Human Rights Council (hereafter: UNHRC) adopted Resolution 17/19, which requested the UN High Commissioner for Human Rights (hereafter: High Commissioner for Human Rights) to commission a study regarding discriminatory laws and practices based on sexual orientation and gender identity.306 Citing the Council of Europe’s High Commissioner for Human Rights’ report on human rights and gender identity (cf. below) as well as the HRC’s concluding observations on Ireland and the UK, this report found that:
“71. In many countries, transgender persons are unable to obtain legal recognition of their preferred gender, including a change in recorded sex and first name on State- issued identity documents. As a result, they encounter many practical difficulties, including when applying for employment, housing, bank credit or State benefits, or when travelling abroad.
72. Regulations in countries that recognize changes in gender often require, implicitly or explicitly, that applicants undergo sterilization surgery as a condition of recognition. Some States also require that those seeking legal recognition of a change in gender be unmarried, implying mandatory divorce in cases where the individual is married.”307
It is clear from this report that the High Commissioner for Human Rights understands why gender recognition is such an essential right. This report points out the practical consequences of denying trans* persons gender recognition. The High Commissioner for Human Rights also explicitly names certain abusive requirements for gender recognition. Sterilisation and mandatory divorce are, according to this report, considered discriminatory practices, and the High Commissioner for Human Rights concludes by recommending that States
“(h) Facilitate legal recognition of the preferred gender of transgender persons and establish arrangements to permit relevant identity documents to be reissued reflecting preferred gender and name, without infringements of other human rights.”308
306 UNHRC, Rsolution 17/19 on Human rights, sexual orientation and gender identity (A/HRC/RES/17/19, 2011) 307 UN High Commissioner for Human Rights, Report to the UNHRC on discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity (A/HRC/19/41, 2011), §71-72 308 Ibid., §84
75 In 2015, the UNHRC requested an update to this report with a focus on sharing good practices.309 In this update, the High Commissioner for Human Rights reiterates the need for gender recognition procedures, and, referring to the same concluding observations as the previous report, expands upon the abusive requirements for gender recognition:
“70. Regulations in States that recognize changes in gender often impose abusive requirements as a precondition of recognition – for example, by requiring that applicants be unmarried and undergo forced sterilization, forced gender reassignment and other medical procedures, in violation of international human rights standards.”310
This High Commissioner for Human Rights report, unlike the previous one, states that mandatory sex reassignment surgery and other medical procedures are abusive requirements. Moreover, it explicitly states that such requirements violate trans* persons’ human rights. It then goes on to praise States that have eliminated abusive requirements311 and makes the following recommendations:
(g) Banning “conversion” therapy, involuntary treatment, forced sterilization and forced genital and anal examinations312;
(h) Prohibiting medically unnecessary procedures on intersex children313;
[…]
(i) Issuing legal identity documents, upon request, that reflect preferred gender, eliminating abusive preconditions, such as sterilization, forced treatment and divorce314.
Around the same time, Juan E. Méndez, the former UN Special Rapporteur on torture and other cruel, inhuman and degrading treatment, submitted a report specifically regarding women, girls and LGBT persons to the UNHRC.315 In this report,
309 UN High Commissioner for Human Rights, Report to the UNHRC on Discrimination and violence against individuals based on their sexual orientation and gender identity 310 Ibid., §70 311 Ibid., §73 312 Ibid., §79 313 Ibid., §79 314 Ibid., §80 315 Méndez, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment to the UNHRC
76 the Special Rapporteur stresses that certain abusive requirements for gender recognition may constitute cruel, inhuman and degrading treatment:
“In States that permit the modification of gender markers on identity documents abusive requirements can be imposed, such as forced or otherwise involuntary gender reassignment surgery, sterilization or other coercive medical procedures (A/HRC/29/23316). Even in places with no legislative requirement, enforced sterilization of individuals seeking gender reassignment is common. These practices are rooted in discrimination on the basis of sexual orientation and gender identity, violate the rights to physical integrity and self-determination of individuals and amount to ill-treatment or torture.”317
The fact that these abusive requirements for gender recognition fall within the mandate of the UN Special Rapporteur on Torture makes it clear to which extent they violate the fundamental human rights of trans* persons. Accordingly, the Special Rapporteur called on States to:
“(e) Outlaw forced or coerced sterilization in all circumstances and provide special protection to individuals belonging to marginalized groups; and ensure that health-care providers obtain free, full and informed consent for such procedures and fully explain the risks, benefits and alternatives in a comprehensible format, without resorting to threats or inducements, in every case;
[…]
(h) Adopt transparent and accessible legal gender recognition procedures and abolish requirements for sterilization and other harmful procedures as preconditions;
(i) Repeal laws that allow intrusive and irreversible treatments of lesbian, gay, bisexual, transgender and intersex persons, including, inter alia, genital-normalizing surgeries and “reparative” or “conversion” therapies, whenever they are enforced or administered without the free and informed consent of the person concerned.”318
316 This refers to the High Commissioner for Human Rights’ report on discrimination and violence based on gender identity (cf. above.) 317 Méndez, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment to the UNHRC, §49 318 Ibid., §72
77 Also in 2016, the Committee on Economic, Social and Cultural Rights issued its General Comment No. 22 on the right to sexual and reproductive health, in which it indicated that: “[l]aws and policies that indirectly perpetuate coercive medical practices, including incentive- or quota-based contraceptive policies and hormonal therapy, as well as surgery or sterilization requirements for legal recognition of one’s gender identity,
319 constitute additional violations of the obligation to respect.”
These reports by the High Commissioner for Human Rights and the Special Rapporteur on Torture culminated in the adoption by the UNHRC of a resolution that appointed an Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity.320 This Independent Expert, Vitit Muntarbhorn, identified six underpinnings regarding the rights of LGBTQI+ persons, one of which was legal gender recognition.321 Regarding gender recognition, he states that “[n]on-recognition is interlinked with the environment that leads to violence and discrimination. In some situations, [trans* persons] are forced to undergo gender reassignment surgery, other medical procedures, such as psychological assessment, conversion therapy, sterilization and also divorce, with or without legal recognition of their self-identified gender.”322 He continues by pointing out that “a number of countries, such as Argentina, Australia, Malta, and Scandinavian countries, are now leading the way by enabling people to have their selfidentified gender recognized under national law without the need for surgery and related medical procedures, unless they opt for the latter on a non-coerced basis, and by reducing the bureaucratic hurdles along the way” and stresses the “need to move towards legal recognition of selfdefined gender identity without coerced methods.”323
Referring to the two previously discussed reports of the High Commissioner for Human Rights, Mr. Muntarbhorn’s successor, Victor Madrigal-Borloz, once more stresses the violent nature of medical abusive requirements: “Moreover, trans persons are also victim of violence in health-care settings. In order to practice their right to recognition
319 CESCR, General comment No. 22, on the right to sexual and reproductive health. (E/C12/GC/22, 2016), §58 320 UNHRC, Resolution 32/2 on Protection against violence and discrimination based on sexual orientation and gender identity (A/HRC/RES/32/2, 2016) 321 Vitit Muntarbhorn, Report of the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity to the UNHRC (A/HRC/35/36, 2017), p.15-18 322 Ibid., §57 323 Ibid., §57
78 before the law, they are regularly forced into involuntary psychiatric evaluations, unwanted surgeries, sterilization or other coercive medical procedures, often justified by discriminatory medical classifications.324” For these reasons, he recommends that “States enact gender recognition laws concerning the rights of trans persons to change their name and gender markers on identification documents. Such procedures should be quick, transparent and accessible, without abusive conditions, and respectful of the principle of free and informed choice, and of personal integrity.325”
Both Independent Experts also submitted a report to the General Assembly of the UN. As announced in Mr. Muntarbhorn’s report326, Mr. Madrigal-Borloz’ report focuses on two thematic areas which are extremely relevant to the topic of this study: the depathologisation of trans* identities and legal gender recognition327. As the trend towards depathologisation will be described extensively in section 4.c, this section shall focus exclusively on gender recognition in itself.
An entire section of the Independent Expert’s report for the General Assembly is devoted to abusive requirements for gender recognition. It lists “forced, coerced or otherwise involuntary sterilization; medical procedures related to transition, including surgeries and hormonal therapies; undergoing medical diagnosis, psychological appraisals or other medical procedures or treatment; as well as third-party consent for adults, forced divorce and age-of-offspring restrictions.328” Referring to the Special Rapporteur on Torture, General Comment 22 of the CESCR, the UN interagency statement on eliminating coerced sterilisation (cf. below), the High Commissioner for Human Rights’s statement on depathologisation for International Day Against Homophobia, Transphobia and Biphobia (hereafter: IDAHOT) 2016 (cf. below), the ECtHR’s judgment in A.P., Garçon et Nicot, the Human Rights Committee’s judgment in G. v. Australia, as well as
324 Victor Madrigal-Borloz, Report of the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity to the UNHRC (A/HRC/38/43, 2018), §44 325 Ibid., §98 326 Vitit Muntarbhorn, Report of the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity to the General Assembly (A/72/172, 2017), §56 327 Madrigal-Borloz, Report by the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity to the General Assembly, §8 328 Ibid., §28
79 several submissions by trans* activist organisations, the Independent Expert calls for the abolition of such abusive requirements.329
The Independent Expert also specifically focuses on age restrictions for gender recognition. Citing the Committee on the Rights of the Child330 , he stresses that excluding minors from gender recognition has been proven to have significant negative impact on them. Consequently, when considering the best interests of the child, States must assess this impact, as well as respect the obligation – pursuant to Article 19 of the Convention on the Rights of the Child – to take into account safeguards that give recognition to the autonomy and decisional power of children of a certain age in other areas.331
The Independent Expert’s recommendations to States accordingly strongly condemn abusive requirements for gender recognition, and call for procedures based on self-determination, including for minors:
“(a) Enact recognition systems for the gender identity of trans and gender-diverse children, taking into account the best interests of the child as a primary consideration and respect for the child’s right to express views in accordance with age and maturity, in line with the Convention on the Rights of the Child (arts. 3 (1) and 12 and general comments Nos. 12 and 14) and, in particular, in keeping with the safeguards established pursuant to article 19 of the Convention, which must not be excessive or discriminatory in relation to other safeguards that give recognition to the autonomy and decisional power of children of a certain age in other areas. States should also fulfil their obligation to ensure to the maximum extent possible the survival and development of the child (art. 6 and general comment No. 5) and the creation of an environment that respects human dignity;
(b) Eliminate abusive requirements as prerequisites for change of name, legal sex or gender, including forced, coerced or otherwise involuntary sterilization; medical procedures related to transition, including surgeries and hormonal therapies; undergoing medical diagnosis, psychological appraisals or other medical or psychosocial procedures or treatment; requirements relating to economic status; health; marital, family or parental status; and any third-party opinion. This should extend to ensuring that a person’s criminal
329 Ibid. 330 Ibid., §34 331 Ibid., §35
80 record, immigration status or other status is not used to prevent a change of name, legal sex or gender;
[…]
(d) Enact gender recognition systems concerning the rights of trans persons to change their name and gender markers on identification documents. The procedure involved should ensure due respect for free and informed choice and bodily autonomy. In particular, taking into account identified best practices, the processes should:
(i) Be based on self-determination by the applicant;
(ii) Be a simple administrative process;
(iii) Be confidential;
(iv) Be based solely on the free and informed consent of the applicant without requirements such as medical and/or psychological or other certifications that could be unreasonable or pathologizing;
(v) Acknowledge and recognize non-binary identities, such as gender identities that are neither “man” nor “woman” and offer a multiplicity of gender marker options;
(vi) Be accessible and, to the extent possible, cost-free;
(e) Examine seemingly neutral requirements that are prerequisites for change of name, legal sex or gender for potential or actual disproportionate effects in the light of the realities of the trans populations in each given context.”332
The Independent Expert bases these recommendations on a plethora of sources: UN institutions, the Council of Europe – notably the Commissioner for Human Rights’ report, – the European Parliament, the Organisation of American States – notably the IACtHR’s advisory opinion – legislative changes in Argentina, Malta, Denmark, Sweden, France, Hungary, Austria, Belgium, Norway, Ireland, and many more, as well as judicial action in Botswana, Kenya, Chile, Colombia, Ecuador, Bangladesh, India, Nepal, Pakistan, etc.333 This shows that there are influences aplenty in the evolution towards the abolition of abusive requirements for gender recognition, and that these influences also influence each other.
332 Ibid., §81 333 Ibid., §41-74
81 The UN has also published “Living free and equal”, a study of the worldwide practices regarding the rights of LGBTQI+ persons. While the study does find that “[a] handful of States legally recognize the gender identity of trans adults and children on the basis of self-identification through a simple administrative process without abusive requirements; one State guarantees the right to access gender affirming treatment, and a small number recognize non-binary gender identities,334” it deplores that “[c]ritically, most States do not recognize trans people’s gender identity; the majority of those that do continue to impose abusive preconditions that violate international human rights standards, national and international medical classifications continue to pathologize trans persons and identities. 335 ” This study refers to the three UNHRC resolutions, the consequent reports336, and focuses in particular on best state practices337.
Another UN initiative regarding abusive requirements for gender recognition is the United Nations Development Programme’s “Advancing the Human Rights and Inclusion of LGBTI People: A Handbook for Parliamentarians”.338 This handbook urges parliamentarians to take action to protect the rights of LGBTQI+ persons, citing the Argentinian and Maltese law reforms regarding gender recognition as examples339.
“Eliminating forced, coercive and otherwise involuntary sterilization”, an interagency statement by the High Commissioner for Human Rights, UN Women, UNAIDS, UNDP, UNFPA, UNICEF and WHO, also focuses specifically on trans* and intersex persons.340 Citing the report of the Special Rapporteur on Torture as well as a number of scientific studies341, they call for an end to the coerced sterilisation of trans* persons through requirements for gender recognition342.
334 OHCHR, Living Free and Equal: What States Are Doing To Tackle Violence And Discrimination Against Lesbian, Gay, Bisexual, Transgender And Intersex People, p.9 335 Ibid., p.11 336 Ibid., p.13 337 Ibid., p.93-110 338 UNDP and Parliamentarians for Global Action, Advancing the Human Rights and Inclusion of LGBTI People: A Handbook for Parliamentarians (2017) 339 Ibid., p.37&41 340 OHCHR, UN Women, UNAIDS, UNDP, UNFPA, UNICEF and WHO, Eliminating forced, coercive and otherwise involuntary sterilization: An interagency statement (2014) 341 Ibid., p.18-28 342 Ibid., p.7-8
82 Last but not least, a joint statement by no fewer than twelve UN organs mentions the need for gender recognition procedures free from abusive requirements. In this “Joint Statement on Ending Violence And Discrimination Against Lesbian, Gay, Bisexual, Transgender And Intersex People” 343 , these UN entities specifically mention that “Transgender people are frequently denied legal recognition of their preferred gender or face abusive requirements such as forced sterilization, treatment or divorce to obtain it, without which they suffer exclusion and marginalization.”344
iii. Regional Human Rights Systems
It is clear from the previous examples that the United Nations’ human rights entities unanimously oppose abusive requirements for gender recognition. Such opposition can fortunately also be found in regional human rights systems.
In 2017, the Inter-American Court of Human Rights (IACtHR) issued an advisory opinion on Gender Identity, and Equality and Non-Discrimination of Same-Sex Couples. In this advisory opinion, the IACtHR states that gender recognition procedures should completely recognise the self-perceived identity – in other words, that it should be possible to change not only one’s name but also all and any gender markers and gender- identifying data.345 Furthermore, those procedures should be “based solely on the free and informed consent of the applicant without requirements such as medical and/or psychological or other certifications that could be unreasonable or pathologizing.”346 More specifically, the IACtHR states that “procedures for recognizing gender identity are founded on the possibility for self-determination and to freely choose the options and circumstances that give a meaning to a person’s existence, in keeping with their own choices and convictions, as well as with the applicant’s right to dignity and privacy347” and that they “should not require applicants to meet abusive preconditions such as the presentation of medical certificates or evidence of unmarried civil status; nor should applicants be subjected to medical or psychological appraisals related to their self-
343 United Nations, Joint Statement on Ending Violence And Discrimination Against Lesbian, Gay, Bisexual, Transgender And Intersex People (2015) 344 Ibid., p.2 345 Advisory Opinion OC-24/17 on Gender Identity, And Equality And Non-Discrimination Of Same-Sex Couples, 24 November 2017 (IACtHR), §121 346 Ibid., §127 347 Ibid., §127
83 perceived gender identity, or other requirements that undermine the principle according to which gender identity is not to be proven. Consequently, the procedure should be based on the mere expression of the applicant’s intention.348”
The IACtHR stresses the need for a number of safeguards in gender recognition procedures. It criticises States that require “certifications of good conduct” as a protection against identity fraud, stating that harmonisation of personal identity data records is a state obligation and that such a responsibility should not fall on individual citizens.349 It insists on the fact that gender recognition should be administrative or notarial rather than judicial350, as well as confidential351, prompt and, if possible, cost- free352. The purpose of these safeguards is two-fold. Firstly, to avoid any human rights violations brought about by a trans* person being outed against their will and by giving potentially transphobic persons too much power over trans* persons.353 Secondly, to avoid discrimination between trans* and cisgender persons: as the IACtHR states, the recognition of cisgender persons’ identity is not dependent on any requirements or financial costs, and it is unreasonable to place such burdens on trans* persons and not on cisgender persons.354 In the view of the IACtHR, everyone’s gender identity develops autonomously, and treating trans* persons differently simply because their autonomously developed gender identity differs from the one third parties thought they would develop, while cisgender persons’ autonomously developed gender identity does not, is unreasonable and discriminatory.355
The IACtHR strongly condemns medical requirements for gender recognition, basing this on the fact that “gender identity is not a concept that should be systematically associated with physical transformations356” and that “transgender persons construct their identity regardless of medical treatment or surgery357”. Consequently, gender recognition
348 Ibid., §129 349 Ibid., §132 350 Ibid., §157-161 351 Ibid., §134-140 352 Ibid., §141-144 353 Ibid., §144 354 Ibid., §131&144&146 355 Ibid., §131 356 Ibid., §145 357 Ibid., §145
84 procedures “cannot require supporting evidence of total or partial surgery, hormonal therapy, sterilization, or bodily changes in order to grant the request or to prove the gender identity in question, because this could be contrary to the right to personal integrity.”358 Such requirements by definition violate human rights, because they force trans* persons to choose between different fundamental human rights, and render their simultaneous respect impossible. Indeed, “subjecting the recognition of a transgender person’s gender identity to an undesired surgical intervention or sterilization would mean conditioning the full exercise of several rights, including the rights to privacy […] and to choose freely the options and circumstances that give a meaning to his or her existence […], and would lead to the refusal of the full and effective enjoyment of the right to personal integrity.”359
Regarding gender recognition for minors, the IACtHR states that the “foregoing considerations concerning the right to gender identity are also applicable to children who wish to apply for recognition of their self-perceived gender identity in their records and on their documents.360 ” The Court does allow for the fact that “[t]his right should be understood in keeping with the special measures of protection established at the domestic level pursuant to [the rights of the child]361” and stresses that “those measures should necessarily be designed based on the principles of the child’s best interests, progressive autonomy, and right to be heard and that the child’s views be taken into account in any procedure that concerns the child, respect for the right to life, survival and development, and also the principle of non-discrimination.362” Lastly, the Court underlines that “any restriction imposed on the full exercise of that right by provisions aimed at the protection of the child can only be justified based on these principles and should not be disproportionate.363”
The IACtHR relies on such diverse sources to reach these conclusions: the High Commissioner for Human Rights and several other UN human rights bodies, Uruguay’s new law on gender identity, Colombian and Mexican domestic judgments, previous
358 Ibid., §146 359 Ibid., §146 360 Ibid., §154 361 Ibid., §154 362 Ibid., §154 363 Ibid., §154
85 IACtHR judgments (notable Duque and Atala Riffo), and the practice of Latin-American States (particularly Argentina, but also Bolivia, Colombia, Uruguay and Brazil).364
With this advisory opinion, the IACtHR has gone much further than any other human rights court before it. It is true that the IACtHR’s advisory opinions are not binding; however, they do have great legal authority as well as significant legal consequences.365 A human rights court issuing such far-reaching recommendations, calling for complete abolition of any requirements for gender recognition and demanding extensive safeguards to protect trans* persons, as well as extending these recommendations to trans* minors, is ground-breaking. Any litigation about gender recognition before the IACtHR is likely to elicit similar conclusions, and such a binding judgment would not only have significant positive consequences for the Latin-American trans* community, but would also be a worldwide breakthrough.
Abusive requirements have also been extensively discussed by the regional human rights system that is most relevant for this study: the Council of Europe. The Council of Europe has been concerned about trans* rights for some years now. Three different institutions (the Commissioner for Human Rights 366 , the Committee of Ministers367 and the Parliamentary Assembly368) have issued important reports and recommendations aimed towards protecting and improving the rights of trans* persons in the Member States. Abolishing abusive requirements for gender recognition are one area through which they hope to achieve this.
A first important document in this respect is the Commissioner for Human Rights’ report on human rights and gender identity. 369 In this 2009 report, Thomas Hammarberg – former Commissioner for Human Rights – condemns “the combination of cumbersome legal and medical requirements, the borderlines of which are often blurred” that a trans* person must comply with in order to obtain gender recognition.
364 Ibid., §121-161 365 Advisory Opinion OC-1/82 on “Other Treaties” Subject to the Consultative Jurisdiction of the Court, 24 September 1982 (IACtHR), §51 366 Commissioner for Human Rights of the Council of Europe, Human Rights and Gender Identity 367 Committee of Ministers of the Council of Europe, Recommendation on measures to combat discrimination on grounds of sexual orientation or gender identity 368 Parliamentary Assembly of the Council of Europe, Resolution 2048 on discrimination against transgender people in Europe 369 Commissioner for Human Rights of the Council of Europe, Human Rights and Gender Identity
86 The Commissioner starts by outlining the importance of legal gender recognition, stating that the ability to live in the preferred gender and be legally recognised as such is preconditioned by identity papers that are used to conduct everyday life, for example when using a health insurance card, a driving licence or an educational certificate during a job application process.
When discussing conditions for gender recognition, he mentions mandatory diagnosis of gender dysphoria as well as compulsory medical procedures:
“1. that (s)he has followed a medically supervised process of gender reassignment – often restricted to certain state appointed doctors or institutions;
2. that (s)he has been rendered surgically irreversibly infertile (sterilisation), and/or
3. that (s)he has undergone other medical procedures, such as hormonal treatment.”370
Such requirements, according to Mr. Hammarberg, clearly run counter to the respect for the physical integrity of the person. They do not take into account that some trans* persons do not wish to, or are not able to, undergo such procedures, and it is “disproportionate for the State to prescribe treatment in a ‘one size fits all’ manner”.371 The Commissioner points out that certain Member States have already taken steps in that direction, as with the Austrian and German Supreme Court judgments and the
British and Spanish gender identity laws.372
Requirements for gender recognition also have consequences for family life, particularly regarding forced divorce. Not only does it go against the explicit wishes of the couple who wish to remain married; it may also have a negative impact on the children in the marriage, and the trans* parent may even lose custody of the children.373 Regarding such family-related abusive requirements, the Commissioner once more
370 Ibid., p.8 371 Ibid., p.8 372 Ibid. 373 Ibid., p.9
87 refers to the German and Austrian judgements, as well as to a study published by TGEU and ILGA-Europe.374
For these reasons, the Commissioner recommends that States:
“3. Develop expeditious and transparent procedures for changing the name and sex of a transgender person on birth certificates, identity cards, passports, educational certificates and other similar documents;
4. Abolish sterilisation and other compulsory medical treatment as a necessary legal requirement to recognise a person’s gender identity in laws regulating the process for name and sex change;
5. Make gender reassignment procedures, such as hormone treatment, surgery and psychological support, accessible for transgender persons, and ensure that they are reimbursed by public health insurance schemes;
6. Remove any restrictions on the right of transgender persons to remain in an existing marriage following a recognised change of gender.”375
The term "abusive requirements" appears for the first time shortly after the Commissioner’s report, in a 2010 recommendation by the Committee of Ministers.376 Regarding conditions for gender recognition, this Recommendation states: "Prior requirements, including changes of a physical nature, for legal recognition of a gender reassignment, should be regularly reviewed in order to remove abusive requirements."377 This recommendation is stressed once more when the Committee states that “no person should be subjected to gender reassignment procedures without his or her consent.378” Not only should abusive requirements be removed, but gender recognition procedures should also be “quick, transparent and accessible”.379
374 Ibid. p.9-10 375 Ibid., p.18 376 Committee of Ministers of the Council of Europe, Recommendation on measures to combat discrimination on grounds of sexual orientation or gender identity 377 Ibid., §20 378 Ibid., §35 379 Ibid., §21
88 In 2015, the Parliamentary Assembly of the Council of Europe adopted “Resolution 2048 on Discrimination against transgender people in Europe”.380 This resolution contains recommendations on the requirements for gender recognition in the Member States of the Council of Europe. Following in the footsteps of Mr. Hammarberg's report, the Parliamentary Assembly expresses concern about the absence of gender recognition procedures in many Member States. The report also contains recommendations on the requirements for gender recognition: the Parliamentary Assembly lists conditions for gender recognition that violate trans* persons’ right to respect for private life and to physical integrity: “sterilisation, divorce, a diagnosis of mental illness, surgical interventions and other medical treatments” as well as “a period of “life experience” in the gender of choice”. 381 The Parliamentary Assembly’s specific recommendations to the Member States regarding requirements for gender recognition are as follows:
“6.2. as concerns legal gender recognition:
6.2.1. develop quick, transparent and accessible procedures, based on self- determination, for changing the name and registered sex of transgender people on birth certificates, identity cards, passports, educational certificates and other similar documents; make these procedures available for all people who seek to use them, irrespective of age, medical status, financial situation or police record;
6.2.2. abolish sterilisation and other compulsory medical treatment, as well as a mental health diagnosis, as a necessary legal requirement to recognise a person's gender identity in laws regulating the procedure for changing a name and registered gender; 6.2.3. remove any restrictions on the right of transgender people to remain in an existing marriage upon recognition of their gender; ensure that spouses or children do not lose certain rights;
6.2.4. consider including a third gender option in identity documents for those who seek it;
380 Parliamentary Assembly of the Council of Europe, Resolution 2048 on discrimination against transgender people in Europe 381 Ibid., §3
89 6.2.5. ensure that the best interests of the child are a primary consideration in all decisions concerning children.”382
Resolution 2048 very extensively addresses the rights of trans* persons, but the Parliamentary Assembly had in fact already considered requirements for gender recognition in another resolution. Resolution 1728 on discrimination on the basis of sexual orientation and gender identity criticised “obstacles in obtaining gender reassignment treatment and legal recognition of the new gender383“” and recommended that States ensure trans* persons’ access to “official documents that reflect an individual’s preferred gender identity, without any prior obligation to undergo sterilisation or other medical procedures such as sex reassignment surgery and hormonal therapy.384”
In Resolution 2191 on promoting the human rights of and eliminating discrimination against intersex people, the Parliamentary Assembly, referring to resolution 2048, once more calls for elimination of abusive requirements for gender recognition, insists upon the need to protect intersex children against stigma and non- consensual treatment, recommends the implementation of a third gender marker option, and even urges the Member States to consider abolishing mandatory gender registration altogether:
“7.3. with regard to civil status and legal gender recognition:
7.3.1. ensure that laws and practices governing the registration of births, in particular as regards the recording of a newborn’s sex, duly respect the right to private life by allowing sufficient flexibility to deal with the situation of intersex children without forcing parents or medical professionals to reveal a child’s intersex status unnecessarily;
7.3.2. simplify legal gender recognition procedures in line with the recommendations adopted by the Assembly in Resolution 2048 (2015) and ensure in particular that these procedures are quick, transparent and accessible to all and based on self-determination;
382 Ibid., §6 383 Parliamentary Assembly of the Council of Europe, Resolution 1728 on discrimination on the basis of sexual orientation and gender identity, §4 384 Ibid., §16(11)
90 7.3.3. ensure, wherever gender classifications are in use by public authorities, that a range of options are available for all people, including those intersex people who do not identify as either male or female;
7.3.4. consider making the registration of sex on birth certificates and other identity documents optional for everyone;
7.3.5. ensure that, in accordance with the right to respect for private life, intersex people are not prevented from entering into a civil partnership or marriage or from remaining in such a partnership or marriage as a result of the legal recognition of their gender.”385
This resolution showcases how gender recognition and its requirements harm not only trans* persons, but also intersex persons.
Since all the States that fall within the scope of this study are Member States of the European Union, it is important to consider soft law at the EU level. In 2015, the EU Agency for Fundamental Rights (hereafter: FRA) has published a comparative legal analysis of the protection against discrimination on grounds of sexual orientation, gender identity and sex characteristics in the EU. In this publication, the FRA applauds increased possibilities for gender recognition for minors, the heightened flexibility regarding trans* persons’ right to marry and to remain married, and the abolition of the sterilisation requirement in certain jurisdictions.386
In 2012, the European Commission published a study on discrimination on the grounds of sex, gender identity and gender expression. In this study, the Commission found that “the list of requirements attached to such recognition tends to be long, invasive and pathological. Such laws may require that the trans persons: (i) have the intention to live permanently in the opposite gender; (ii) meet the real-life test requirements; (iii) obtain multidisciplinary opinions indicating that they suffer from gender identity disorder; (iv) undergo irreversible genital surgery; (v) be sterilised; and/or (vi) be single or obtain a divorce from their spouse.”387 Citing the Commissioner’s report and a WPATH statement
385 Parliamentary Assembly of the Council of Europe, Resolution 2191 on promoting the rights of and eliminating discrimination against intersex people (2017), §7.3 386 European Union Agency for Fundamental Rights, Protection against discrimination on grounds of sexual orientation, gender identity and sex characteristics in the EU: Comparative legal analysis (Update 2015) (2015), p.19-23 387 European Commission, Trans and intersex persons: discrimination on the grounds of sex, gender identity and gender expression (2012), p.19
91 on removing surgical and sterilising requirements for gender recognition, the Commission states that “[t]hose trans people who do not intend to or cannot undergo gender reassignment, and thereby meet all the requirements outlined in national law, often find themselves unable to change their legal gender marker even if they live in the gender they identify with full time.”388
The Commission also addresses the source of these transphobic requirements, i.e. the gender binary’s entrenchment in society and the way it is prioritised over persons’ wellbeing: “The sterilisation and the divorce requirement represent society’s primary interest to enforce the binary gender system. The trans person’s wellbeing comes second. Sterilisation is required to ensure that the biological role of the sexes is not challenged while divorce is required so as to prevent an existing different-sex marriage becoming one of the same-sex. A similar interest applies in the obligation to undergo ‘full’ gender reassignment treatment.”389
Most recently, the European Parliament has adopted a resolution on the rights of intersex persons, in which it refers to almost all the documents mentioned above, notably the Special Rapporteur on Torture’s report, the Yogyakarta Principles, Resolution 2191, and the European Commission’s study.390 In this resolution, the Parliament “[s]tresses the importance of flexible birth registration procedures; welcomes the laws adopted in some Member States that allow legal gender recognition on the basis of selfdetermination; encourages other Member States to adopt similar legislation, including flexible procedures to change gender markers, as long as they continue to be registered, as well as names on birth certificates and identity documents (including the possibility of gender-neutral names).” 391 Following this resolution, the European Commission has announced its intention to map gender recognition across the EU States.392 This effort could lead the EU to make recommendations to States about gender recognition and its requirements.
388 Ibid. 389 Ibid. 390 European Parliament, Resolution on the rights of intersex people (P8_TA-PROV(2019)0128, 2019), p.1-2 391 Ibid., §9 392 European Commission, Trans and intersex persons: discrimination on the grounds of sex, gender identity and gender expression, p.19
92 As is clear from the above, in the last few years, international soft law has seen a marked shift towards advocating for the elimination of all abusive requirements for gender recognition. The United Nations, the Council of Europe, the European Union – all are in agreement that such requirements severely violate the fundamental rights of trans* persons. All these publications have another noticeable thing in common, however: they refer to the increasing depathologisation of trans* identities in order to solidify their arguments against abusive requirements for gender recognition. It therefore seems essential to examine this shift towards depathologisation and its influence on legal discourse.
93 b. International trend towards depathologisation
Medicalising trans* identities can have the positive effect of making medical transition more accessible393; however, as seen from the criticism outlined above, it also has a strong stigmatising and delegitimising effect394. Therefore, many trans* activists have been calling for the depathologisation of trans* identities, stressing that any mental distress trans* persons experience is caused by society’s reaction to their identities rather than by their identities in themselves.395
Thomas Hammarberg addressed this issue in his report on human rights and gender identity, stating that “[s]uch classifications may become an obstacle to the full enjoyment of human rights by transgender people, especially when they are applied in a way to restrict the legal capacity or choice for medical treatment.396” He does address the difference in opinion between trans* persons in this regard: “Many transgender people feel threatened by a possible change in the classification systems, since they fear it could result in further restrictions in accessing transgender health care. They consider that because health care systems require a diagnosis to ‘justify’ medical or psychological treatment, it is essential to retain a diagnosis to ensure access to care. Others, however, argue that being diagnosed as having a mental disorder stigmatises individuals in society and makes them objects of medicine, rather than subjects who are responsible for expressing their own health needs. 397 ” Hammarberg concludes that “[a]lternative classifications should be explored in close consultation with transgender persons and their organisations398” and that “[f]rom a human rights and health care perspective no mental disorder needs to be diagnosed in order to give access to treatment for a condition in need of medical care.399” These conclusions are particularly interesting, as they acknowledge trans* persons as the experts on their own situation, and confirm trans* persons’ right to medically transition without considering it a treatment for a mental illness.
393 Theilen, ‘Depathologisation of Transgenderism and International Human Rights Law’, , p.329; Francesca Romana Ammaturo, ‘The Gendered and Sexed Citizen: Different Bodies, Different Rights?’ in European Sexual Citizenship: Human RIghts, Bodies and Identities (Palgrave Macmillan 2017), p.77 394 Theilen, ‘Depathologisation of Transgenderism and International Human Rights Law’, , p.331 395 Ibid., p.331 396 Commissioner for Human Rights of the Council of Europe, Human Rights and Gender Identity, p10 397 Ibid. 398 Ibid. 399 Ibid.
94 In its resolution of 28 September 2011 on human rights, sexual orientation and gender identity at the United Nations, the European Parliament reaches the same conclusions, “[r]oundly condemn[ing] the fact that homosexuality, bisexuality and transsexuality are still regarded as mental illnesses by some countries, including within the EU, and call[ing] on states to combat this; call[ing] in particular for the depsychiatrisation of the transsexual, transgender, journey, for free choice of care providers, for changing identity to be simplified, and for costs to be met by social security schemes.”400 Similarly, in its resolution of 4 February 2014 on the EU Roadmap against homophobia and discrimination on grounds of sexual orientation and gender identity, the European Parliament stated that “[t]he Commission should continue working within the World Health Organisation to withdraw gender identity disorders from the list of mental and behavioural disorders and to ensure a non-pathologising reclassification in the negotiations on the 11th version of the International Classification of Diseases (ICD- 11).”401
In its resolution of 8 September 2015 on the situation of fundamental rights in the European Union, the European Parliament “[d]eplores the fact that transgender people are still considered mentally ill in the majority of Member States and calls on them to review national mental health catalogues, while ensuring that medically necessary treatment remains available for all trans people”402 and “[w]elcomes the initiative shown by the Commission in pushing for depathologisation of transgender identities in the review of the World Health Organisation's International Classification of Diseases (ICD); calls on the Commission to intensify efforts to prevent gender variance in childhood from becoming a new ICD diagnosis.”403 The latter of these recommendations has regrettably not come to fruition; as we will see below, gender incongruence in childhood is in fact included in the ICD’s eleventh revision.
This view was confirmed by the European Parliament’s resolution on promoting gender equality in mental health and clinical research, when the Parliament condemned
400 European Parliament, Resolution on sexual orientation and gender identity at the UN Human Rights Council, §13 401 European Parliament, Resolution on the Roadmap against homophobia and discrimination on grounds of sexual orientation and gender identity (P7_TA(2014)0062, 2014), E(ii) 402 European Parliament, Resolution on the situation of fundamental rights in the European Union (2013-2014) (P8_TA(2015)0286, 2015), §90 403 Ibid., §91
95 that “transgender identities are not pathological, but are deplorably still considered mental health disorders and most Member States request such diagnoses for access to legal gender recognition and transgender-related healthcare, even though research has shown that the “gender identity disorder” diagnosis is a source of significant distress for transgender people.”404
The European Parliament reiterated the need for depathologisation very recently, in its resolution of 14 February 2019 on the rights of intersex people, stating that it “[t]akes the view that pathologisation of intersex variations jeopardises the full enjoyment by intersex people of the right to the highest attainable standard of health as enshrined in the UN Convention on the Rights of the Child; calls on the Member States to ensure the depathologisation of intersex people; […] [w]elcomes the depathologisation, however partial, of trans identities in the eleventh revision of the ICD (ICD-11); notes, however, that the category of ‘gender incongruence’ in childhood pathologises non-gender- normative behaviours in childhood; calls, therefore, on the Member States to pursue the removal of this category from the ICD-11, and to bring future ICD revision into line with their national health systems.”405
In 2010, WPATH called for depsychopathologisation of trans* identities, stating that “[t]he expression of gender characteristics, including identities, that are not stereotypically associated with one’s assigned sex at birth is a common and culturally- diverse human phenomenon which should not be judged as inherently pathological or negative. The psychopathologisation of gender characteristics and identities reinforces or can prompt stigma, making prejudice and discrimination more likely, rendering transgender and transsexual people more vulnerable to social and legal marginalisation and exclusion, and increasing risks to mental and physical well-being.” Consequently, WPATH urged “governmental and medical professional organizations to review their policies and practices to eliminate stigma toward gender-variant people.”406 Some time later, in 2013, the American Psychiatric Association removed “gender identity disorder” from the fifth edition of the Diagnostic Statistic Manual, replacing it with “gender
404 European Parliament, Resolution on promoting gender equality in mental health and clinical research (P8_TA(2017)0028, 2017), O 405 European Parliament, Resolution on the rights of intersex people, §7 406 WPATH, Statement urging the de-psychopathologisation of gender variance worldwide (2010)
96 dysphoria”.407 The WHO has also no longer considers “gender incongruence” an illness since the very recent eleventh revision of the ICD.408
Many UN organs have also called for the depathologisation of trans* identities. In 2011, the Committee for Economic, Social and Cultural Rights criticised Germany’s pathologising policies. Referring to Article 12 ICCPR (right to health) and Article 2(2) ICCPR (right to non-discrimination), it “note[d] with concern that transsexual and inter- sexed persons are often considered to be persons with mental illness and that the State party's policies, legislative or otherwise, have led to discrimination against these persons as well as to violations of their sexual and reproductive health rights.”409
The Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, for example, has criticised the fact that “mental health diagnoses have been misused to pathologize identities and other diversities” and that “the pathologization of lesbian, gay, bisexual, transgender and intersex persons reduces their identities to diseases, which compounds stigma and discrimination.”410
On 17 May 2016, on International Day Against Homophobia, Transphobia and Biphobia, several UN entities and other human rights bodies issued a joint statement calling for the depathologisation of LGBTQI+ identities. In this statement, the CRC, several UN Independent Experts, the IACHR, the ACHPR, and the Council of Europe’s Commissioner for Human Rights insist on the medical field’s influence on the discrimination of LGBTQI+ persons and stress that pathologising categorisations lead to coerced treatments, abusive requirements for gender recognition and other human rights abuses, “leading to severe and life-long physical and mental pain and suffering.”411
In his 2017 report to the HRC, the first Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity identifies
407 Theilen, ‘Depathologisation of Transgenderism and International Human Rights Law’, , p.329 408 WHO, ‘ICD-11: Classifying disease to map the way we live and die’ 409 CESCR, Concluding Observations on the fifth report of Germany ( E/C12/DEU/CO/5, 2011), §26. 410 Danius Pûras, Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health to the UNHRC (A/HRC/35/21, 2017), §48 411 OHCHR, ‘"Pathologization – Being lesbian, gay, bisexual and/or trans is not an illness"’ (2016)
97 destigmatisation and depathologisation as one of the underpinnings of his mandate. He comprehensively explains the need for depathologisation:
“Stigma based on sexual orientation and gender identity, and, concomitantly, violence and discrimination, may arise in a variety of situations, including in the medical and related sectors, and this is linked with the issue of pathologization. […] In regard to transgender and intersex persons, the situation is difficult internationally, as they still fall under the International Classification of Diseases, which is now in the process of being adjusted to reduce stigma. There is a further consideration as regards how to ensure sustained access to medical care and services, such as access to hormones and related treatment.”412 Regarding this need for access to medical treatment, the Independent Expert states that “[t]he preferred approach should be to ensure access to comprehensive health care for all, without resorting to labels that give rise to stigma. The invitation to destigmatize and depathologize opens the door to more cooperation with the medical, scientific and ethics sectors, to promote shared understanding that sexual orientation and gender identity are part of the natural state of being human, and correlatively, to ensure respect for all persons without distinction.”413
Accordingly, his successor as Independent Expert extensively covers depathologisation in his 2018 report to the General Assembly. Since about 70% of psychiatrists worldwide use the WHO’s International Classification of Diseases in their daily practice, he focuses mainly on the ICD’s evolution. The most recent step in this evolution is the eleventh revision of the ICD, as implemented by the WHO in May 2019.414
In this eleventh revision, “the trans categories currently included in the tenth revision have been removed from the chapter on mental and behavioural disorders, and a new category related to trans identities has been created in a chapter on conditions related to sexual health. The category of “transsexualism” was removed and replaced with a new category called “gender incongruence of adolescence and adulthood”. The category is not defined in binary terms and does not impose gender stereotypes; it applies only after
412 Muntarbhorn, Report of the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity to the UNHRC, §58 413 Ibid., §58 414 WHO, ‘ICD-11: Classifying disease to map the way we live and die’
98 puberty begins and is characterized by a marked and persistent incongruence between an individual’s experienced gender and the assigned sex, which often leads to a desire to “transition” in order to live and be accepted as a person of the experienced gender, through hormonal treatment, surgery or other health-care services to make the individual’s body align, as much as desired and to the extent possible, with the experienced gender.”415 Consequently, “[t]he new category in the eleventh revision is intended to be used to facilitate access to gender-affirming treatment. In other words, there is no reason to assign a diagnosis to trans people who do not seek gender-affirming medical treatment or some sort of bodily change.”416
Despite this progress, “[t]he diagnosis of “gender identity disorder of childhood” has been replaced with “gender incongruence of childhood” in the eleventh revision, a diagnosis that will be used only with pre-pubertal children.” 417 According to the Independent Expert, “[t]his measure has been criticized by several organizations and professionals whose position is that it creates a diagnosis for a situation not requiring medical treatment, that other codes exist to capture any related needs of children who may face discrimination based on their gender identity or expression, and that the existence of this diagnosis perpetuates a pathologizing approach to gender diversity. Proponents of retaining the diagnosis consider that it will satisfy specific clinical needs and provide opportunities for education and informed consent, developing standards and pathways of care to guide clinicians and family members, as well as research efforts, and that it alleviates concerns about restricting access to reimbursed health care.” 418 The Independent Expert acknowledges the concerns of the proponents of such a diagnosis, but “remains concerned by the fact that such classifications have been shown to be obstacles to the full enjoyment of human rights by trans people, especially when they are applied in a way to restrict legal capacities or choice.”419 He therefore calls for an “analysis of the available evidence in the light of the rights of the child to gender identity
415 Madrigal-Borloz, Report by the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity to the General Assembly, §12 416 Ibid., §13 417 Ibid., §15 418 Ibid., §15 419 Ibid., §16
99 and emerging autonomy and the vigorous framework for protection existing in the nearly universally ratified Convention on the Rights of the Child.”420
Consequently, regarding depathologisation of trans* identities, the Independent Expert urges States to:
“(a) Move swiftly to adopt and implement the elements in the eleventh revision of the International Classification of Diseases that relate to the removal of the trans categories from the chapter on mental and behavioural disorders, including the adoption of all measures conducive to eradicating the conception of gender diversity as a pathology from all aspects of everyday life;
(b) Facilitate the analysis of available evidence surrounding the diagnosis of “gender incongruence of childhood” in the eleventh revision of the International Classification of Diseases in the light of the rights of the child to gender identity and emerging autonomy and the vigorous framework for protection existing in the nearly universally ratified Convention on the Rights of the Child, a process in which all relevant stakeholders, including the populations affected, are encouraged to participate and of which the mandate holder will remain seized, given its importance and relevance to the objectives of Human Rights Council resolution 32/2.”421
In its 2017 advisory opinion on Gender Identity, and Equality and Non- Discrimination of Same-Sex Couples, the IACtHR followed this trend towards depathologisation, stating that “in the case of the medical, psychological or psychiatric certificates that are usually required in this type of procedure, the Court understand that, in addition to being of an invasive nature and calling into question the applicant’s self- assigned identity, they are based on the assumption that having an identity that differs from the sex assigned at birth is a pathology. In this sense, these types of requirements or medical certificates contribute to perpetuating the prejudices associated with the binary construct of male and female genders.”422
These repeated calls for depathologisation have not been followed up by a majority of States. Nonetheless, we are starting to see change, not only in the States
420 Ibid., §15 421 Ibid., §77 422 Advisory Opinion OC-24/17 on Gender Identity, And Equality And Non-Discrimination Of Same-Sex Couples, §130
100 examined in this study, but also in a few others. France, for example, was the first State to remove transsexuality from its list of mental disorders, in 2009.423
This trend towards depathologisation is of high relevance to the subject of this study. Indeed, mandatory medical requirements for gender recognition are rooted in the pathologisation of trans* identities. As long as being trans* is considered an illness, medical requirements seem reasonable, since it seems to be in the trans* person’s best interest to treat them. If trans* identities are no longer considered illnesses, medical requirements no longer serve any purpose.424 Depathologisation of trans* identities is consequently an essential factor in the abolition of medical abusive requirements.
423 Theilen, ‘Depathologisation of Transgenderism and International Human Rights Law’, , p.329
424 Ibid., p.331
101 c. Jurisprudence of the European Court of Human Rights
Given the impact of the ECtHR’s judgments on the legal systems of the Council of Europe’s Member States, analysing its judgments on trans* rights and gender recognition is very relevant to the study of the evolution of abusive requirements for gender recognition. In order to follow this evolution as logically as possible, I will subdivide these cases according to the abusive requirements at stake. Following the classification found in international soft law – particularly the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity425 and the Parliamentary Assembly of the Council of Europe426 – I will discuss the following abusive requirements in order: i. sterilisation, ii. procedures related to medical transition, iii. diagnosis of gender dysphoria, iv. impact on civil status, v. impact on parental rights, vi. real life experience, and vii. age restrictions.
i. Sterilisation
The first ECtHR judgment to deal with sterilisation requirements was Y.Y. v. Turkey, in 2015. 427 In this case, however, sterilisation was not a requirement for gender recognition: it was a requirement to access sex reassignment surgery. Since sex reassignment surgery was mandatory to obtain gender recognition, sterilisation in this case could be considered an indirect requirement for gender recognition, but the Court focuses only on the access to surgery in its judgment.
Y.Y. was a trans* man who wanted to access sex reassignment surgery but was refused this on the grounds that he was still able to procreate. He complained that this situation violated his right to private life under Article 8 ECHR. In its analysis, the Court reiterates its findings that “the right of transgender persons to personal development and to physical and moral security is guaranteed428”, but also stresses that Y.Y. is the first trans* respondent not to have undergone sex reassignment surgery at the time of his complaint and that this case therefore concerns “the issue of the prior conditions that
425 Muntarbhorn, Report of the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity to the UNHRC 426 Parliamentary Assembly of the Council of Europe, Resolution 2048 on discrimination against transgender people in Europe 427 Y.Y. v. Turkey App. no. 14793/08, 10 March 2015 (ECtHR) 428 Ibid., §58
102 may be imposed on transgender persons in advance of the process of gender change”429. Consequently, the Court is of the opinion that “[t]he criteria and principles developed in the case-law cited above were thus established in a very different context and cannot therefore be transposed unaltered to the present case. However, they may serve as a guide to the Court in assessing the circumstances of the case.”430
The Court considers that, since the refusal had an impact on Y.Y.’s right to gender identity, there is a clear interference with Article 8. The question then becomes whether this interference is justified. The Government submitted that regulations regarding access to sex reassignment surgery served a dual purpose: firstly, to ensure that such surgeries do not become commonplace and are not misused; secondly, to limit the health risks and possible regrets related to the irreversibility of such procedures. The Court finds that only the latter is a legitimate aim in a democratic society, and goes on to examine the proportionality of the sterilisation requirement. The Court reiterates its findings in Goodwin, stating that it “attaches less importance to the lack of evidence of a common European approach to the resolution of the legal and practical problems posed than to the existence of clear and uncontested evidence of a continuing international trend not only of increased social acceptance of transgender persons but of legal recognition of the new gender identity of post-operative transgender persons.”431 Consequently, the State’s margin of appreciation is narrowed. Citing CMRec(2010)5432 and Resolution 1728433, as well as the practice of certain Member States434, the Court finds that there is a trend towards the abolition of the sterilisation requirement. It therefore concludes that sterilisation disproportionately interferes with Y.Y.’s physical integrity435, and that using such a requirement to deny him sex reassignment surgery for several years constitutes a violation of his right to private life436.
Two concurring opinions to this judgment provide interesting material for the present study. Judges Keller and Spano start by – rightfully – pointing out that citing the
429 Ibid., §61 430 Ibid., §62 431 Ibid., §108-109 432 Ibid., §110 433 Ibid., §110 434 Ibid., §111 435 Ibid., §119 436 Ibid., §120-121
103 possible health risks and irreversibility of sex reassignment surgery as a reason to require sterilisation as a prior condition is quite illogical, since sterilisation itself is irreversible and may lead to health complications.437 This leads them to examine sterilisation as a requirement in itself, regardless of the aims it is invoked to protect. Citing V.C. v. Slovakia, CMRec(2010)5, resolution 1728, Hammarberg’s report, the UN Human Rights Committee, the UN Special Rapporteur on Torture and the WHO, as well as Austrian, German and Swedish domestic judgments, the concurring judges point to “the evidence of an international trend against requiring sterilisation as a prior condition for entering a change of gender in the official registers and for gender reassignment surgery.”438 This leads them to conclude that sterilisation as a prior requirement for gender reassignment is de facto forced sterilisation, which should have been addressed in the Court’s proportionality assessment. 439 Given the high impact of such a requirement on the right to gender identity as a fundamental aspect of Article 8 ECHR, the concurring judges conclude that “that the margin of appreciation in a case such as this should be reduced to a minimum440”.
Judge Lemmens, joined in his concurring opinion by Judge Küris, stresses that Y.Y. v. Turkey “does not address the issue of the Convention compatibility of requiring a permanent inability to procreate as a prior condition for the legal recognition of a change of gender.”441 He approves of the majority’s decision not to address this issue, because “[t]he reasons relied on by the Government to justify making gender reassignment contingent on a permanent inability to procreate […] are not necessarily the same reasons that a State might rely on to justify imposing the same requirement as a condition for legal recognition of a change of gender.”442 He states that, regarding the issue of gender recognition, the trend cited by his colleagues must be taken into account, but so must States’ reasons to keep such a requirement in their national legislation. He therefore
437 Ibid., §7 438 Ibid., §14-19 439 Ibid., §26 440 Ibid., §27 441 Ibid., dissenting opinion §4 442 Ibid., dissenting opinion §4
104 concludes that such information must be analysed in detail and that “[t]he Court will have to await another opportunity to examine this issue in greater depth.443”
This opportunity arose two years later, with the case of A.P., Garçon et Nicot v. France. In this case, the applicants – three trans* women – complained that their gender recognition was dependent on sterilisation, as well as on a mandatory medical assessment and a mandatory diagnosis of gender dysphoria. Given the topic of this section, I will only deal with the sterilisation requirement.
Before going into the analysis proper, the Court looks into a plethora of sources regarding requirements for gender recognition. First, it refers to Transgender Europe’s Trans Rights Europe Map 2016, finding that twenty-two Member States required sterilisation as a condition for gender recognition, while seventeen did not.444 It also refers to other Council of Europe documents: Hammarberg’s report 445 , CMRec(2010)5 446 , and Resolutions 1728, 1945 and 2048 of the Parliamentary Assembly 447 . The Court also considers UN documents, specifically the High Commissioner for Human Rights’s report on discriminatory laws and practices based on sexual orientation and gender identity448, the report by the Special Rapporteur on Torture449 , and the UN interagency statement on eliminating forced, coerced and involuntary sterilisation450.
The Court stresses that this is the first time it has to rule the legal gender recognition of persons who have not undergone sex reassignment surgery, since previous cases either concerned post-operative transsexual persons or trans* persons’ access to sex reassignment surgery.451 However, it holds that “[t]he right to respect for private life under Article 8 of the Convention applies fully to gender identity, as a component of personal identity. This holds true for all individuals.”452 The Court therefore
443 Ibid., dissenting opinion §4 444 A.P., Garçon and Nicot v. France App. no. 79885/12, 52471/13, 52596/13, 6 April 2017 (ECtHR), §70-71 445 Ibid., §73 446 Ibid., §74 447 Ibid., §75-77 448 Ibid., §78 449 Ibid., §79 450 Ibid., §80-81 451 Ibid., §94 452 Ibid., §95
105 finds that the present case falls within the scope of Article 8, confirming that the protection of gender identity under Article 8 extends to transgender persons.453
The question is then whether, by imposing a requirement of “irreversible change in appearance454” for gender recognition, France complied with its positive obligation to secure the applicants’ respect for private life. The applicants argue that an “irreversible change in appearance” amounts to sterilisation 455 , and the Court follows this reasoning456.
In its assessment of this question, the Court takes into account the third party interventions of Amnesty International, ILGA-Europe and TGEU, but also of ADF (Alliance Defending Freedom) International.457
Regarding the margin of appreciation, the Court starts by stating that there is no European consensus on the matter and that the public interests are at stake, notably the reliability and consistency of civil records and the sensitive moral and ethical character of trans*-related issues. This would normally lead to a wide margin of appreciation.458 Nonetheless, the Court is of the opinion that, since sterilisation is directly related to physical integrity, and gender identity is an essential aspect of the right to private life, “an essential aspect of individuals’ intimate identity, not to say of their existence, is central to the present applications”.459 Therefore, the State’s margin of appreciation is narrow.460
When assessing the balance struck between private and public interests, the Court reiterates that in “the sphere of medical assistance, even where the refusal to accept a particular treatment might lead to a fatal outcome, the imposition of medical treatment without the consent of a mentally competent adult patient would interfere with his or her right to physical integrity.”461 In the case of sterilisation as a requirement for gender recognition, the Court judges that “[m]edical treatment cannot be considered to be the
453 Ibid., §96 454 Ibid., §102 455 Ibid., §103 456 Ibid., §120 457 Ibid., §109-115 458 Ibid., §121-122 459 Ibid., §123 460 Ibid., §121-123 461 Ibid., §129
106 subject of genuine consent when the fact of not submitting to it deprives the person concerned of the full exercise of his or her right to gender identity and personal development462 ”, and that “[m]aking the recognition of transgender persons’ gender identity conditional on sterilisation surgery or treatment – or surgery or treatment very likely to result in sterilisation – which they do not wish to undergo therefore amounts to making the full exercise of their right to respect for their private life under Article 8 of the Convention conditional on their relinquishing full exercise of their right to respect for their physical integrity as protected by that provision and also by Article 3 of the Convention463”. Making such a fundamental right as gender recognition dependent upon sterilisation jeopardises the person’s informed consent by forcing them to choose between two fundamental rights: their private life and their physical integrity.464 Trans* persons then face an impossible dilemma.465 Consequently, the Court rules that such an invasive requirement could not be justified by the above-mentioned public interests466. This amounts to a violation of Article 8 ECHR467 – but not of Article 3 ECHR, because the application regarding Article 3 was dismissed as inadmissible due to failure to exhaust domestic remedies468.
In May 2018, the European Committee for Social Rights followed in the ECtHR’s footsteps, finding that the Czech sterilisation requirement for gender recognition violated the right to health. 469 This case was submitted to the Committee by Transgender Europe and ILGA-Europe, and the Committee cites an impressive array of sources to inform its decision: the organs of the Council of Europe (CMRec(2010)5, Resolution 1728, Resolution 2048, and Hammarberg’s “Human Rights and Gender Identity”), the ECtHR (A.P., Garçon et Nicot v. France, Van Kück v. Germany, Y.Y. v. Turkey, and Christine Goodwin v. UK), the European Commission against Racism and Intolerance, the UN (CESCR General Comments nr. 14 and 22, CEDAW General Comment nr. 24,) the
462 Ibid., §130 463 Ibid., §131 464 Ibid., §131 465 Ibid., §131 466 Ibid., §132 467 Ibid., §135 468 Ibid., §89 469 Transgender Europe and ILGA-Europe v. the Czech Republic, App. no. 117/2015, 15 May 2018 (European Committee of Social Rights)
107 Special Rapporteur on Health, the Special Rapporteur on Torture, the Independent Expert, the High Commissioner for Human Rights, the interagency statement on the elimination of forced, coercive and otherwise involuntary sterilization), and the IACtHR.470 The Committee, like the ECtHR, points out the impossible dilemma faced by trans* persons when mandatory sterilisation requirements forces them to choose between gender recognition and their physical integrity.471 It goes on to state that “[a]ny kind of medical treatment which is not necessary can be considered as contrary to Article 11, if obtaining access to another right is contingent upon undergoing it472” and that “the condition attached for the recognition of transgender person’s gender identity vitiates free consent, and therefore such a requirement violates physical integrity, operates contrary to the notion of human dignity473“. Consequently, it finds that mandatory sterilisation is a violation of the right to health.474
As we will see, sterilisation is the only abusive requirement for gender recognition to have been outright condemned by the ECtHR to date. Regarding other requirements, including other medical requirements, the Court is much more circumspect.
ii. Procedures related to medical transition
Another common abusive requirement for gender recognition is proving that one has undergone a number of procedures associated with medical transition. Such procedures may be hormone therapy, chest surgery, or genital surgery; often, however, it is genital surgery – or “sex reassignment surgery” – that is required for gender recognition. Some States also require a medical assessment in order to establish whether the applicant for gender recognition has indeed submitted to such surgeries. We know, however, that not all trans* persons wish to medically transition. Therefore, such requirements – like sterilisation requirements – force trans* persons to choose between their right to private life and their right to physical integrity.
470 Ibid., §22-43 471 Ibid., §77 472 Ibid., §80 473 Ibid., §86 474 Ibid., §86&89
108 In 2008, the Court had the opportunity to rule directly on the need for sex reassignment surgery as a requirement for gender recognition. In Nuñez v. France, the applicant complained that she had been waiting for sex reassignment surgery for so long that she had spent years being forcibly outed as trans* every time she had to show her ID. Indeed, France required a trans* person to have completed their medical transition, including sex reassignment surgery. The Court considered that this requirement was not unreasonable, and concluded that the application was manifestly unfounded.475 It is therefore clear that in 2008, the Court thought that mandatory sex reassignment surgery fell within the State’s margin of appreciation regarding the conditions for gender recognition.
A later judgment indirectly concerned sex reassignment surgery as a condition for gender recognition. In L. v. Lithuania476, a trans* man was denied access to sex reassignment surgery due to the lack of legal provisions regarding medical transition in Lithuanian law. This, in turn, also had the effect of denying the applicant legal gender recognition. Indeed, Lithuanian law provided for legal gender recognition for post- operative transsexuals, but since medical transition was not properly regulated, there was a legislative gap for gender recognition. The Court ruled that “this legislative gap left the applicant in a situation of distressing uncertainty vis-à-vis his private life and the recognition of his true identity477” and therefore violated Article 8 ECHR. However, since this case concerned the regulation of sex reassignment surgery for a person who desired access to it, the Court did not consider whether Lithuania was justified in requiring the completion of a medical transition before providing the applicant with legal gender recognition.
However, in the two years since A.P., Garçon et Nicot, the Court has twice ruled on sex reassignment surgery as a requirement for an aspect of gender recognition. Unfortunately, the Court persists in refusing to rule exhaustively on the ways such a requirement affects the right of transgender persons who do not want to fully medically transition.
S.V. v. Italy was a very similar case to Nuñez v. France. It concerned a trans* woman who had fully socially transitioned for years, as well as started HRT and got a
475 Nuñez v. France App. no. 18367/06, 26 May 2008 (ECtHR) 476 L. v. Lithuania 477 Ibid., §59
109 mammoplasty. While she was awaiting genital surgery, she requested a domestic court to change her legal name to her chosen, female name. The domestic court refused this, stating that legal recognition of a name was only possible after a change of the legal attribution of sex, which was dependent on undergoing genital surgery.478
Before proceeding with its analysis, the Court cites the High Commissioner for Human Rights as well as CMRec(2010)5 and Resolution 1728 of the Council of Europe Parliamentary Assembly, but also pays attention to the third party interventions submitted by Alliance Defending Freedom and Unione Giuriste Cattolici Italiani.479 The Court does underline that the matter at hand differs from the trans* cases it previously adjudicated, since it directly concerns the requirement of sex reassignment surgery for the recognition of the applicant’s chosen name.480 However, it also stresses that this case – unlike A.P., Garçon et Nicot – does not concern a medical treatment prescribed against a person’s will, and that the applicant’s physical integrity is therefore not at stake.481 In doing so, the Court interprets this case restrictively, refusing to extend it to the situation of transgender persons who wish to obtain gender recognition but do not want to undergo sex reassignment surgery.
The Court does consider the accuracy of civil records to be a legitimate aim, and recognises the alleged needs to establish strict procedures for any changes in legal identity: “la Cour admet pleinement que la préservation du principe de l’indisponibilité de l’état des personnes, de la garantie de la fiabilité et de la cohérence de l’état civil et, plus largement, de l’exigence de sécurité juridique relève de l’intérêt général et justifie la mise en place de procédures rigoureuses dans le but notamment de vérifier les motivations profondes d’une demande de changement légal d’identité.482” However, it states that the decision concerning S.V. did not take her particular circumstances into account, insisting on her medical transition, which was in progress, as well as her social transition: “celle-ci avait entrepris un parcours de transition sexuelle depuis des années et […] son apparence physique, de même que son identité sociale, était déjà féminine depuis longtemps.483”
478 S.V. v. Italy App. no. 55216/08, 11 October 2018 (ECtHR) 479 Ibid., §27,28,51 480 Ibid., §57 481 Ibid., §65 482 Ibid., §69 (There is, as of yet, no official translation into English of S.V. v. Italy.) 483 Ibid., §70
110 Considering this, the Court rules that the Italian procedure placed the applicant in a situation of humiliation, vulnerability and anxiety for an unreasonable amount of time.484 Referring to CMRec(2010)5, which preconizes “quick, transparent and accessible procedures”485, the Court concludes that this situation violated Article 8 ECHR486.
Similarly, in X. v. the Former Yugoslavian Republic of Macedonia487, the Court interprets an application that questions sex reassignment surgery as a requirement for gender recognition very restrictively. In this case, the applicant was a trans* man who protested, firstly, against the lack of a clear legal framework on gender recognition in his home country and, secondly, against the obligation forced onto him by the domestic courts to undergo genital surgery before he can qualify for gender recognition.488
In accordance with its reasoning in Goodwin, the Court concluded that the current legal framework did not provide “quick, transparent and accessible procedures” for gender recognition and that those legislative gaps “left the applicant in a situation of distressing uncertainty vis-à-vis his private life and the recognition of his identity”.489 It is for this reason only that the Court ruled that there had been a violation of Article 8 of the Convention on account of the lack of a regulatory framework ensuring the right to respect for the applicant’s private life.490 Having already found a violation of Article 8, it refused to consider the applicant’s claim about the requirement of sex reassignment surgery.491
This judgment is not without its positive aspects. For example, the Court genders the applicant correctly, despite the fact that he has not yet obtained gender recognition and has no desire to undergo sex reassignment surgery. This new development in the Court’s case law shows respect for the gender identity of transgender persons. This respect is made explicit in the Court’s statement that “the right to respect for private life under Article 8 of the Convention extends to gender identity, as a component of personal
484 Ibid., §72 485 Ibid., §73 486 Ibid., §75 487 X v. FYROM 488 Ibid., §3 489 Ibid., §70 490 Ibid., §71 491 Ibid.
111 identity […] for all individuals, including transgender people492”. Most importantly for this study, the Court cites progressive and even activist documents by the Parliamentary Assembly, the Council of Ministers, the High Commissioner for Human Rights and even Transgender Europe in its analysis.493 Nonetheless, this case still confirms a rather stereotypical narrative about trans* persons: the applicant knew he was a man “from an early age494”, chose to receive HRT495, and had a double mastectomy496. These aspects of a medical transition have ensured that the applicant’s appearance conforms to society’s idea of a man. This implicitly ties the right to gender recognition to physical appearance, which also strongly informed the Court’s approach in S.V v. Italy.
In both of these judgments, the Court consciously chooses to interpret the applications restrictively, refusing to rule on the matter of sex reassignment surgery as a requirement for gender recognition. This tactic leaves a large subset of the trans* population in the dark regarding their right to gender recognition, and indeed makes them vulnerable to human rights abuses as described above. We can only hope that the Court will finally rule explicitly – and positively – in one of the similar cases currently pending before the Court.497
Both these judgments also avoid the issue of physical integrity. This is interesting, since it seems obvious that the Court’s analysis in A.P., Garçon et Nicot regarding informed consent and impossible dilemmas can also be applied to requirements regarding medical transition. However, in A.P., Garçon et Nicot, the Court did not interpret the requirement of “irreversible change in appearance” as mandatory sex reassignment surgery, but rather only as a sterilisation requirement.498 This refusal to rule on mandatory sex reassignment surgery clearly continues in S.V. v. Italy and X v. FYROM.
492 Ibid., §38 493 Ibid., §31-35 494 Ibid., §7 495 Ibid., §7 496 Ibid., §14 497 A.D. and A.K. v. Georgia, App. no. 57864/17 and 79087/17, Applications of 1 August 2017 and 10 November 2017 (ECtHR), R.L. and P.O. v. Russia, App. no. 36253/13 and 52516/13, Applications of 25 May 2013 and 30 May 2013 (ECtHR), X and Y v. Romania, App. no. 2145/16 et 20607/16, Applications of 19 December 2015 and 4 April 2016 (ECtHR) 498 A.P., Garçon and Nicot v. France , §120
112 Regarding other requirements for gender recognition, the only available judgment regards the obligation to submit to a medical examination to prove that a medical transition has been completed. In A.P., Garçon et Nicot, the Court – somewhat questionably – qualifies the obligation to undergo such a medical assessment as part of the judge’s right to gather evidence in a judicial procedure.499 In this area, the State is allowed considerably more room for manoeuvre than in the area of trans* persons’ right to identity.500 Consequently, the Court finds that the French judge acted within its competence501 and that there was no violation of Article 8 ECHR502. This, of course, poses the question of whether the Court would find a violation in cases where a medical examination is required in the context of an administrative procedure, since the fact- finding power of the domestic courts would no longer be a factor to be considered.
In S.V. v. Italy, the Court refuses to examine the application separately under Article 14 ECHR.503 This is particularly unfortunate, since requirements for gender recognition relating to medical transition are a perfect illustration of how requirements for gender recognition enforce and even cause discrimination of trans* persons, not only compared to cisgender persons, but also between different categories of trans* persons.
Like all abusive requirements for gender recognition, medical requirements expose trans* persons to discrimination by institutionalising a period of time in which a person may be outed as trans* on a daily basis504, during which they are exposed to “vulnerability, humiliation and anxiety505”. Furthermore, as stated by the IACtHR (cf. supra), forcing trans* persons to undergo a variety of invasive procedures before they can have their gender recognised, simply because their autonomously developed gender identity differs from the one third parties thought they would develop and cisgender persons’ autonomously developed gender identity does not, is unreasonable and discriminatory. 506 Lastly, such requirements create far-reaching intersectional
499 Ibid., §150 500 Ibid., §150 501 Ibid., §153 502 Ibid., §154 503 S.V. v. Italy , §77 504 Lau, ‘Gender Recognition as a Human Right’, p.5 505 Christine Goodwin v. UK, §77 506 Advisory Opinion OC-24/17 on Gender Identity, And Equality And Non-Discrimination Of Same-Sex Couples, §131
113 discrimination. Indeed, not all trans* persons are willing to (fully) medically transition: transgender persons who do not experience physical dysphoria or who only experience physical dysphoria about certain body parts may be understandably unwilling to undergo invasive medical procedures that have no benefit for them. The same goes for non-binary trans* persons, with the added discrimination that requiring a full medical transition enforces a very binary view on sex and gender. All trans* persons may also find themselves in situations in which (full) medical transition is impossible for them. Certain procedures may be counter-indicated or even harmful for chronically ill or disabled trans* persons. Less wealthy trans* persons may remain unable to pay for such procedures as long as they are not covered by social security and health insurance. Such requirements consequently ensure that gender recognition is de facto only accessible for wealthy, healthy, able-bodied transsexual persons. Refusing to remedy this situation would clearly make gender recognition an illusory right.
Requiring a medical transition before granting someone gender recognition therefore violates Article 14 ECHR on three levels: it causes discrimination against trans* persons, it discriminates between trans* persons and cisgender persons, and it discriminates between trans* persons who are willing and able to undergo a full medical transition and those who are not. It is regrettable that the Court as yet refuses to consider this aspect of trans* persons’ right to gender identity.
In this regard, it is relevant to note that, although the European Committee for Social Rights’ judgment explicitly concerns sterilisation as a requirement for gender recognition507, the Committee seems to consider that in the case of trans* persons, mandatory sex reassignment surgery and mandatory sterilisation are one and the same. Indeed, it often mentions “sterilisation” and “gender reassignment surgery” in the same breath. For example, after finding that the Czech law requires sterilisation as a condition for gender recognition, the Committee “notes that many transgender persons will wish to undergo such a procedure” and “also notes that there may be others who do not wish to undergo such treatment or for whom it is not recommended. Transgender persons in the Czech Republic who do not wish or are not advised for health reasons, etc., to undergo gender reassignment surgery will be unable to have their identity documents changed to
507 Transgender Europe and ILGA-Europe v. the Czech Republic, App. no. 117/2015, §76
114 reflect their gender.“508 Later, it “considers that surgical gender reassignment surgery as required in the Czech Republic for a change of gender identity is not necessary for the protection of health.”509 It can be concluded that, unlike the ECtHR, the ECSR does, in fact, condemn mandatory sex reassignment surgery as a requirement for gender recognition. Given the ECtHR’s broader impact on national legislation, it would be an extremely positive development were the ECtHR to follow in its colleague’s footsteps in this regard.
Several cases concerning mandatory medical treatments as requirements for gender recognition are currently pending before the ECtHR. R.L. and P.O. v. Russia510, A.K. and A.D. v. Georgia511 and X and Y v. Romania512 all concern a requested change of gender marker without having undergone sex reassignment surgery, but after HRT and other surgeries related to medical transition. This would give the Court a straightforward opportunity to rule on mandatory sex reassignment surgery. X v. Russia513, by contrast, concerns a requested change of name without having undergone either HRT or any surgeries; the applicant has only transitioned socially. In this case, the Court could strengthen the rights of transgender persons in particular by completely separating the right to gender recognition from any medical transition whatsoever. Let us hope that the ECtHR makes use of any – or all – of these opportunities to rectify a situation that de facto legalises the coercing of invasive medical procedures by making the right to gender recognition dependent on their completion.
iii. Mandatory diagnosis of transsexuality/gender identity disorder/gender dysphoria
Within the context of depathologisation of trans* identities, it might seem strange to demand that a trans* person provide proof that they suffer from a mental illness before granting them access to gender recognition. Even the requirement of gender dysphoria, which is not necessarily considered a mental illness514, is still dependent on contact with
508 Ibid., §76 509 Ibid., §80 510 R.L. and P.O. v. Russia 511 A.D. and A.K. v. Georgia 512 X and Y v. Romania 513 X v. Russia App. no. 60796/16, Application of October 2016 (ECtHR) 514 Theilen, ‘Depathologisation of Transgenderism and International Human Rights Law’, , p.329
115 a mental health specialist and is still a diagnosis, which is a form of pathologisation. Nonetheless, most of the States that have not abolished all abusive requirements for gender recognition still require a diagnosis of transsexuality/gender identity disorder/gender dysphoria.515
This fact is a key aspect of the Court’s argumentation regarding mandatory diagnosis in A.P., Garçon et Nicot. The second applicant submitted that requiring a diagnosis of a “gender disorder” as a condition for gender recognition amounted to labelling trans* persons as mentally ill, and that this infringed on trans* persons’ dignity.516 The Court, however, does not follow the applicant’s arguments. It does refer to the 2013 report of the French National Advisory Commission on Human Rights517 and the report of the Council of Europe’s Commissioner for Human Rights518, two documents that explicitly describe the international trend towards depathologisation of trans* identities. However, it also points to the WHO’s ICD-10, which still classified “transsexuality” as a mental illness519, as well as to a report by the French High Authority for Health, which states that a diagnosis of gender identity disorder is necessary to avoid providing irreversible medical reassignment treatment to someone who is not really trans*520.
The Court itself admits that the last argument is not very convincing in cases where the person in question does not, in fact, want to undergo such irreversible treatment.521 Nonetheless, it rules that, since the vast majority of Member States do require such a diagnosis for gender recognition, the State enjoys a broad margin of appreciation in this regard. 522 In view of this wide margin of appreciation, such gatekeeping is legitimated by the aims of ensuring persons do not unadvisedly change their legal identity523 and “safeguarding the principle of the inalienability of civil status, the reliability and consistency of civil-status records, and legal certainty, given that this
515 TGEU, Trans Rights Europe Index 2018 516 A.P., Garçon and Nicot v. France , §136 517 Ibid., §138 518 Ibid., §139 519 Ibid., §139 520 Ibid., §141 521 Ibid., §141 522 Ibid., §140 523 Ibid., §141
116 requirement also promotes stability in changes of gender in civil-status documents.524” Consequently, the Court finds that a requirement of diagnosis of gender identity disorder for gender recognition does not violate Article 8 ECtHR.525
This judgment makes it clear that, despite its references to the trend towards heightened acceptance of trans* persons in cases concerning gender recognition of post- operative transsexual persons as well as the sterilisation requirement, the Court does not act upon the trend towards depathologisation of trans* identities contained within this trend. In this case, it becomes clear that the Court’s assessment of state consensus as less important than the international trend towards acceptance of trans* persons, as established in Goodwin526, does not extend to all cases concerning trans* persons. More specifically, the Court is very circumspect concerning the trend towards depathologisation in se; indeed, its reasoning often relies heavily on pathologising narratives and arguments.527
iv. Impact on civil status
Article 8 ECHR protects the right to respect for private and family life. Article 12, in turn, states that men and women of marriageable age have the right to marry according to the national laws governing the exercise of this right. However, the legislation of several Member States on gender recognition requires that the person applying for gender recognition not be married.528 For people who are already married when they apply for gender recognition, this may mean that they have to divorce before their gender can be legally recognised, even if their partner wants to remain married to them.
Indeed, in most Member States, only marriages between people with a different legal gender are legal. If one of the partners in a “heterosexual” marriage receives access to gender recognition without divorcing, their marriage will automatically become a same-gender marriage. Consequently, this requirement is strongly entwined with the issue of same-gender marriage. As long as same-gender marriage is not legal
524 Ibid., §142 525 Ibid., §144 526 Christine Goodwin v. UK, §85 527 See Pieter Cannoot, ‘The pathologisation of trans* persons in the ECtHR’s case law on legal gender recognition’ Netherlands Quarterly of Human Rights 1 528 TGEU, Trans Rights Europe Index 2018
117 everywhere, this requirement will never fully disappear. Conversely, it will likely be eliminated gradually as same-gender marriage becomes legal in an increasing amount of Member States of the Council of Europe.
The first rulings of the ECtHR on transgender persons’ right to marry all concerned transgender persons who wished to marry a person of the same sex as the one they themself were assigned at birth. In Rees, Cossey, and Sheffield and Horsham, the Court ruled the fact that the prohibition of marriages between a trans* woman and a cisgender man and a trans* man and a cisgender woman did not violate Articles 8 and 12. In those cases, the Court considered that “the right to marry guaranteed by Article 12 refers to the traditional marriage between persons of opposite biological sex 529 ”. Consequently, it is logical for a trans* man to be forbidden to marry a cisgender woman, and for a trans* woman to be forbidden to marry a cisgender man. Interestingly, in Cossey, the Court mentions that there is no legal impediment to a trans* woman marrying a cisgender woman.530 It would certainly have been interesting to see the Court rule on such a situation in practice.
In Goodwin, however, the Court changed its reasoning, stating that, given the changes in the institution of marriage as well as the development in the field of transsexuality, it was "not persuaded that at the date of this case it can still be assumed that [the terms “man and woman” as referred to in Article 12 ECHR] must refer to a determination of gender by purely biological criteria.”531 Consequently, it found that “it is artificial to assert that post-operative transsexuals have not been deprived of the right to marry as, according to law, they remain able to marry a person of their former opposite sex..”532 The Court finds that such a situation equates to a de facto bar on any exercise of the right to marry, which violates Article 12.533 Consequently, in this judgment, the Court ruled that trans* women – or at least post-operative transsexual women – have the right to marry a man, and one can logically assume that trans* men may similarly marry a woman.
529 Rees v. UK, §49; Cossey v. UK, §43; Sheffield and Horsham v. UK, §66 530 Cossey v. UK, §45 531 Christine Goodwin v. UK, §100 532 Ibid., §101 533 Ibid., §103-104
118 The Court’s judgment regarding the mandatory termination of existing marriages is very different from its judgment in Goodwin. Indeed, such marriages are perceived as heterosexual until one of the partners comes out as trans*, and allowing gender recognition while the marriage remains legal would amount to the recognition of a same-gender marriage.
The Court seemed to find it so clear that such a situation did not violate Articles 8 and 12 that, in 2006, it declared two cases, Parry v. UK and R. and F. v. UK, manifestly ill- founded because they both concerned a trans* woman who wished to be provided with a gender recognition certificate without divorcing her wife, who desired to remain married as well.534 After all, the marriages had to be terminated because marriages between two persons of the same legal gender were not possible in the UK, a situation that the Court did not condemn.535 Furthermore, the marriages only had to be converted into registered civil partnerships, which carried almost all the same rights as marriage.536 Consequently, these applications were found to be inadmissible.537
In Hämäläinen v. Finland, a more recent case, the Court did declare a similar application admissible. This case also concerned a trans* woman and a cisgender woman who wished to remain married but could not do so if the trans* partner wished to obtain gender recognition.538
In the assessment of this case, the Court consults comparative European law regarding gender recognition and same-gender marriages539, as well as the third party interventions of Amnesty International540 and Transgender Europe541. It also cites the Commissioner for Human Rights’ recommendation that divorce requirements be removed from national law.542 Nonetheless, the Court ruled that the conversion of a (heterosexual) marriage into a (same-gender) registered partnership did not violate
534 Parry v. UK, App. no. no. 42971/05, 26 November 2006 (ECtHR); R. and F. v. UK, App. no. 5748/05, 26 November 2006 (ECtHR) 535 Parry v. UK, p.12&15; R. and F. v. UK, p.12&15 536 Parry v. UK; R. and F. v. UK 537 Parry v. UK; R. and F. v. UK 538 Hämäläinen v. Finland App. no. 37359/09, 16 July 2014 (ECtHR) 539 Ibid., §31-33 540 Ibid., §54-55 541 Ibid., §56 542 Ibid., §48
119 Articles 8 and 12. Indeed, the Court considers that it cannot force Member States to recognise same-gender marriages 543 , and that “the effects of the conversion of the applicant’s marriage into a registered partnership would be minimal or non-existent as far as the applicant’s family life is concerned.544” In this case, the Court once more refers to the lack of European consensus on the conditions for providing married trans* persons with gender recognition.545 Like in A.P., Garçon et Nicot, this contradicts the Court’s previous case law, notably in Goodwin, where it stated that in cases regarding trans* persons, the international trend towards acceptance was more important than any consensus between Member States.546
As long as conversion into a civil partnership is a possibility, the Court finds that mandatory dissolutions of marriages are not a violation of the Convention. This leads to a situation in which trans* persons – like cisgender persons – are restricted in their possibilities to marry someone depending on the gender of their partner. This once more causes a situation of intersectional discrimination of trans* persons: heterosexual trans* persons’ right to gender recognition is subject to less, or less invasive, conditions than that of their queer counterparts.
In their dissenting opinion in Hämäläinen, however, judges Sajó, Keller and Lemmens stated that "the majority's starting point is the assumption that the applicant had a real choice between maintaining her marriage and obtaining a female identity number (see paragraphs 76-78 of the judgment). We believe that it is highly problematic to pit two human rights – in this case, the right to recognition of one's gender identity and the right to maintain one's civil status – against each other."547 Furthermore, they argue that there are no compelling practical or moral reasons why the plaintiff and her wife should divorce, because allowing a small number of trans* persons to remain married would have no significant impact on society, and that this interference therefore has no legitimate purpose in a democratic society.548 To back this claim, the dissenting judges
543 Ibid.n §96 544 Ibid., §85 545 Ibid., §74 546 Ibid., §85 547 Ibid., §6 548 Ibid., dissenting opinion §9-14
120 cite the Yogyakarta Principles as well as constitutional judgments condemning mandatory divorce in Germany, Austria and Italy.549
If this faction and likeminded judges manage to convince their colleagues of this reasoning, we might see a change regarding divorce as a requirement for gender recognition in future judgments. It is, however, not clear which pending case could present such an opportunity. X and Y v. Romania does contain a petition regarding the violation of the right to marry and start a family under Articles 8 and 12, but it is not clear from the facts how these rights may have been concretely violated in this case.550
v. Impact on parental rights
In many Member States, it is not possible for a child to have two fathers or two mothers. This leaves trans* parents with two options: either they retain legal status as mother or father of their child, a status which no longer corresponds to their gender and that outs them as trans* to anyone who has access to their child’s birth certificate, or they lose (certain) parental rights.551 Similarly to the changes in civil status, it can be assumed that this problem will fade away as same-gender couples’ rights progress in the Member States. Nonetheless, such an evolution will not be swift enough to resolve the problems of trans* persons who currently face issues concerning their parental rights. It is also difficult to ignore that this abusive requirement is very similar to the sterilisation requirement for gender recognition: it is likely rooted in the prejudice that trans* persons are not fit to have children or to raise them.
While the Court has not ruled directly on this requirement for gender recognition, there is some case law related to this topic. In X, Y and Z v. UK (1997), X was a trans* man who had had a child (Z) with his female partner (Y) via artificial insemination and wished to be legally recognised as his child’s father.552 Being legally recognised as the father of a child conceived through artificial insemination was, indeed, possible for cisgender men.553 Since he was legally registered as a woman, however, the
549 Ibid., dissenting opinion §16 550 X and Y v. Romania 551 Commissioner for Human Rights of the Council of Europe, Human Rights and Gender Identity, p.9-10 552 X, Y and Z v. UK App. no. 21830/93, 22 April 1997 (ECtHR) 553 Ibid., §45
121 British government denied him this.554 The Court found that this did not constitute a violation of Article 8. It cited several reasons for this: the possibility for X and Y to be granted parental rights and duties towards Z through a joint residence order; the low importance of birth certificates in British society, which allowed X to act as Z’s father despite not being registered as such without anyone being none the wiser; the possibility for X to write a will to provide Z with a succession; the possible negative consequences that having a trans* father could have on Z; and the consequences that such an allowance could have on the rest of British family law.555 Most importantly, however, the Court points to a lack of European consensus regarding the parental rights of trans* persons, which grants the State a wide margin of appreciation.556 Since this case predates Goodwin, the Court had not yet established the importance of the international trend towards the acceptance of trans* persons.
In their dissenting opinions, however, judges Foighel, Vilhjalmsson, Casadevall, Russo and Makarczyk did consider this situation to be a violation of Article 8, and even of Article 14, since in their opinion, not allowing a trans* man to be legally recognised as the father of his child conceived through artificial insemination was discriminatory compared to cisgender men, who were allowed this recognition.557 Even in 1997, the Court's judgment clearly did not reflect a unanimous opinion.
P.V. v. Spain concerned a trans* woman whose visiting rights regarding her son had been restricted due to “emotional instability” – an argument which the child’s other mother had linked to P.V.’s trans* identity but which the Spanish courts alleged to have considered in se. 558 The ECtHR gave ear to Spain’s allegations, judging that the applicant’s emotional instability could indeed negatively affect her son’s psychological integrity and further development.559 The Court also noted that the applicant was still allowed to see her son and was not completely deprived of visitation rights.560 It therefore considered that the Spanish courts’ decision was taken solely with the best
554 Ibid., §46 555 Ibid., §47-51 556 Ibid., §44 557 Ibid., p.20-27 558 P.V. v. Spain App. no. 35159/09, 30 November 2010 (ECtHR) 559 Ibid., §32 560 Ibid., §34
122 interests of the child in mind.561 In the same paragraph in which it stated this, however, the Court mentioned that such visitation rights have been established “to allow the son to get used to his mother’s sexual identity562”, and previously, it had noted that the applicant’s trans* identity was at the origin of the procedure, had been mentioned in all the domestic judgments, and had even negatively impacted the scope of the applicant’s visitation rights.563 Despite the fact that P.V.’s trans* identity was therefore clearly a factor in the limitation of her parental rights, the Court nonetheless found that there was no violation of Article 8 or 14.564
Finally, in Hämäläinen, the applicant complains that the conversion of her marriage into a registered partnership renders the situation of her child “comparable to that of a child born out of wedlock565”. The Finnish government submitted that neither the conversion of the applicant’s marriage into a civil partnership neither the applicant’s gender recognition would annul her existing paternity towards her child, and that there was therefore no negative consequence regarding her parental rights.566 The Court followed the State’s reasoning567 and found that there was therefore no violation of Article 8 of the ECHR.568 The Court did not find that being considered the father of her child was an obstacle to the applicant’s right to gender recognition.
The cases in question consider very specific situations, which makes it hard to draw any general conclusions from them. Nonetheless, it seems clear that, when children are concerned, the Court remains very reticent to ensure that trans* persons can fully exercise their rights. In every single one of these cases, it finds an objective justification for the impact on the parent-child relationship; nonetheless, the parents’ trans* identity is always a factor, and the Court clearly questions whether allowing a trans* person full parental rights over a child is in the child’s best interests. It is regrettable that such stereotypes about trans* persons prevail even in the Court’s jurisprudence.
561 Ibid., §36 562 Ibid., §36 563 Ibid., §28 564 Ibid., §37 565 Hämäläinen v. Finland , §44 566 Ibid., §51 567 Ibid., §86 568 Ibid., §89
123 There is currently a case against Russia pending before the ECtHR, in which a trans* man asks to be recognised as the legal father of his biological son.569 He is currently registered as his son’s mother, and since the child still has another father (though he has been deprived of parental rights) and Russian law makes it impossible for two fathers to be listed on a child’s birth certificate, this situation cannot be remedied. Hopefully, the judgment of the Court in this case will be able to provide clarity and more nuance regarding the best interests of children whose parents are trans*.
vi. Real Life Experience
The ECtHR’s jurisprudence on waiting times or “Real Life Experience” as a requirement for gender recognition is extremely limited. The only case in which this condition is touched about is that of Schlumpf v. Switzerland570, and even this judgment only very vaguely and indirectly concerns real life experience as a requirement for gender recognition. Indeed, the applicant’s age – 67 years old – made the Court’s conclusions in this case extremely dependent on her highly specific situation. The application in this case concerned the fact that Mrs. Schlumpf’s insurance company refused to reimburse her sex reassignment surgery because she had not complied with a two years waiting time before undergoing such a procedure. The ECtHR ruled that this requirement was excessive: its necessity had not been proven within the evolutive interpretation of trans* rights as provided for in Goodwin571, and the required two years effectively prolonged the applicant’s “situation of humiliation, vulnerability and anxiety” as established in the same case.572 The mechanical application of this waiting time had not taken into account the applicant’s specific circumstances, notably her age and the long period of time during which she had sacrificed her identity for the comfort of her family.573 The Court consequently found a violation of Article 8.574
The Court’s references to Goodwin are, of course, applicable in the case of any trans* person. “Real life experience” does not comply with the international evolution
569 Y.P. v. Russia App. no. 8650/12, Application of 18 January 2012 (ECtHR) 570 Schlumpf v. Switzerland 571 Ibid., §113 572 Ibid., §114 573 Ibid., §114 574 Ibid., §116
124 regarding trans* rights, and it always prolongs the dreaded “situation of humiliation, vulnerability and anxiety”. Nonetheless, the Court’s emphasis on the applicant’s specific circumstances, as well as the fact that this case regards reimbursement of medical transition rather than legal gender recognition, makes it rather unlikely that the principles found in this case would be applied as such in other cases regarding mandatory waiting times.
vii. Age restrictions
Legal gender recognition is sometimes reserved to trans* persons between 18 and 65 years of age. This puts both elderly trans* persons and trans* minors in extremely difficult situations, not in the least because they are more often dependent on other people, who may not be supportive or even accepting of their gender identity. Unfortunately, the Court’s jurisprudence on this subject is quasi non-existent.
From its reasoning in Schlumpf v. Switzerland, we can assume that the Court would probably condemn situations in which gender recognition is refused to trans* persons older than 65 years old.575 However, the case is very specific and unrelated to gender recognition; therefore, nothing is certain.
Regarding trans* minors, the situation is even more uncertain. The ECtHR has not once been asked to rule in a case concerning trans* minors. In other cases concerning minors, of course, we see that the Court always requires that the best interests of the child be given priority.576 However, it remains extremely ambiguous whether the Court would consider access to gender recognition to be beneficial to a child, or rather detrimental to them. Despite the many studies577 and recommendations from human rights organs, including those whose mandate specifically concerns the rights of children578, that assert that recognising a trans* minor’s identity has a high positive impact on them and is therefore in line with their best interests, we see from the Court’s judgments concerning children with trans* parents that the Court is still not fully
575 cf. 5(c)(vi) 576 See, for example: Mennesson et al. v. France, App. no. 65192/11, 26 June 2014 (ECtHR); Chbihi Loudoudi et al. v. Belgium, App. no. 52265/10, 16 December 2014 (ECtHR) 577 See Bucataru, ‘Using the Convention on the Rights of the Child to Project the Rights of Transgender Children and Adolescents: the Context of Education and Transition’, , p.71-76 578 UN Committee on the Rights of the Child, General comment No. 20 (2016) on the implementation of the rights of the child during adolescence (2016), §33-34
125 comfortable with the association of children with trans* identities. The Court’s stance on gender recognition for trans* minors therefore remains highly hypothetical.
d. Argentina: the first state to adopt national legislation based on self-determination
In 2012, Argentina became the first country in the world to pass a gender recognition law that was based entirely on self-determination and removed all requirements for gender recognition. Given the prevalence of forced disappearances and forced adoptions in Latin America, Latin-American human rights discourse is very concerned with the right to identity. The IACtHR has stated that the right to identity “is one of the means through which observance of the rights to juridical personality, a name, nationality, civil registration, and family relationships is facilitated, among other rights recognized in international instruments579” and that failing to recognise the right to identity “can mean that a person has no legal proof of his or her existence, which makes it difficult to fully exercise his or her civil, political, economic, social, and cultural rights.580”
This law was passed within a context of generalised violence, stigma and discrimination against trans* persons. Murders of trans* persons, particularly of trans* women sex workers, were extremely common; transphobia made it very hard for trans* persons to access healthcare; discrimination and violence forced trans* persons to abandon educational or professional pursuits; etc.581 Within the Latin-American context, it was a logical conclusion that ensuring trans* persons’ right to identity would facilitate their access to these other rights.582
Consequently, the Argentinian gender identity law did away with all abusive requirements for gender recognition. It states that “[a]ll persons can request that the recorded sex be amended, along with the changes in first name and image, whenever they do not agree with the self-perceived gender identity”, and that the only requirements for this are that the person must:
579 Gelman v. Uruguay, 24 February 2011 (IACtHR), §122 580 Ibid., §122 581 Laura Saldivia, ‘The Right to Gender Identity in Argentina: Context, Originality, and the Need for Worldwide Promotion’ SELA (Seminario en Latinoamérica de Teoría Constitucional y Política) Papers 148 582 Ibid.
126 “1. Prove that they have reached the minimum age of eighteen (18) years, with the exception established in Article 5 of the current law.
2. To submit to the National Bureau of Vital Statistics or their corresponding district offices, a request stating that they fall under the protection of the current law and requesting the amendment of their birth certificate in the records and a new national identity card, with the same number as the original one.
3. To provide the new first name with which they want to be registered.”583
The law explicitly states: “In no case will it be needed to prove that a surgical procedure for total or partial genital reassignment, hormonal therapies or any other psychological or medical treatment has taken place.”584 This clearly eliminates any requirements regarding sterilisation or medical transition. The exclusion of the need for psychological treatment also seems to exclude the requirement of a diagnosis of gender dysphoria. The law mentions nothing explicit about real life experience, civil status or parental rights, but such conditions are not cited in the requirements outlined in Article 4. In this regard, it is important to note that same-gender marriage and shared parental rights for same-gender couples have been legal in Argentina since 2010585, two years before the gender identity law was voted.
Regarding minors, the Argentinian gender recognition procedure is much stricter than for adults, but gender recognition is nonetheless possible for trans* persons under 18 years of age. The request for gender recognition must be made “through their legal representatives and with explicit agreement by the minor586” and the minor must be represented by “a children’s lawyer as prescribed by Article 27 of Law 26061587” – the minor’s involvement is crucial, but not sufficient in itself. “The evolving capacities and best interests of the child as expressed in the Convention on the Right of the Child and in Law 26061 for the Comprehensive Protection of the Rights of Girls, Boys and Adolescents588” must also be taken into account. The Argentinian legislator does account
583 Art. 4 Ley establecése el derecho a la identidad de género de las personas 584 Art. 4 ibid. 585 The Guardian, ‘Argentina legalises gay marriage’ (15 July 2010)
127 for the fact that these best interests may not be respected when parents or tutors refuse to recognise their child’s identity, and provides a possible solution for this problem:
“When the consent of any of the minor’s legal representatives is denied or impossible to be obtained, it will be possible to resort to summary proceedings so the corresponding judges will decide, taking into account the evolving capacities and best interests of the child as expressed in the Convention on the Right of the Child and in Law 26061 for the Comprehensive Protection of the Rights of Girls, Boys and Adolescents.”589
There is proof that gender recognition for minors is de facto possible in Argentina, since in 2013, a six-year-old trans* girl was allowed to change her name on her official gender identity documents.590
The previous provisions clearly point towards a full implementation of trans* persons’ self-determination. The only restriction to this right is contained in Article 8 of the Gender Identity Law, which provides that “[t]he record amendments prescribed by the current law, once completed, can only be modified again with judicial authorization.”591 This renders it impossible to adapt one’s legal gender more than once and denies the fluid nature that gender has for certain persons.
The gender recognition procedure updates the Civil Register, the person’s birth certificate and their identity card.592 Furthermore, it is fully confidential593, free594, and does not require the involvement of any third party595 (except in the case of trans* minors). In an extremely positive development, this law has already been applied to non-binary persons.596
This law has made Argentina an international example regarding trans* persons’ legislative rights. In 2015, for example, the WHO cited Argentina as an international
589 Art. 5 ibid. 590 Telegraph, ‘Six-year-old becomes first transgender child in Argentina to change identity’ (27 September 2013)
128 example in a report on “Transgender people and HIV”.597 Indeed, an evaluation of the law’s impact conducted in 2014 did find that the law succeeded in its objective to facilitate trans* persons’ access to other rights. 598 It diminished stigma and discrimination and primarily improved access to health, education, work, and the exercise of civil and political rights. Discrimination and violence against trans* persons remain shockingly common, but they have significantly decreased since the implementation of the gender identity law. In healthcare settings, for example, it has dropped from 80% to 30%: in education, from 50% to less than 20%; institutional violence dropped from 40%-60% to 10%.599 There has, however, been no decrease in the murders of trans* persons600, which shows that the gender identity law has certainly not managed to eradicate transphobic violence in Argentina.
597 WHO, Policy brief: Transgender people and HIV (2015), p.9 598 Fundación Huésped, Gender identity law and transgender access to health care in Argentina 599 Ibid., p.59-61 600 Trans Respect, ‘Trans Murder Monitoring’ (2019)
129
e. National legislation in the most progressive Member States of the Council of Europe
i. Denmark
In 2014, Denmark followed in Argentina’s footsteps, becoming the first European country and the second country in the world to abolish abusive requirements for gender recognition and implement a procedure based largely on self-determination. Its purpose is to allow trans* persons to change their social security number in addition to their name and gender marker, in accordance with their gender.601 Nonetheless, the Danish law is a tad less progressive and respectful of trans* persons’ self-determination than the Argentinian law.
The Danish gender recognition law does eliminate all medical requirements for gender recognition. The comments included with the legislative proposal insist strongly on the need to eliminate the sterilisation requirement602, and hormonal treatment or surgeries are similarly deemed unnecessary603. No diagnosis of gender dysphoria is required either604, which confirms that Denmark has indeed based its law on the international trend of depathologisation of trans* identities. Same-gender marriage has been legal in Denmark since 2012605, and parental rights had been extended to same- gender couples even earlier606. Consequently, the law contains no requirements that might impact a trans* person’s family life.
While there is no actual requirement of “real life experience” in the Danish law, there is a mandatory waiting period: six months after the original application for gender
601 Art. 1§1 L 182 Lov 11 Juni 2014 om ændring af lov om Det Centrale Personregister (Tildeling af nyt personnummer til personer, der oplever sig som tilhørende det andet køn) (Denmark) 602 Margrethe Vestager, Forslag til Lov om ændring af lov om Det Centrale Personregister (Tildeling af nyt personnummer til personer, der oplever sig som tilhørende det andet køn) (Minister of Economy, 2014), p.2 603 Ibid., p.2 604 Ibid., p.2 605 Copenhagen Post, ‘Gay marriage legalised’ (7 June 2012)
130 recognition, the trans* person must confirm that they do want to adapt their legal gender. It is not required that the applicant use this period as “real life experience”607; however, the report on which the law is based does mention twice that this waiting period “may be used by the applicant to live as the desired sex”608. Such a waiting period still requires trans* persons to choose between remaining closeted for an additional six months or expose themselves to discrimination. “Real life experience” has consequently been eliminated de iure, but is de facto still present. The report’s mention that the purpose of this waiting period is to avoid “impulsive” changes in legal sex609 also conveys the idea of trans* identities as unreliable “phases”, which is regrettable.
A second unfortunate aspect of the Danish gender recognition law is the fact that it is subject to age restrictions. Indeed, it states that, concerning gender recognition, “[i]t is furthermore a condition that the applicant is 18 years old at the time of the submission of the application.”610 This provision irrefutably excludes trans* minors from the scope of this law. This exposes trans* children and adolescents to a significant period, possibly even to years, of vulnerability to discrimination from the outside world and even from their very caregivers.
A positive aspect of this law, however, is that it is associated to a change in the law on assisted reproduction, in which every occurrence of the term “pregnant woman” is changed to “pregnant person”.611 Such a provision does more than just abolish the requirement of sterilisation: it explicitly ensures trans* persons’ right to conceive and raise children.
The Danish gender recognition law is based on a report by a ministerial Working Group on Legal Gender Change.612 The working group starts by considering Denmark’s international obligations, notably under the ECHR. Under Article 8, the right to private life, the working group cites Van Kück v. Germany, Schlumpf v. Switzerland, B v. France,
607 Art. 1§1 L 182 Lov 11 Juni 2014 om ændring af lov om Det Centrale Personregister (Tildeling af nyt personnummer til personer, der oplever sig som tilhørende det andet køn) (Denmark); see: https://www.ft.dk/samling/20131/lovforslag/l182/index.htm 608 Danish Working Group on legal gender recognition, Rapport fra arbejdsgruppen om juridisk kønsskifte, p.7 609 Ibid., p.3 610 Art. 1§1 L 182 Lov 11 Juni 2014 om ændring af lov om Det Centrale Personregister (Tildeling af nyt personnummer til personer, der oplever sig som tilhørende det andet køn) (Denmark) 611 L 60 Forslag til lov om ændring af lov om assisteret reproduktion i forbindelse med behandling, diagnostik og forskning m.v. og sundhedsloven 612 Danish Working Group on legal gender recognition, Rapport fra arbejdsgruppen om juridisk kønsskifte
131 Sheffield and Horsham v. UK, and Goodwin v. UK. It consequently comes to the conclusion that the conditions for gender recognition still fall within the State’s margin of appreciation – nonetheless, it considers that there is a serious chance that the sterilisation requirement could be condemned by the ECtHR under Article 8.613 It considers that this possibility is strengthened by the Parliamentary Assembly’s resolution on “Putting an end to coerced sterilisations and castrations”.614
ECtHR jurisprudence is extensively taken into account as the working group considers that there is “clear and uncontested evidence of a continuing international trend615” towards the abolition of medical requirements for gender recognition, and that the Court’s reasoning in Goodwin suggests that the importance of this international trend will remain impactful in future trans* cases616. To illustrate this international trend, the working group points to movements towards abolishing medical requirements in Iceland, the Netherlands, Portugal, the UK, Sweden and Germany.617 The working group submits that trans* persons who have not undergone sex reassignment surgery may nonetheless find themselves in a situation of “vulnerability, humiliation and anxiety” – referring once more to Goodwin – if they are not granted gender recognition.618 In this regard, the working group mentions L. v. Lithuania, in which a trans* man who had been prevented from undergoing sex reassignment surgery was found to be “in a situation of distressing uncertainty vis-à-vis his private life and the recognition of his true identity” because this situation obstructed his access to gender recognition. 619 A last argument in that regard is the fact that the European Commissioner for Human Rights as well as the Yogyakarta Principles explicitly call for the removal of such medical requirements.620
Lastly, the working group considers whether medical requirements for gender recognition, and particularly sterilisation, may additionally raise problems under Article 3 ECHR. Citing V.C. v. Slovakia, it considers that such procedures are always covered by
613 Ibid., p.27-30 614 Ibid., p.30-31 615 Ibid., p.31 616 Ibid., p.31 617 Ibid., p.31 618 Ibid., p.32 619 Ibid., p.32 620 Ibid., p.32-33
132 “full and informed consent” – even when required for gender recognition, which goes against Hammarberg’s interpretation in the report cited by the working group. It also mentions that lack of access to sex reassignment surgery was not considered to violate Article 3 in L. v. Lithuania, and concludes that Article 3 is therefore not applicable to medical requirements for gender recognition. 621
In their search for examples for the legislative proposal, the working group looks to Argentina, Portugal, Sweden, Iceland, the UK, the Netherlands and Norway.622 Since Argentina was the only country to have a gender recognition law based entirely on self- determination at that time, the working group’s findings regarding that country are particularly relevant. The lack of requirements for gender recognition in Argentina is explicitly mentioned in the working group’s report.623 However, the working group makes an extremely puzzling assertion: they state that the Argentinian law does not provide for gender recognition for trans* persons under 18 years of age.624 This statement is demonstrably false: Article 5 of the Argentinian law explicitly mentions the conditions and procedure to follow to grant gender recognition to trans* minors, regardless of age.625 The working group only cited Article 4, and this assertion may imply that they have not, in fact, studied the entire Argentinian law. This is especially perplexing as Article 4 itself mentions “the exception contained in Article 5.”626 This oversight is regrettable, since – as Argentina was Denmark’s best example – it might have been a decisive factor in Denmark’s decision to restrict gender recognition to adults. This mistake may be responsible for the continuing vulnerability of trans* minors in Denmark.
The working group also heard two trans* organisations during the drafting of its report: LGBT Denmark and the Association of Transgender Persons in Denmark (FATID).627 LGBT Denmark recommended that gender recognition should be provided
621 Ibid., p.34-36 622 Ibid., p.36-43 623 Ibid., p.36 624 Ibid., p.36 625 Art. 5 Ley establecése el derecho a la identidad de género de las personas 626 Art. 4 ibid. 627 Danish Working Group on legal gender recognition, Rapport fra arbejdsgruppen om juridisk kønsskifte, p.43-44
133 without any requirements, including to children (with the consent of their guardian).628 FATID, in turn, recommended an opinion – not a diagnosis – by a doctor or psychologist, a “real life experience” of one year and a payment of 1000 Danish crowns (about 135 euros).629 The working group did follow up FATID’s recommendation concerning the waiting time, “in order to minimise the risk that those concerned regret their decision and apply for a new legal status corresponding to the biological gender.”630 The recommended waiting time was, nonetheless, shortened to six months, which the working group considers “reasonable and proportional.”631
Taking into account all of the previous elements, the working group considers several models for gender recognition: the declarative model (grosso modo what this study considers the self-determination model), the assessment model, the diagnostic model and the treatment model.632 Considering all the elements outlined before – in particular Denmark’s obligation under the ECHR 633 – as well as legislative, administrative and financial consequences for the State634, the working group eventually recommends the declarative model or the assessment model.635
In its legislative proposal, the Danish government chooses the declarative model, stating that it allows trans* persons to “live a dignified life in accordance with their own wishes” within an “international trend that is moving in the direction of easing the conditions for legal gender change” as evidenced in Sweden, Germany and Norway.636 Within the declarative model, the government once more insists on the “reasonable and proportional” character of a six months waiting period.637 Legal recognition of non- binary genders is not truly possible in Denmark: the gender marker “X” is only available
628 Ibid., p.43 629 Ibid., p.43-44 630 Ibid., p.47 631 Ibid., p.48 632 Ibid., p.44-54 633 Ibid., p.52 634 Ibid., p.54-74 635 Ibid., p.77 636 Vestager, Forslag til Lov om ændring af lov om Det Centrale Personregister (Tildeling af nyt personnummer til personer, der oplever sig som tilhørende det andet køn), p.4 637 Ibid., p.4
134 to persons who have been “diagnosed as transsexual” by the National Hospital’s Sexological Clinic but have not yet undergone sex reassignment surgery.638
ii. Malta
Malta’s 2015 Gender Identity, Gender Expression and Sex Characteristic Act (GIGESC) was triggered by a petition before the ECtHR. Mrs. Cassar, a Maltese transsexual woman, had completed her medical transition and obtained legal gender recognition. Consequently, she wanted to marry her partner, a cisgender man. She was, however, denied this, on the grounds that legal gender recognition had the sole purpose of protecting her privacy and could not truly change her sex. Therefore, she was still considered male and could not marry a man – an assessment that was clearly contrary to the ECtHR’s reasoning in Goodwin. Mrs. Cassar brought her complaint all the way to the ECtHR.639 In 2013, a progressive government was elected in Malta, and the new government reached an out-of-court settlement with Mrs. Cassar, allowing her to marry her partner and amending the Civil Code to explicitly ensure this right for other trans* persons.640 The new government went on to amend three more laws, adding “gender identity” to the constitutional list of prohibited discrimination grounds, considering it a “particular social group” for the purposes of requests for asylum, and allowing sick leave as well as other labour rights and protections for “gender reassignment.”641 Last but not least, the Government Programme stated the government’s intention to introduce a law that ensured the legal recognition of trans* persons’ self-determined identity.642
While Cassar v. Malta was the trigger for the creation of this law, the legislative process drew on many more sources. First, a suggested act was written by the LGBTI Consultative Council643 – more specifically, by Dr. Falzon of the Malta Gay Rights Movement 644 . Then, a public consultation process was started, welcoming and considering submissions from a variety of national and international organisations,
638 Lena Holzer and ILGA-Europe, Non-Binary Gender Registration Models in Europe: Report on third gender marker or no gender marker options (2018), p.20 639 Cassar v. Malta App. no. 36982/11, Application 1 June 2011 (ECtHR) 640 , Gender Identity, Gender Expression and Sex Characteristics Act: Public Consultation 641 Ibid. 642 Ibid. 643 Ibid. 644 Falzon, A Proposed Gender Identity Act for Malta
135 national and international institutions, as well as individuals. Finally, all these submissions were taken into account to draft the final bill.645
The original proposal for the bill does elucidate the reasons for the amendments it suggests. It starts by setting the context for this bill. The LGBTI Consultative Council insists upon the difference between sex and gender in human rights discourse, notably in B. v. France646, and, citing studies by LGBTQI+ organisations and the European Parliament, stresses that getting one’s gender legally recognised is generally accompanied by systematic human rights violations647. The bill proposal also mentions the prohibition of discrimination based in gender identity contained in EU directives and judgments.648 It explicitly draws heavy inspiration from the Yogyakarta Principles and their impact on the UN, the EU, and several states. 649 Lastly, it mentions ECtHR judgments as well as Maltese domestic judgments establishing the right to gender recognition.650
The LGBTI Consultative Council then goes on to outline the issues with the 2004 Maltese Gender Identity Act. First, it criticises the high cost and intrusiveness of court procedures. These require that the applicant has undergone a complete medical transition, including sex reassignment surgery, and that the applicant has submitted to a medical examination to confirm this. Beyond stating that this could violate Article 8, the proposal does not cite any sources regarding this aspect. Since medical transition is not covered by health insurance or social security, those costs combined with the costs of court procedures are truly prohibitive.651
The second issue concerns the requirement that the applicant be unmarried, which raises serious questions regarding the right to marry. The Council states that “[t]he presumption by a state that two spouses, one of whom is a transgender person, are unhappy and unwilling to continue their life together, and therefore the consequential
645 Government of Malta, Gender Identity, Gender Expression and Sex Characteristics Act: Submissions Report (2015) 646 Falzon, A Proposed Gender Identity Act for Malta, p.10 647 Ibid., p.10 648 Ibid., p.11 649 Ibid., p.11-12 650 Ibid., p.12 651 Ibid., p.20
136 presumption of their consent to have their marriage annulled is highly questionable.”652 In this regard, the Council cites the judgment of the German Constitutional Court condemning such a requirement. 653 Regarding the concern that removing such a requirement would de facto authorise same-gender marriage, the Council points to an Austrian judgment allowing a trans* women to remain married to her wife. 654 Furthermore, the Council argues that such a mandatory annulment could have an adverse effect on the best interests of the children.655
Thirdly, the Council insists heavily on the requirement that the applicant be a post-operative transsexual person. Given that not all trans* persons desire a medical transition, it states that “[i]t is therefore incorrect for a state to presume that all transgender persons are able and willing to undergo the intervention, and inappropriate to base gender recognition procedures on such an incorrect presumption.”656 It looks to the practice of other EU states in this regard as well as to ECtHR judgments on coerced medical interventions, positing that such requirements of sex reassignment surgery could raise issues under Article 8 ECHR.657 Citing the Council of Europe Commissioner for Human Rights and the German and Austrian Constitutional Courts, the Council concludes that such a distinction between pre-operative/non-operative and post- operative trans* persons is not justified, and that this requirement should therefore be eliminated.658
Lastly, the Council recommends that the gender recognition procedure must remain confidential, in accordance with the right to privacy under Article 8 ECHR. To this effect, it refers to a Maltese Constitutional judgment.659 The Council also stresses that gender recognition must have the legal effect of actually recognising a trans* person
652 Ibid., p.23 653 Ibid., p.23 654 Ibid., p.23 655 Ibid., p.23 656 Ibid., p.27 657 Ibid., p.27 658 Ibid., p.29 659 Ibid., p.32
137 as their gender and treating them as such in law, notably regarding the right to marry, as provided for in Goodwin by the ECtHR.660
Following this suggested bill, the Maltese government read through no fewer than twenty-five submissions during the consultative process. Notable submissions include those by ILGA-Europe, Stop Trans Pathologisation, Transgender Europe, Organisation Intersex International, UNHCR Malta and Council of Europe Sexual Orientation and Gender identity Unit.661 From these submissions, the government found that most focused on the law’s objective, the lack of requirements for surgical, medical, psychological, hormonal or any other treatment, an easier procedure to changing one’s gender identity on legal documents, inclusion of minors/children, education/schools, and inclusion of sex characteristics in the law.662
Consequently, the finalised GIGESC Act confirms the right to gender recognition based on self-determination, without needing to comply with any abusive requirements. Notably, the law stresses that this right is provided without any prejudice to “a person’s rights, relationship and obligations arising out of parenthood or marriage”663, as well as without “proof of a surgical procedure for total or partial genital reassignment, hormonal therapies or any other psychiatric, psychological or medical treatment to make use of the right to gender identity.”664 No diagnosis or “real life experience” is required, and the procedure must remain confidential.665 Furthermore, gender recognition is accessible to trans* minors, through a Court procedure. This does always require the consent of the minor’s guardians, and should have as paramount consideration “the best interests of the child as expressed in the Convention on the Rights of the Child” as well as “the views of the minor having regard to the minor’s age and maturity.”666 The GIGESC also explicitly forbids non-consensual surgeries on intersex minors 667 and contains a provision
660 Ibid., p.35 661 Government of Malta, Gender Identity, Gender Expression and Sex Characteristics Act: Submissions Report, see also: https://meae.gov.mt/en/Public_Consultations/MSDC/Pages/Consultations/GIGESC.aspx 662 Ibid., p.7 663 Art. 3(2) Gender Identity, Gender Expression And Sex Characteristics Act of 14 April 2015 (Malta) 664 Art. 3(4) ibid. 665 Art. 11-12 ibid. 666 Art. 7 ibid. 667 Art. 14 ibid.
138 granting gender recognition to recognised refugees.668 Since 2017, gender recognition in Malta has included non-binary persons: “X” markers are possible on IDs.669 Birth certificates, however, can only be marked as “male” or “female”, but they have few gendered consequences in Maltese law. The possibility to add an “X” marker to an ID has made Malta the only state in Europe to allow gender recognition for non-binary persons. These provisions make the Maltese GIGESC one of the most progressive gender recognition laws in the world, in compliance with practically all of the international recommendations concerning the human rights of trans* persons. The only obstacle to complete self-determination is the fact that one can only amend one’s legal gender one time, except through a judicial procedure.670
iii. Ireland
Only a few days after the Maltese gender recognition law was passed, Ireland followed suit with its Gender Recognition Act. This legislative change was brought about in major part through Dr. Lydia Foy, a trans* woman who waged a tireless legal fight against Irish courts in order to get her gender legally recognised. After five years of legal procedures, a High Court judge urged the government to pass legislation concerning gender recognition. Only a few days later, the ECtHR ruled on Goodwin, confirming the Irish judgment. Five years later, no change had been enacted, and the High Court once more called upon the government to remedy this. In 2010, finally, the legislative process began, culminating in the Gender Recognition Act in July 2015. 671
It is important to note that this Gender Recognition Act, as originally adopted, did not actually eliminate all abusive requirements for gender recognition. Indeed, the statutory declaration upon the basis of which gender recognition is granted still contained an obligatory declaration that the person requesting gender recognition “is not married or a civil partner672”. However, a few months later, in October 2015, Ireland legalised same-gender marriage. This Marriage Act also amended the Gender
668 Art. 4(8) ibid. 669 Holzer and ILGA-Europe, Non-Binary Gender Registration Models in Europe: Report on third gender marker or no gender marker options, p.19 670 Art. 8.2 Gender Identity, Gender Expression And Sex Characteristics Act of 14 April 2015 (Malta) 671 Transgender Equality Network Ireland, ‘Dr. Lydia Foy's Case’
139 Recognition Act, deleting the section concerning the civil status of the applicant.673 The statutory declaration now no longer concerns any provision of the sort, which puts the Irish Gender Recognition Act in line with international standards of self-determination.
The first step in the legislative process was the report by the Gender Recognition Advisory Group, created by the Irish Minister for Social Protection. 674 The recommendations of this advisory group did not truly correspond with international recommendations regarding requirements for gender recognition. Indeed, the Advisory Group recommends the following requirements for gender recognition:
“1. Residency/Irish Birth Registration. Applications confined to persons whose births are registered in Ireland, persons included on the Foreign Births Register and persons who are ordinarily resident in Ireland.
2. Minimum Age. Minimum age limit of 18 years.
3. Marital and Civil Partnership Status. Persons in an existing valid marriage or civil partnership excluded from the scheme.
4. Permanent Transition. A clear and settled intention to live in the changed gender for the remainder of his or her life.
5. Living in the Role. A minimum 2-year period of living full-time in the changed gender.
6. Medical Criteria. One of the following:
• a formal diagnosis of Gender Identity Disorder (GID) plus relevant supporting medical evidence, or • medical evidence that the applicant has undergone gender reassignment surgery, or • evidence of the recognition of changed gender in another jurisdiction.”675
673 Irish Statute Book:, ‘Marriage Act 2015: Amendment of Gender Recognition Act 2015’ (29th October 2015)
140 The recommended procedure itself was also not in line with trans* persons’ self- determination: it involved documentary evidence, a possibility for oral hearings, and granting of the gender recognition certificate by a panel of three persons.676
The Advisory Group notably based this conclusion on a variety of sources on the classification of trans* identity as an illness in the ICD-10 and the DSM-IV.677 The drafting of this report also included a public consultation process, in which fourteen organisations and twenty-six individuals were invited to submit their considerations.678 The majority of the submissions criticised the rigidity of the age restrictions, the requirement that the applicant be unmarried, and the condition of medical treatment.679 The Advisory Group also performed a comparative law analysis between thirteen EU Member States, finding that more recent gender recognition laws tend to be less restrictive than older ones.680 The ECtHR’s jurisprudence was also taken into account, focusing mainly on Goodwin and Parry v. UK regarding the “international trend towards acceptance of transsexuals” and the right to marry of trans* persons.681 Lastly, the Advisory Group considered international documents, more specifically the Yogyakarta Principles, the Council of Europe’s Commissioner for Human Rights’ “Human Rights and Gender Identity” and CMRec(2010)5, which all insist upon the need to abolish abusive requirements for gender recognition.682
The first draft of the Gender Recognition Bill – as it was then named – consequently includes a plethora of abusive requirements for gender recognition, in accordance with the Advisory Group’s recommendations.683 The Report of the Irish Joint Committee on Education and Social Protection 684 , however, rectified this. The Committee, like the Advisory Group, organised a public consultation process. Unlike the Advisory Group, however, the Committee did take the submissions it received into
676 Ibid., p.4 677 Ibid., p.8-9 678 Ibid., p.13 679 Ibid., p.15-17 680 Ibid., p.21-22 681 Ibid., p.22-26 682 Ibid., p.26 683 Gender Recognition Bill 2014: As Initiated (Ireland) 684 Joint Committee on Education and Social Protection, Report on the General Scheme of a Gender Recognition Bill
141 account. Eight of these submissions were written by groups; three by individuals. The former included submissions by Trans Equality Network Ireland and Amnesty International Ireland, as well as by the Irish Equality Authority and the Ombudsman for Children’s Office. The latter included submissions by medical doctors specialised in trans* care.685
The Committee referred to a variety of sources cited in these submissions, specifically: the Argentinian law686, Thomas Hammarberg’s report687, the Austrian and German constitutional judgments688, and the European Parliament’s policy paper on “Transgender Persons’ Rights in the EU Member States”689. Based on these submissions and these sources, the Committee makes the following recommendations:
• Regarding the age criterion:
“The age at which a person is entitled to apply for a Gender Recognition Certificate should be reduced from 18 years to 16 years. Measures should also be put-in-place to address the day-to-day concerns of transgender people under the age of 16 years.”
• Regarding the single criterion:
“The Committee acknowledges that there is a difference of opinion between the Attorney General and others on the legal issues regarding gender recognition for persons who are married or in a civil partnership. However, the Committee believes that the fact that a person is in an existing marriage or a civil partnership should not prevent him or her from qualifying for a Gender Recognition Certificate, and urges the Minister to revisit this issue.”
• Regarding evidence of transition
“The Committee recommends that the current wording in the Bill with respect to evidence of transition should be reconsidered to address the concerns raised at the hearings that people not be stigmatised as a result of the requirements in this regard.”690
685 Ibid., p.23-36 686 Ibid., p.25 687 Ibid., p.26 688 Ibid., p.26&29 689 Ibid., p.28 690 Ibid., p.37
142 The Irish legislator clearly held with these recommendations, except – as mentioned above – the one regarding civil status. Since its Amendment through the Marriage Act, the final Gender Recognition Act only requires a statutory declaration declaring that the applicant “has a settled and solemn intention of living in the preferred gender for the rest of his or her life, understands the consequences of the application, and makes the application of his or her free will.”691 Furthermore, the procedure is free692 and confidential693. It is possible to “revoke” gender recognition, but the Minister has full control over this revocation.694 Since the procedure for revocation is very similar to the procedure for gender recognition, however, there is a possibility, though far from a certainty, that fluid gender identities would be accommodated in practice.695
Gender recognition is possible for trans* minors between 16 and 18 years of age, but the procedure is much more complex and intrusive.696 It requires a court order697, subject to a certificate issued by their primary medical practitioner and confirmed by a psychiatrist or endocrinologist, ensuring that:
“(A) the child has attained a sufficient degree of maturity to make the decision to apply for gender recognition,
(B) the child is aware of, has considered and fully understands the consequences of that decision,
(C) the child’s decision is freely and independently made without duress or undue influence from another person, and
(D) the child has transitioned or is transitioning into his or her preferred gender.”698
The consent of the minor’s legal guardian is also required699, unless it can be shown that they are not responding to a request for consent or that contacting them
691 Art. 10(f)(b) Gender Recognition Act of July 22 2015 (Ireland) 692 Art. 8(2) ibid. 693 Art. 30(C) ibid. 694 Art. 15 ibid. 695 Art 15 j. 8 ibid. 696 Art. 12 ibid. 697 Art. 12(1) ibid. 698 Art. 12(4)(b) ibid. 699 Art. 12(4)(a) ibid.
143 would go against the child’s best interests700. In general, the Act provides that “[t]he court shall not make an order under this section unless satisfied that it is in the best interest of the child.”701
A review of the Gender Recognition Act is currently in progress, which would facilitate gender recognition for trans* minors – even those younger than 16 – as well as extend gender recognition to non-binary persons.702 Such revisions would undoubtedly have extremely positive consequences for trans* and non-binary persons, and would make the Irish Gender Recognition Act as progressive as its Argentinian and Maltese counterparts.
iv. Norway
In 2016, Norway passed its own Legal Gender Amendment Act. The Norwegian procedure requires no diagnosis, no medical interventions – and certainly no sterilisation – and no real life experience or waiting times.703 Same-gender marriage and parental rights have been provided for in Norwegian law since 2009704; therefore, this law contains no requirements that could impact civil status or parental rights. The law itself does mention that “[t]he birth gender should still be assumed if it is necessary for establishing parenthood and custody under the Children Act. A person who amends their legal gender, retains the rights and obligations of fatherhood, motherhood or comaternity.”705 This means that a trans* person’s parental status may be at odds with their gender. The only exception to this rule is trans* women who have a child with a woman: they can be designated as “co-mother” in accordance with their gender identity.706
700 Art. 12(5) ibid. 701 Art. 12(6) ibid. 702 The Journal Ireland, ‘Children would be able to get full gender recognition under new proposals’ (18 July 2018)
144 Most groundbreakingly, Norway makes it possible for trans* minors between 16 and 18 years of age to obtain gender recognition purely on the basis of self- determination, following the exact same procedure as trans* adults.707 Trans* children between 6 and 16 years old may be granted gender recognition if the application is submitted by their legal guardian. If one of the child’s parents is opposed to the child’s identity, their legal gender may still be amended if this is considered to be in their best interest. The best interests of the child are also represented in the provision that “[c]hildren who are capable of forming their own views on the matter should be informed and given an opportunity to express their views before the application is submitted.”708 Even children under 6 years of age may be granted gender recognition, but this is only possible for children with a congenital somatic sex development uncertainty confirmed by a healthcare professional709; in other words, gender recognition under 6 years old is only possible for intersex children.
The Norwegian Legal Gender Amendment Act is based on a very extensive report, drafted by an expert group appointed by the Norwegian Health Directorate, as requested by the Ministry of Health.710 This report was based in turn on the submissions of an array of organisations during a consultative process.711 It was summarised into a recommendation to the Parliament712 and into the commentary accompanying the eventual legislative proposal: Prop 74 L713. It seems logical to assume that the sources cited in those two reports are the ones that were the most influential in the drafting of the Legal Gender Amendment Act. Consequently, we can consider that the Norwegian legislator was influenced by quite a wide variety of sources.
Similarly to the Danish Working Group, the Norwegian Expert Group considers three possible gender recognition models: the assessment model, the declarative model
707 §4 ibid.; §4 Lovvedtak 71 (2015–2016) (Første gangs behandling av lovvedtak) (Norway) 708 §4 Prop 74 L (2015-2016) Proposition to the Storting (proposal for a legislative decision) on The Legal Gender Amendment Act (Unofficial Transation); §4 Lovvedtak 71 (2015–2016) (Første gangs behandling av lovvedtak) (Norway) 709 §4 Prop 74 L (2015-2016) Proposition to the Storting (proposal for a legislative decision) on The Legal Gender Amendment Act (Unofficial Transation); §4 Lovvedtak 71 (2015–2016) (Første gangs behandling av lovvedtak) (Norway) 710 Helsedirektoratet, Rett til rett kjønn - helse til alle kjønn 711 Ibid., p.vi 712 Innstilling 315 L til Stortinget fra helse- og omsorgskomiteen (2015-2016) 713 Helse - og omsorgdepartement, Prop. 74 L (2015–2016) Proposisjon til Stortinget (forslag til lovvedtak) Lov om endring av juridisk kjønn
145 and the diagnostic model.714 It selects those models because it is of the opinion that gender recognition should be granted without a condition of sterilisation or other medical procedures.715 Unlike Denmark, however, Norway decides against a reflection period, stating that the Expert Group “has reason to believe that most applications for the change of legal gender will be well-considered and thoroughly thought out. For people who have already spent time reflecting on their choice to change their legal gender, it may be perceived as mistrust, suspicion and an unnecessary obstacle to be imposed a further wait after the application is submitted.”716
Regarding minors’ access to gender recognition, the report notes that the majority of the respondent organisations were in favour of extending the right to gender recognition to minors.717 Considering the Convention on the Rights of the Child, the Expert Group is of the opinion that it is in the best interests of the child to listen to them in conjunction with their parents to determine the enactment of their right to gender recognition. 718
Regarding mandatory sterilisation, medical interventions and diagnosis, the Norwegian Anti-Discrimination Ombudsman states that these are discriminatory and violate the anti-discrimination law.719 The Expert Group confirms this by referring to CMRec(2010)5 and the Yogyakarta Principles, noting that even though these documents are not legally binding, they are cited increasingly often in ECtHR judgments concerning trans* persons.720 Furthermore, these requirements have been abolished in a number of countries, including Sweden, Denmark, the Netherlands and New Zealand.721
The Expert Group particularly insists on the need to eliminate the sterilisation requirement.722 It mentions that Goodwin did allow States a wide margin of appreciation regarding the requirements for gender recognition, which casts doubt on whether such
714 Innstilling 315 L til Stortinget fra helse- og omsorgskomiteen (2015-2016), p.1 715 Ibid., p.1 716 Ibid., p.2 717 Ibid., p.2-3 718 Ibid., p.2-3 719 Ibid., p.5 720 Ibid., p.5 721 Ibid., p.5 722 Ibid., p.7
146 a requirement would be condemned under Articles 8 and 14 ECHR.723 However, the Expert Group notes that Denmark, Sweden, the Netherlands and New Zealand have already removed this requirement from their national legislation, and reminds the Ministry that its purpose with this law is to go further than most of Norway’s neighbouring countries.724
Lastly, the Expert Group stresses that – like in Denmark – the vast majority of the respondent organisations were very positive about the elimination of medical requirements, the refusal to implement a waiting period, and the possibility for trans* minors to legally amend their gender.725 These organisations included, among others, the Equality and Discrimination Ombudsman, the Biotechnology Council, the Association of Transgender People in Norway, the Norwegian Directorate of Health, the Norwegian Medical Association, the Psychologists' Association, Amnesty International, the Norwegian Bar Association, and Save the Children.726
From the actual legislative proposal, Prop 74 L itself727, it once more becomes clear that certain sources of international law are considered very important in the drafting of the new law. The first of those sources are Denmark’s obligations under Article 8 and 14 ECHR, particularly as elucidated in ECtHR jurisprudence concerning trans* persons, and even more specifically in Goodwin.728 A second very weighty consideration is the legislation on gender recognition in other countries, in particular in neighbouring/European countries.729 Thirdly, we note that the LGBT Recommendation of the Committee of Ministers of the Council of Europe (CMRec(2010)5) is given particular weight in the legislative process; indeed, a whole section of the legislative proposal is devoted to it. 730 Within that section, the Yogyakarta Principles are mentioned as well.731
723 Ibid., p.7 724 Ibid., p.7 725 Ibid., p.8 726 Ibid., p.8-9 727 Helse - og omsorgdepartement, Prop. 74 L (2015–2016) Proposisjon til Stortinget (forslag til lovvedtak) Lov om endring av juridisk kjønn 728 Ibid., p.10-11 729 Ibid., p.12-13 730 Ibid., p.14 731 Ibid., p.14
147 All these considerations have led Norway to draft a very progressive law on gender recognition. One provision even sets it apart from the other States discussed previously: the comments on the law explicitly state that there is no set limit on the amount of times one may amend one’s legal gender.732 This clearly recognises self- determination for persons with a fluid experience of gender. The only limit in this regard is the fact that one may only change one’s name once every ten years.733 There is, of course, still the possibility for gender-fluid persons to adopt a gender-neutral name. The only regrettable aspect of the Legal Gender Amendment Act is that it does not provide for gender recognition for non-binary persons. However, change seems to be in the works in that regard.734 This would extend the unquestionably positive consequences of this law to non-binary persons.
v. Belgium
The new Belgian Gender Recognition Law735, implemented at the start of 2018, was the first in 2018’s legislative boom concerning gender recognition. The new Belgian law technically abolishes all abusive requirements for gender recognition; nonetheless, it seems to be based more on “self-determination within limits” than on true self- determination. Indeed, gender recognition is dependent upon a declaration that one has been convinced of one’s gender identity “for a considerable amount of time736”, upon advice by the public prosecutor737 , and upon having been informed about trans* identities738. Most damnably, one must respect a waiting period of three to six months739 – though, as this is not officially a requirement of “real life experience”, Belgium still falls within the parameters for this study. Furthermore, it is only possible to amend one’s
732 Prop 74 L (2015-2016) Proposition to the Storting (proposal for a legislative decision) on The Legal Gender Amendment Act (Unofficial Transation), comment on §2 733 Ibid., §9(2) 734 The Independent, ‘Norway could introduce a third gender option on passports for people who identify neither male nor female’ (8 February 2017)
148 legal gender once, save exceptional circumstances, which must be evaluated in a judicial procedure.740
The original draft law is accompanied by extensive commentary, which enlightens us about the reasons for the Belgian government’s decisions. The array of sources cited is rather impressive, and shows Belgium’s initial commitment to complying with the highest human rights standards regarding trans* rights.
The comments start with an analysis of the international evolution in the human rights field, beginning with the Yogyakarta Principles. The Belgian government grants particular importance to Principles 3 and 18, regarding mandatory sterilisation and other medical procedures.741 These principles are confirmed by the report of the UN Special Rapporteur on Torture.742 The comments then cite a wide array of Council of Europe documents: Hammarberg’s report on human rights and gender identity, three Parliamentary Resolutions (Resolutions 1728, 1945, and 2048), as well as CMRec(2010)5. The last document cited by the government is the European Parliament’s resolution on sexual orientation and gender identity, as adopted in the UN Human Rights Council.743
The comments then turn to the jurisprudence of the ECtHR, specifically to Goodwin and Y.Y. v. Turkey. The government stresses that since Goodwin, States have an obligation to recognise post-operative transsexual persons’ gender, and that in Y.Y. v. Turkey, the Court ruled that requiring sterilisation as a condition for sex reassignment surgery violated Article 8. 744 Regarding medical requirements in general, the government cites Paul Borghs’ comparative law analysis for ILGA-Europe and the Belgian Institute for Equality of Women and Men.745
The Belgian government then proceeds to compare recent legislative evolutions in other countries. It notes that medical requirements have been abolished in Argentina, Malta, Ireland, Sweden, Denmark, the Netherlands, Spain and Norway, as well as by
740 Art. 3§10 ibid. 741 Belgian Chamber of Representatives, Wetsontwerp tot hervorming van regelingen inzake transgenders wat de vermelding van een aanpassing van de registratie van het geslacht in de akten van de burgerlijke stand en de gevolgen hiervan betreft, p.4 742 Ibid., p.5 743 Ibid., p.5 744 Ibid., p.6 745 Ibid., p.7
149 Constitutional Courts in Germany and Austria.746 Regarding other requirements, the Government notes that Denmark requires a six-months “reflection period” and that Iceland, Sweden, Germany and the UK still demand “real life experience”.747 The same countries require a true intention to keep living in the role of the amended gender.748 Furthermore, several countries still make gender recognition conditional on third party involvement, often through a diagnosis of gender dysphoria (Spain, Portugal, Iceland, UK, the Netherlands).749
Before presenting the draft law to the Parliament, the Belgian government requested the advice of the Council of State regarding the suggested provisions.750 The Council of State mainly questioned three aspects of the draft law: the mandatory information provided by trans* organisations, the risk of misuse of the procedure, and the consequences for family law.751 The draft of the Belgian law provided for an obligation on the part of the person who wants to amend their legal gender to be informed about trans* identities by a trans* organisation, which this organisation had to attest by means of a certificate.752 The Council of State stressed the need for those organisations to be officially recognised by the State, and asked the Government to provide for such official recognition. Regarding the “risk of misuse”, the Council of State posited that such a concern stands in opposition to the stated purpose of the law, which is to allow gender recognition based on self-determination. It recommended that the law be more consistent in this regard.753 Lastly, concerning the consequences for family law, the Council of State insisted upon the fact that it is not possible for two persons to have the legal status of father of the same child without proceeding to adoption in Belgian law. Consequently, it is also not possible for a trans* man who births a child and his male partner to both be the legal fathers of their child. The original draft law did not provide
746 Ibid., p.7 747 Ibid., p.7 748 Ibid., p.8 749 Ibid., p.8 750 Raad Van State Afdeling Wetgeving, Advies over een voorontwerp van wet tot hervorming van regelingen inzake transgenders wat de vermelding van een wijziging van de registratie van het geslacht in de akten van de burgerlijke stand en de gevolgen hiervan betreft (60690/2, 2017), 751 Ibid., p.10-15 752 Ibid., p.10 753 Ibid., p.11
150 for this distinction between trans* women – who can become “co-mother” of their child without adopting the child – and trans* men.754
Following the advice of the Council of State, the draft law was submitted to Parliamentarians, who were invited to comment upon its provisions. Four times over755, the majority of the submissions by Parliamentarians insist upon two main aspects of the draft law: the obligation to consult a trans* organisation, and the conditions for gender recognition for trans* minors.
Regarding the obligatory information to be provided by trans* organisations and to be confirmed by a certificate, the Parliamentarians stress that these organisations themselves are opposed to such a condition. Firstly, they do not have the resources, money or personnel to accept such an official responsibility. Secondly, they are of the opinion that such an obligation contradicts trans* persons’ self-determination, which these organisations find very important.756
Regarding gender recognition for trans* minors, the Parliamentarians are rather strongly opposed to the fact that trans* minors between sixteen and eighteen years of age must obtain a certificate by a psychiatrist that they are indeed trans*.757 Due to this criticism, this provision was changed into an obligation to obtain a certificate that they are mature enough to truly be aware of their gender, but this too was criticised by the Parliamentarians. Pointing to the fact that minors over sixteen are allowed to make their own decisions unimpeded in healthcare situations, they deplore the fact that this right is not extended to gender recognition.758 Furthermore, they state that if a certificate of maturity is necessary, it should be possible for it to be provided by any healthcare professional, and not only by a psychiatrist.759
754 Ibid., p.15 755 Belgian Chamber of Representatives, Parl. Doc. 2403/002 (2 May 2017); Belgian Chamber of Representatives, Parl. Doc. 2403/003 (9 May 2017); Belgian Chamber of Representatives, Parl. Doc. 2403/006 (23 May 2017); Belgian Chamber of Representatives Parl. Doc. 2403/007 (24 May 2017) 756 Belgian Chamber of Representatives, Parl. Doc. 2403/002, p.2,6,9 757 Ibid., p.2,7,10; Belgian Chamber of Representatives, Parl. Doc. 2403/003, p.3-7-10; Belgian Chamber of Representatives, Parl. Doc. 2403/006; Belgian Chamber of Representatives Parl. Doc. 2403/007, p.2-3 758 Belgian Chamber of Representatives, Parl. Doc. 2403/006; Belgian Chamber of Representatives, Parl. Doc. 2403/003; p.2-3 759 Belgian Chamber of Representatives, Parl. Doc. 2403/003, p.3,10; Belgian Chamber of Representatives, Parl. Doc. 2403/006, p.3-4; Belgian Chamber of Representatives Parl. Doc. 2403/007, p.2-3
151 The Parliament’s Commission for Justice also reported on this draft law, once more citing the Yogyakarta Principles, the Council of Europe documents, the ECtHR’s jurisprudence and developments in other countries.760 Furthermore, the Commission cites a study commissioned by the Institute for the Equality of Women and Men on “Living as transgender in Belgium”, which found that medical requirements have a high negative impact on trans* persons. This is confirmed by trans* organisations throughout the country.761 Later, the report cites the European Social Charter762 as well as the recommendations of WPATH763.
The Commission then considers the three aspects in the draft law that contradict trans* persons’ self-determination: the obligatory information certificate, the certificate by a psychiatrist for trans* minors between sixteen and eighteen, and the inability for trans* minors between twelve and sixteen to amend any gender marker but their name. For all three of those, the Commission recommends an amendment in the draft law.764
Several trans* organisations are also cited in this report, notably Arc-En-Ciel Wallonie, Çavaria, RainbowHouse Brussels and Genres Pluriels. The expert team on children and gender from Ghent University Hospital was also heard. 765 All these organisations take issue with the obligation for trans* organisations to provide trans* persons with an information certificate, since it contradicts self-determination and turns trans* organisations into gatekeepers. They also criticise the fact that the provisions about “misuse” in the law convey a stereotypical view of trans* persons, and that the inability to amend one’s gender more than once disregards gender-fluidity. The obligatory certificate for trans* minors between 16 and 18, furthermore, still pathologises and medicalises trans* identities, which goes against international human rights standards. 766 RainbowHouse Brussels, Çavaria, Arc-en-Ciel Wallonie, Genres Pluriels, Amnesty International, the League for Human Rights and the ULB Equality Law
760 Belgian Chamber of Representatives, Parl. Doc. 2403/004: Report by the Commission for Justice, p.4-5 761 Ibid., p.5 762 Ibid., p.44 763 Ibid., p.40 764 Ibid., p.5-9 765 Ibid., p.33-59 766 Ibid., p.33-59
152 Clinic all request a more inclusive and progressive legislation, especially one that explicitly includes and protects non-binary and intersex persons.767
Despite this criticism, the definitive Belgian law has kept most of its controversial articles. Gender recognition still requires a waiting time of three to six months768, during which the prosecutor-general can deny the person gender recognition. 769 This competence of the Prosecutor-General has already caused problems for Belgian trans* persons, as Belgian Prosecutors-General have abused this power.770 Amending one’s gender is only possible once, save in exceptional circumstances, which require judicial review and do not include gender-fluidity.771 Minors younger than sixteen can still not obtain gender recognition, and minors older than sixteen still need a certificate of maturity provided by a psychiatrist.772 They also need the consent of their legal guardians, and if this is impossible to obtain, they must turn to a tribunal to be assigned a guardian ad hoc.773
The obligatory information certificate provided by trans* organisations, however, has been removed from the final law. It has been replaced by an official information brochure that must be handed to the trans* person by the registrar when they make their first declaration for gender recognition. This brochure contains information about trans* organisations.774
Furthermore, all explicitly medical requirements have been removed from the Belgian procedure for gender recognition. No medical treatment is necessary; neither is any diagnosis or any explicit “real life experience” – the Belgian situation in that sense is very similar to the Danish one. Since same-gender marriage and parental rights have
767 Ibid., p.44 768 Art. 3§5 Wet tot hervorming van regelingen inzake transgenders wat de vermelding van een aanpassing van de registratie van het geslacht in de akten van de burgerlijke stand en de gevolgen hiervan betreft (Belgium) 769 Art. 3§4 ibid. 770 Zizo, ‘Toepassing Transgenderwet Loopt Spaak In Wallonië’ (2 March 2018)
153 been legal in Belgium for over a decade775, conditions concerning family law are also absent from the law – save, of course, for the fact that a trans* man cannot be the father of his child at the same time as his male partner without resorting to adoption. This discrimination, however, stems more from a regrettable discrimination in Belgian law against male same-gender couples than against trans* persons in se. Furthermore, the Belgian procedure is entirely confidential.776 There is currently a case pending before the Belgian Constitutional Court, hoping to extend the provisions of this law to non- binary persons and to make it possible to amend one’s legal gender more than once, in order to recognise gender-fluidity.777
vi. Portugal
Portugal was the second of three countries to pass a gender recognition law in 2018.778 The law was based on two projects of law, respectively by the Portuguese Left Bloc (BE)779 and the Persons-Animals-Nature Party (PAN)780, and on a draft law by the government781.
BE’s project of law starts by making mention of the WHO’s intention to remove gender identity from the eleventh edition of the International Classification of Diseases.782 BE then insists upon the principle of equality and non-discrimination within intersectional human rights law, as enshrined in Articles 1 and 2 UDHR and Article 14 ECHR.783 Specifically regarding trans* persons, BE cites the Yogyakarta Principles as well as Resolution 17/19 of the UN Human Rights Council, which condemns
775 Brussels Express, ‘Fun Fact: Belgium was the world’s second country to legalise same-sex marriage’ (15 February 2018)
154 discrimination on the grounds of gender identity.784 Within the Council of Europe, it refers to the report of the Commissioner for Human Rights, CMRec(2010)5, and Resolution 2048 of the Parliamentary Assembly, stressing that all three of these documents recommend that states abolish abusive requirements for gender recognition, especially medical and diagnostic requirements.785 Within the EU, BE points to Article 21 of the Charter of Fundamental Rights, which prohibits discrimination, as well as several directives which explicitly prohibit the discrimination of trans* persons: Directive 2004/113/EC of 13 December 2004 on access to and supply of goods and services, Directive 2006/54/EC of 5 July 2006 on employment and social security, Directive 2011/95/EU of 13 December 2011 on asylum, and Directive 2012/29/EU of 25 October 2012 on the status of the victim.786 It states that the European Parliament and the European Commission have also worked towards LGBTQI+ inclusion.787
BE then goes on to demonstrate how this law would fit within Portugal’s larger legislative context, which has already made mention of the prohibition of discrimination of trans* persons788. It also stresses the contributions of trans* and intersex activists789, and ends by referring to Argentina, Denmark, Malta, Ireland and Norway, which have already amended their legislation accordingly.790 Consequently, BE wishes to eliminate all requirements for gender recognition and to extend gender recognition to foreigners living in Portugal as well as to minors older than sixteen.791
PAN’s project of law first considers the previous Portuguese Gender Identity Law, adopted in 2011. This law did eliminate all medical conditions for gender recognition, but it also restricted gender recognition to adults and required a diagnosis of gender identity disorder. 792 PAN states that this law has been called into question by Portuguese trans* activists, and that these very problems were condemned in a Portuguese study by the ISCTE – Instituto Universitário de Lisboa, in partnership with
784 Ibid., p.3 785 Ibid., p.3 786 Ibid., p.4 787 Ibid., p.4 788 Ibid., p.4-5 789 Ibid., p.5 790 Ibid., p.5 791 Ibid., p.6 792 Pessoas-Animais-Natureza, Projecto-Lei n.º 317/XIII/2ª, p.1-2
155 ILGA Portugal and The Norwegian LGBT Association. The study was funded by the EEA Grants and managed by the Commission for Citizenship and Gender Equality (IGC).793 This study also found that requiring a diagnosis of gender identity disorder allowed medical professionals to only deliver such a diagnosis after the person had completed certain steps of a medical transition, which went against the spirit of the law and made trans* persons have to wait longer before they could obtain gender recognition. This waiting time was also exacerbated by the cost of the procedure: 200 euros.794
PAN states that such conclusions have also been come to outside of Portugal. It cites Resolution 2048 of the Parliamentary Assembly of the Council of Europe and points out that laws based on self-determination have been adopted in Argentina, Malta and Norway. 795 Consequently, PAN wants to eliminate all requirements for gender recognition, including age limits and diagnostic conditions.796
The government’s draft law, finally, comes to very similar conclusions. It stresses the need to amend the 2011 gender recognition law by referring to the European Parliament's resolution of 28 September 2011 on human rights, sexual orientation and gender identity in the United Nations, which urged the WHO to remove gender identity disorders from ICD-11.797 Within this context of depathologisation of trans* identities, the 2011 law is no longer up to date.798 The government also refers to Hammarberg’s report as well as to Resolution 2048.799
Regarding children, the government states that their gender identity should be recognised in accordance with their progressive autonomy and best interests in accordance with the Convention on the Rights of the Child800, and that non-consensual surgeries on intersex children should be prohibited801. In this regard, the government states that gender recognition procedures are also meant to protect intersex persons,
793 Ibid., p.2-3 794 Ibid., p.3-4 795 Ibid., p.4 796 Ibid., p.1, p.4-10 797 Presidência Do Conselho De Ministros, Proposta de Lei n.º 75/XIII, p.1-2 798 Ibid., p.2 799 Ibid., p.2 800 Ibid., p.3 801 Ibid., p.3
156 but states that it does not intend to create a third gender option.802 The government indeed considers that this would risk stigmatising intersex children and consequently reinforce the pressure to carry out “normalising” treatments.803
Originally, two amendments to this law were proposed. The Socialist Party asked that the law be explicitly inclusive of intersex persons804, and the law was amended accordingly805. The Social-Democrat Party requested an amendment that reintroduced the requirement of a diagnosis of gender dysphoria 806 – this amendment was, fortunately, refused807.
The most important amendment to the law, however, was passed after the law had already been voted. Indeed, after the law had been signed on 13 April 2018, the Portuguese President Marcelo Rebelo de Sousa vetoed the law, refusing to sign it. He expressed concern about the possibility for trans* minors older than 16 to amend their gender rather independently.808 A final amendment was then submitted, providing for the need for parental consent as well as a certificate made by a doctor or psychologist, attesting the minor’s free will and decision-making capacity.809 The definitive law was passed in early August 2018.810
After this unwelcome change, Portugal’s definitive Gender Identity Law implemented two major changes regarding gender recognition. Firstly, a diagnosis of gender dysphoria is no longer required, and consequently, the arbitrary requirements
802 Ibid., p.4 803 Ibid., p.4 804 ‘Quadro Comparativo Projeto de Lei 242/XIII’ (Parlamento.pt)
157 implemented by doctors have also been removed.811 Secondly, trans* minors older than sixteen are able to obtain gender recognition – albeit with disappointing restrictions – which was not possible before 2018.812 Medical requirements have been abolished in Portugal since 2011813, and same-gender marriage and parental rights have been legal since 2010 and 2016, respectively814; consequently, this law contains no requirements that could impact family life. Portugal also does not require any waiting period before gender recognition is granted. Sadly, the Portuguese law does not extend gender recognition to non-binary persons.
vii. Luxembourg
The third in the list of countries to adopt gender recognition legislation based on self- determination in 2018 was Luxembourg. In the legislative proposal815, the Ministry of Justice states that, since the Luxembourg government has signed the 2015 and 2016 IDAHOT declarations, a new gender recognition law is necessary to ensure the rights of trans* persons.816 One of its purposes is to protect them against discrimination, which makes trans* persons vulnerable to mental health troubles and leads to their exclusion in many domains.817
The Ministry goes on to describe how this new law fits perfectly within Luxembourg’s legislative context, after the laws on same-gender marriage and adoption and the rendering gender-neutral of all national legislation.818 The international context is also of high importance, especially in regard to the international trend towards heightened promotion of trans* persons’ rights and gender recognition, as embodied in several documents such as the Yogyakarta Principles and documents of the Council of Europe, the UN and the EU. Specifically, it cites the Resolution of the European
811 Art. 8 ibid. 812 Art. 7(2), ibid. 813 Pessoas-Animais-Natureza, Projecto-Lei n.º 317/XIII/2ª 814 Take Part, ‘5 Years After Legalizing Gay Marriage, Portugal Will Let Same-Sex Couples Adopt’ (22 November 2015)
158 Parliament of 12 March 2015 on Human Rights and Democracy in the World, CMRec(2010)5 and Resolution 2048 of the Parliamentary Assembly of the Council of Europe.819 The Ministry insist upon the fact that all these documents recommend that states abolish abusive requirements for gender recognition, especially sterilisation.820 It cites Malta, Norway and Argentina as states who have indeed implemented such progressive legislation821 and stresses that such procedures based on self-determination are considered very positive by several scientific studies, notably a German one.822
The Ministry also cites several sources in its commentary on the articles of the legislative proposal. Regarding abolishing sterilisation and other medical requirements, it once more refers to CMRec(2010)5823. Regarding gender recognition for foreigners, the legislative proposal stresses that Resolution 2048 calls for such an inclusion, that the German Constitutional Court has condemned excluding foreigners from gender recognition, and that Belgium included foreigners in its 2007 gender recognition law.824
The legislative proposal is extremely progressive, abolishing all requirements for gender recognition825 and extending administrative gender recognition to minors over five years old, with parental consent826. Even children younger than five can have their gender amended, but their parents must follow a judicial procedure for this to be possible.827 Gender recognition is also, as mentioned above, extended to foreigners living in Luxembourg.828
The government invited several national institutions to submit their considerations regarding this law and its impact on their functioning. The Centre for Equal Treatment applauds the law, insisting on the fact that it had found there was a high need for such a legislative move during the events concerning trans* rights it participated in. The CET finds the law to be in accordance with the recommendations of
819 Ibid., p.8 820 Ibid., p.8 821 Ibid., p.8 822 Ibid., p.8 823 Ibid., p.9 824 Ibid., p.10 825 Art. 1-2 ibid. 826 Art. 3 ibid. 827 Art. 4 ibid. 828 Art. 5 ibid.
159 the UN, the EU and the Council of Europe, as well as with Y.Y. v. Turkey. The CET only regrets that the law does not provide for a third gender option, specifically in order to protect intersex infants and children.829
The Consultative Commission for Human Rights is equally positive, particularly about the legislative proposal’s focus on dejudicialisation, depathologisation and self- determination. The Commission finds that this is in accordance with Article 8 ECHR, particularly after A.P., Garçon et Nicot. Luxembourg also follows other countries with this law: France, Belgium, Denmark, Norway and Malta. Regarding depathologisation, the Commission insists upon the fact that this law will be compatible with the new ICD- 11, which does not consider trans* identities to be illnesses.830
The Prosecutor-General, interestingly, suggests that the best way to avoid discrimination of trans* persons would be to abolish gender registration altogether. This would eliminate any discrimination between binary trans* persons and non-binary or intersex persons. Furthermore, he requests that a solution be found for minors whose parents are not willing to give consent for gender recognition. He recommends a judicial procedure to appoint a legal guardian ad hoc. Lastly, the Prosecutor-General points to the problems of international private law concerning foreigners who have legally amended their gender.831
Intersex and Transgender Luxembourg applauds the new law, making only two suggestions. The first is that future birth certificates do not mention the “mother” and “father” of the child, but rather their “parents”. The second is to provide a solution for trans* minors who cannot obtain parental consent for gender recognition.832
The Council of State, lastly, is less progressive. It wonders whether it would not be better to keep a judicial procedure rather than an administrative one, in order to ensure legal certainty. At the very least, it wishes a state official – a registrar, for
829 Centre Pour L’Égalite De Traitement (Luxembourg), Avis Du Centre Pour L’Égalite De Traitement (Parl Doc 7146/4, 10 July 2017)
830 Commission Consultative Des Droits De L’Homme (Luxembourg), Avis De La Commission Consultative Des Droits De L’Homme (Parl Doc 7146/5, June 2017) 831 Dominique Peters, Avis Du Procureur D’État De Luxembourg (Parl Doc 7146/7, 12 October 2017) 832 Intersex and Transgender Luxembourg, Avis d’Intersex & Transgender Luxembourg A.S.B.L.
160 example – would be granted some form of control over the procedure, as is the case in Belgium.833
The Parliament’s Legal Commission took all of these comments into account, and after a final vote, the definitive law was passed. It contains no major changes compared to the first legislative proposal. All abusive requirements are still absent in the law. Sterilisation and medical requirements are explicitly prohibited834, and there is no mention of any diagnosis or waiting period. The only requirement is that the person amending their gender proves that they are:
• “publicly present as their preferred gender • are known as their preferred gender by their family, friends, colleagues, or associative circle • have changed their name to one that corresponds to their preferred gender.”
These requirements are not cumulative; it suffices to comply with only one of them.835
Gender recognition is indeed still possible for trans* minors. Trans* children whose parents are not willing to consent are, however, not provided with a solution: gender recognition requires the consent of at least one parent, and if one of the parents does not consent, the other parent must start a judicial procedure so a tribunal can take a decision in accordance with the best interests of the child.836 A minor who is twelve or older must always be heard in administrative or judicial procedures concerning gender recognition.837 Gender recognition is also possible for children under five years of age, but this requires the parents to request such a change before a tribunal.838
Gender recognition is also possible for foreigners residing in Luxembourg839, as well as for recognised refugees 840 . As same-gender marriage has been legal in
833 Conseil d'État du Luxembourg, Avis du Conseil d'État (Parl Doc 7146/10, 10 July 2018) 834 Art. 2 Loi du 10 août 2018 relative à la modification de la mention du sexe et du ou des prénoms à l’état civil et portant modification du Code civil (Luxembourg) 835 Art. 1 ibid. 836 Art. 3 ibid. 837 Art. 12§2 ibid. 838 Art. 4 ibid. 839 Art. 5 ibid. 840 Art. 7 ibid.
161 Luxembourg since 2015841, gender recognition has no impact on civil status. Regarding parental rights, a parent who obtains gender recognition after the birth of their child cannot amend their gender on their child’s birth certificate, and a person who conceives a child after the amendment of their gender will be given the parental status that corresponds to their “biological sex”.842
Both these provisions are rather unfortunate; it would have been better for trans* persons had the legislator complied with Intersex and Transgender Luxembourg’s recommendation and replaced “father” and “mother” by “parents” on future birth certificates. In this regard, it is important to note that Luxembourg’s law makes no provision for non-binary persons. As stated by the Prosecutor-General, this is likely to create problems in the future. Furthermore, it is not possible to change one’s legal gender more than once, save through a judicial procedure.843 Luxembourg, too, fails to recognise the fluid nature that gender has for certain persons.
841 Luxembourg Times, ‘Same-sex marriages from January 1’ (17 July 2014)
162 6. Discussion of the results
a. Evaluation of the national legislations
First and foremost, it is essential to evaluate the scope of the national legislations covered in this study. Those States are largely considered to have fully enshrined the principle of self-determination in their national laws, and are often cited in the media and press in this regard.844 But can we truly take such claims at face value?
It is true that all of these States have eliminated the requirements for gender recognition that the Council of Europe’s Committee of Ministers has termed “abusive.” None of their national legislations require any medical interventions, diagnoses, or periods of “real life experience”; they do not endanger trans* persons’ relationships with their partners or children; and they do not demand the involvement of any third party, at least for adults. In that sense, they certainly comply with a strict definition of “self- determination”. However, it is equally undeniable that these States are not equal in the face of respect for trans* rights. A few noticeable issues come to mind: i. mandatory waiting periods that are not explicitly tied to “real life experience”; ii. lack of self- determination for trans* minors; iii. the lack of protection for intersex persons; iv. the lack of gender recognition for non-binary persons; and v. the impossibility to easily amend one’s legal gender more than once. I shall discuss these issues in this order, focusing on the problems they convey and the States that have not resolved them. As we will see from this analysis, it is not the case that more recent gender recognition laws are necessarily more progressive or more respectful of trans* persons’ self- determination than older ones.
i. Mandatory waiting periods
Denmark and Belgium have inserted mandatory waiting periods in their laws on gender recognition. Persons who wish to amend their legal gender must make a declaration to that effect, then wait a few months – at least three in Belgium845, at least six in
844 See, for example: ILGA-Europe, ‘Norway becomes fourth country in Europe to introduce model of self- determination’ (6 June 2016)
163 Denmark846 – before confirming this declaration. It is only after this confirmation that the gender recognition takes effect. Neither law requires that this period be used to “live as the preferred gender” 847 ; however, it would be naïve to pretend that such a mandatory waiting period does not de facto correspond to a mandatory “real life experience” in most cases. Indeed, such waiting period either forces a trans* person to present as their gender while carrying papers that do not correspond to their gender, exposing them to “vulnerability, humiliation and anxiety”, or forces them back in the closet for several months until they have confirmed their declaration of gender recognition. Given the highly negative impact being closeted can have on LGBTQI+ persons848, it is my opinion that any requirement for gender recognition that forces a trans* person back in the closet should be considered abusive in itself. Consequently, mandatory waiting periods force trans* persons to choose between two abusive requirements for gender recognition, which would make them an abusive requirement themselves.
ii. Gender recognition for trans* minors
Even among the most progressive Member States of the Council of Europe, there is clearly no consensus regarding gender recognition for minors. Age thresholds differ, as do the types of procedure and the need for parental consent or for the involvement of other third parties.
On one side of the spectrum, we find Norway. Norway allows trans* minors who are older than sixteen to access the same procedure as trans* adults, based entirely on self-determination and without any requirements, not even the consent of their parents. Children between six and sixteen years of age can obtain gender recognition through an administrative procedure with the consent of their parents; if only one parent gives consent, the child’s legal gender may still be amended if that is in the best interest of the child, a condition which is also assessed administratively. Parents may also request
846 §1 L 182 Lov 11 Juni 2014 om ændring af lov om Det Centrale Personregister (Tildeling af nyt personnummer til personer, der oplever sig som tilhørende det andet køn) (Denmark) 847 Art. 3§5 Wet tot hervorming van regelingen inzake transgenders wat de vermelding van een aanpassing van de registratie van het geslacht in de akten van de burgerlijke stand en de gevolgen hiervan betreft (Belgium); §1 L 182 Lov 11 Juni 2014 om ændring af lov om Det Centrale Personregister (Tildeling af nyt personnummer til personer, der oplever sig som tilhørende det andet køn) (Denmark) 848 Juster, Grant Smith, Ouellet, Sindi and Lupien, ‘Sexual Orientation and Disclosure in Relation to Psychiatric Symptoms, Diurnal Cortisol, and Allostatic Load’,
164 gender recognition for their child of less than six years of age, but that is only possible if the child is intersex – which must be proven by a medical certificate – and through a court procedure. If a child younger than six years old is considered mature enough to have an opinion on the matter, their opinion must be heard.849
Luxembourg is also very progressive: minors older than five can access administrative gender recognition with the consent of their parents. From the age of twelve, the child’s consent is also explicitly required. If the parents disagree among themselves, a court procedure is required to establish the best interests of the child. Children younger than five years old can be granted gender recognition, but they must be represented by their parents in a judicial procedure. This procedure is not restricted to intersex children.850
Belgium and Portugal have extremely similar provisions regarding gender recognition for trans* minors. Both restrict gender recognition to minors over sixteen; both require parental consent; both demand a certificate by a child psychiatrist that asserts that the minor is mature enough to truly be convinced of their gender identity.851 Such a certificate is quite questionable: while both laws exclude the need for a diagnosis of gender dysphoria, requiring the involvement of a psychiatrist keeps contributing to the psychopathologisation of trans* minors. 852 Portugal furthermore requires this certificate to confirm that the minor gave their free and informed consent and that this decision is in their best interests.853 Portugal does not provide any solution for minors who cannot obtain parental consent; Belgium, however, makes it possible for a minor to ask a court to assign them an ad hoc tutor for this procedure854.
849 Art. 4 Lovvedtak 71 (2015–2016) (Første gangs behandling av lovvedtak) (Norway) 850 Art. 2 Loi du 10 août 2018 relative à la modification de la mention du sexe et du ou des prénoms à l’état civil et portant modification du Code civil (Luxembourg) 851 Art. 3§11 Wet tot hervorming van regelingen inzake transgenders wat de vermelding van een aanpassing van de registratie van het geslacht in de akten van de burgerlijke stand en de gevolgen hiervan betreft (Belgium); Art. 7.2 Lei n.º 38/2018 de 7 de agosto Direito à autodeterminação da identidade de género e expressão de género e à proteção das características sexuais de cada pessoa (Portugal) 852 Emanuelle Bribosia and Isabelle Rorive, ‘Human rights integration in action: making equality law work for trans people in Belgium’ in Eva Brems (ed), Fragmentation and Integration in Human Rights Law: Users’ Perspectives (Cheltenham, Edward Elgar Publishers 2018), p.135 853 Art. 7.2 Lei n.º 38/2018 de 7 de agosto Direito à autodeterminação da identidade de género e expressão de género e à proteção das características sexuais de cada pessoa (Portugal) 854 Art. 3§11 Wet tot hervorming van regelingen inzake transgenders wat de vermelding van een aanpassing van de registratie van het geslacht in de akten van de burgerlijke stand en de gevolgen hiervan betreft (Belgium)
165 Malta allows all minors to access gender recognition, regardless of age. However, it does require a judicial procedure instigated by the minor’s parent. The Court should take its decision in accordance with the best interests of the child and their views according to their age and maturity.855 This provision is extremely similar to the one in Argentinian law856, except for the fact that there are no solutions provided for children whose parents do not support their gender identity.
Ireland is very strict regarding gender recognition for minors. It can only be granted by a Court, on the basis of a medical certificate signed by the child’s primary medical practitioner and an endocrinologist or psychiatrist. This certificate must confirm the child’s maturity, their understanding of the consequences of gender recognition, their free will, and the fact that they have transitioned or started transitioning into their preferred gender. 857 This last requirement is extremely pathologising: while it does not define precisely what such a transition entails, it is entirely possible that individual doctors will require medical treatments before they provide the minor with such a certificate, as was the case with adults in Portugal.858 Even if this last requirement was abolished, the involvement of not one, but two medical practitioners strongly contributes to the pathologisation of trans* minors. Parental consent is also required, except in cases where the parent cannot be found, does not respond to the request for consent, or if contacting them goes against the best interests of the child.859
Denmark, lastly, simply does not make it possible for trans* minors to have access to gender recognition procedures.860 It supposedly based this restriction on Argentinian law, but as explained above, this assertion is erroneous, since Argentina does provide for gender recognition procedures for minors.861
855 Art. 7 Gender Identity, Gender Expression And Sex Characteristics Act of 14 April 2015 (Malta) 856 Art. 5 Ley establecése el derecho a la identidad de género de las personas 857 Art. 12(4) Gender Recognition Act of July 22 2015 (Ireland) 858 Pessoas-Animais-Natureza, Projecto-Lei n.º 317/XIII/2ª, p.3 859 Art. 12(5) Gender Recognition Act of July 22 2015 (Ireland) 860 L 182 Lov 11 Juni 2014 om ændring af lov om Det Centrale Personregister (Tildeling af nyt personnummer til personer, der oplever sig som tilhørende det andet køn) (Denmark) 861 Art. 5 Ley establecése el derecho a la identidad de género de las personas
166 iii. Lack of protection for intersex persons
Gender recognition is intimately tied to gender registration, and gender registration can have a very negative impact on intersex persons. Indeed, they are often forced to undergo coerced or non-consensual surgeries and medical treatments in order to fit them into a specific category of gender registration. Gender recognition in itself does not provide them with enough protection against such violations of their physical integrity862; it is therefore essential to include protective measures for intersex persons into gender recognition laws.
Very few national gender recognition laws, however, provide for explicit protection of intersex persons. Denmark, Ireland, Belgium and Luxembourg do not mention intersex persons at all in their gender recognition laws. Norway does, but only regarding gender recognition procedures for intersex children under the age of five.863 It is possible that knowing that they can amend their child’s legal gender will dissuade parents from having surgeries performed on their intersex infants, as there is no need to definitively “fit them into a box” when they are born. However, this remains to be proven, and Norway has not implemented any protections against non-consensual surgeries on intersex children.
Malta has explicitly included the right to bodily autonomy and physical integrity of intersex persons in its gender recognition law, prohibiting surgeries on intersex children if those children cannot or do not express free and informed consent for those procedures, save in very specific circumstances requiring a continued assessment by an interdisciplinary team.864 Last but not least, Portugal similarly forbids non-consensual medical treatments targeting intersex minors 865 , and explicitly expands gender recognition to intersex persons866. This does not, however, include an option for a third gender marker: the Portuguese authorities fear that such a marker would be
862 Commissioner for Human Rights of the Council of Europe, Human Rights and Intersex People, p.38 863 Art. 4 Lovvedtak 71 (2015–2016) (Første gangs behandling av lovvedtak) (Norway) 864 Art. 14 Gender Identity, Gender Expression And Sex Characteristics Act of 14 April 2015 (Malta) 865 Art. 5 Lei n.º 38/2018 de 7 de agosto Direito à autodeterminação da identidade de género e expressão de género e à proteção das características sexuais de cada pessoa (Portugal) 866 Art. 7§3 ibid.
167 stigmatising and encourage parents to have surgeries performed on their children in order to avoid such stigma.867
iv. Lack of gender recognition for non-binary persons
Third options for gender markers may give rise to stigma, not only for intersex persons but also for non-binary persons. While an oft-repeated argument in favour of gender recognition is that it gives binary trans* persons the opportunity to “slip quietly into the crowd”868 and avoid being outed as trans*, third gender markers always out their carrier as non-binary or intersex. Nonetheless, not all trans* persons want to “slip into the crowd”, and this also goes for non-binary persons.869 For many non-binary persons, recognition and validation of their gender identity is more important than complete control over when they come out to others.
However, non-binary gender recognition remains extremely rare. In the Council of Europe, Malta is the only State to have made this possible.870 Since 2017, it is possible for Maltese IDs to be marked with an “X” instead of an “F” or an “M”. However, this does not extend to the birth certificate, which is still restricted to male and female categories. As the birth certificate has few legal consequences in Maltese law, however871, we can consider this to be de facto gender recognition for non-binary persons.
Denmark does allow “X” gender markers, but this does not amount to gender recognition for non-binary persons. This gender marker is indeed only available to persons who have been “diagnosed as transsexual” by the National Hospital’s Sexological Clinic, but who have not yet undergone sex reassignment surgery. Social security numbers, furthermore, always remain binary.872
There are currently movements in certain of the discussed Member States that work towards non-binary gender recognition. The planned revision of Ireland’s Gender Recognition Act pays attention to non-binary persons.873 Norway, too, might be looking
867 Presidência Do Conselho De Ministros, Proposta de Lei n.º 75/XIII, p.4 868 Theilen, ‘Beyond the gender binary: rethinking the right to legal gender recognition’, , p.3 869 Ibid., p.3 870 Holzer and ILGA-Europe, Non-Binary Gender Registration Models in Europe: Report on third gender marker or no gender marker options, p.18 871 Ibid., p.19 872 Ibid., p.20 873 The Journal Ireland, ‘Children would be able to get full gender recognition under new proposals’
168 at change in that regard.874 In Belgium, finally, there is a case pending before the Constitutional Court, requesting the gender recognition law to be extended to non- binary persons.875
v. The impossibility to easily amend one’s legal gender more than once
Only one Member State of the Council of Europe allows its citizens to amend their legal gender more than once through an administrative procedure. The comments on the Norwegian gender recognition law explicitly state that there is no set limit on the amount of times one may amend one’s legal gender.876 However, one may only change one’s name once every ten years.877 Such a provision clearly recognises the reality that some persons experience gender as fluid, and that gender identity may fluctuate throughout someone’s life.878 The provision regarding the change of name does limit this somewhat, but a gender-neutral name is always a possibility.
Ireland is complicated regarding multiple gender recognition procedures. The procedure for “revoking” gender recognition is the same as for obtaining it. However, both procedures are subject to the control of the Minister for Social Protection.879 While it is technically possible that the Minister would grant a person several amendments of their legal gender throughout their lifetime, the fact that the person must declare that they have “a settled and solemn intention of living in his or her original gender for the rest of his or her life880” makes it quite unlikely that a change in legal gender would be granted more than twice.
Denmark’s law does not mention anything about several procedures for gender recognition. There is also no information in this regard in the report of the Working Group. Considering the fact that the waiting period is meant to avoid “impulsive
874 Independent, ‘Norway could introduce a third gender option on passports for people who identify neither male nor female’ 875 Be Out, ‘Çavaria verwacht komende zomer uitspraak Grondwettelijk Hof voor optimalisatie Transgenderwet’ 876 Helse - og omsorgdepartement, Prop. 74 L (2015–2016) Proposisjon til Stortinget (forslag til lovvedtak) Lov om endring av juridisk kjønn, note on §2 877 Ibid., §9 second alinea 878 Richards, Bouman, Seal, Barker, Nieder and T'Sjoen, ‘Non-binary or genderqueer genders’, 879 Art. 10 & 15 Gender Recognition Act of July 22 2015 (Ireland) 880 Art. 10(f)(ii) ibid.
169 decisions”881, it seems unlikely that several subsequent amendments of the legal gender will be granted. However, it is also possible that the absence of such prohibitions in the law would lead to an evolutive interpretation that would grant gender-fluid persons access to gender recognition several times over.
The four other Member States of the Council of Europe that have been examined in this study all restrict gender recognition to one administrative procedure. Revoking the amendment of one’s legal gender is only possible in exceptional circumstances, through a judicial procedure.882 Such restrictions do, in fact, limit trans* persons’ self- determination, since they do not recognise the self-determination of gender-fluid persons. Such restrictions are also often implemented to avoid “impulsive883” or “light- hearted884” decisions regarding gender recognition; this clearly conveys the harmful stereotype of trans* persons as flighty and confused. None of these States provide any evidence of the harm that gender-fluidity would cause to society or that gender-fluidity would impact the seriousness of civil records. In fact, research suggests that reversions of gender recognition remain rare even when they are possible.885 Consequently, such restrictions seem very paternalistic, stereotyping and disrespectful of all trans* persons’ self-determination.
881 Danish Working Group on legal gender recognition, Rapport fra arbejdsgruppen om juridisk kønsskifte, p.3 882 Art. 3§3, 3§5 & 3§10 Wet tot hervorming van regelingen inzake transgenders wat de vermelding van een aanpassing van de registratie van het geslacht in de akten van de burgerlijke stand en de gevolgen hiervan betreft (Belgium); Art. 23§2 Loi du 10 août 2018 relative à la modification de la mention du sexe et du ou des prénoms à l’état civil et portant modification du Code civil (Luxembourg); Art. 8.2 Gender Identity, Gender Expression And Sex Characteristics Act of 14 April 2015 (Malta); Art. 6.3 Lei n.º 38/2018 de 7 de agosto Direito à autodeterminação da identidade de género e expressão de género e à proteção das características sexuais de cada pessoa (Portugal) 883 Danish Working Group on legal gender recognition, Rapport fra arbejdsgruppen om juridisk kønsskiftep3
884Belgian Chamber of Representatives, Parl. Doc. 2403/004: Report by the Commission for Justice, p4. 885 Van den Brink, Recht Doen aan Genderidentiteit: Evaluatie Drie Jaar Transgenderwet in Nederland (2014- 2017)
170 b. Factors that influence the removal of abusive requirements for gender recognition from national legislation
When we look to the preparatory documents of the gender recognition laws in Denmark, Malta, Ireland, Norway, Belgium, Portugal and Luxembourg, we notice that quite a variety of sources regarding requirements for gender recognition have influenced the legislators. A few of those influences are quasi-universal in the reports that led to the adoption of these laws; others are only mentioned in the case of one or two States.
Firstly, we notice that all the preparatory documents cite the Yogyakarta Principles, often quite early in their reasoning.886 Despite the fact that they are not binding, they do seem to have quite the impact on the national legislation of States that are looking to amend their laws on gender recognition. Belgium and Luxembourg even focus specifically on Principles 3 and 18887, i.e. the right to recognition before the law and the protection of medical abuse. These principles are, as stated previously, extremely relevant to the topic of abusive requirements for gender recognition.
A second highly impactful source is the Council of Europe. Every single State examined in this study cites at least one report, resolution or recommendation published by an organ of the Council of Europe. Denmark is the most circumspect in this regard, looking only to the Parliamentary Resolution to put an end to coerced and forced sterilisations.888 All of the other States, however, cite the report of the Commissioner on Human Rights for Human Rights and Gender Identity 889 and Recommendation
886 Danish Working Group on legal gender recognition, Rapport fra arbejdsgruppen om juridisk kønsskifte, p.30-31; Falzon, A Proposed Gender Identity Act for Malta, p.11-12; Gender Recognition Advisory Group, Report to Joan Burton, T.D., Minister for Social Protection, p.26; Innstilling 315 L til Stortinget fra helse- og omsorgskomiteen (2015- 2016), p.5; Helse - og omsorgdepartement, Prop. 74 L (2015–2016) Proposisjon til Stortinget (forslag til lovvedtak) Lov om endring av juridisk kjønn, p.14; Belgian Chamber of Representatives, Wetsontwerp tot hervorming van regelingen inzake transgenders wat de vermelding van een aanpassing van de registratie van het geslacht in de akten van de burgerlijke stand en de gevolgen hiervan betreft, p.4; Belgian Chamber of Representatives, Parl. Doc. 2403/004: Report by the Commission for Justice, p.4-5; Bloco de Esquerda, PROJETO DE LEI N.º 242/XIII/1.ª, p.3; Luxembourgian Chamber of Representatives, Projet de loi relative à la modification de la mention du sexe et du ou des prénoms à l’état civil et portant modification du Code civil, p.8 887 Belgian Chamber of Representatives, Wetsontwerp tot hervorming van regelingen inzake transgenders wat de vermelding van een aanpassing van de registratie van het geslacht in de akten van de burgerlijke stand en de gevolgen hiervan betreft, p.4; Luxembourgian Chamber of Representatives, Projet de loi relative à la modification de la mention du sexe et du ou des prénoms à l’état civil et portant modification du Code civil, p.8 888 Danish Working Group on legal gender recognition, Rapport fra arbejdsgruppen om juridisk kønsskifte, p.30-31 889 Belgian Chamber of Representatives, Wetsontwerp tot hervorming van regelingen inzake transgenders wat de vermelding van een aanpassing van de registratie van het geslacht in de akten van de burgerlijke stand en de gevolgen hiervan betreft, p.5; Luxembourgian Chamber of Representatives, Projet de loi relative à la modification de la mention du sexe et du ou des prénoms à l’état civil et portant modification du Code civil, p.8; Falzon, A Proposed Gender Identity
171 CM/Rec(2010)5 of the Committee of Ministers on measures to combat discrimination on grounds of sexual orientation or gender identity 890 . Resolution 2048 of the Parliamentary Assembly on discrimination against transgender people in Europe is cited by Belgium, Portugal and Luxemburg891 – this resolution was adopted after, or only very shortly before, the adoption of the other national laws discussed in this study. Belgium also refers to Resolutions 1728 and 1945 of the Parliamentary Assembly.892
The organ of the Council of Europe that has the most influence on national legislation, and indeed the most important source all-round, is the ECtHR. Almost every single State examined in this study explicitly considers its obligations under the ECHR as interpreted in the ECtHR’s judgments, and attempts to write a national law that complies with the Court’s reasoning as much as possible.893 The only exception to this is Portugal; probably because the judgments of the ECtHR concern requirements they had already abolished. The importance of the individual judgments, however, does vary. Christine Goodwin v. UK clearly remains the main judgment concerning trans* rights: the States all refer to the importance of the international trend that the Court found in
Act for Malta, p.2; Gender Recognition Advisory Group, Report to Joan Burton, T.D., Minister for Social Protection, p.26; Innstilling 315 L til Stortinget fra helse- og omsorgskomiteen (2015-2016), p.5; Helse - og omsorgdepartement, Prop. 74 L (2015–2016) Proposisjon til Stortinget (forslag til lovvedtak) Lov om endring av juridisk kjønn, p.14; Bloco de Esquerda, PROJETO DE LEI N.º 242/XIII/1.ª, p.3; Luxembourgian Chamber of Representatives, Projet de loi relative à la modification de la mention du sexe et du ou des prénoms à l’état civil et portant modification du Code civil, p.8
890Belgian Chamber of Representatives, Wetsontwerp tot hervorming van regelingen inzake transgenders wat de vermelding van een aanpassing van de registratie van het geslacht in de akten van de burgerlijke stand en de gevolgen hiervan betreft, p.5; Luxembourgian Chamber of Representatives, Projet de loi relative à la modification de la mention du sexe et du ou des prénoms à l’état civil et portant modification du Code civil, p.8; Falzon, A Proposed Gender Identity Act for Malta, p.29; Gender Recognition Advisory Group, Report to Joan Burton, T.D., Minister for Social Protection, p.26; Innstilling 315 L til Stortinget fra helse- og omsorgskomiteen (2015-2016), p.5; Helse - og omsorgdepartement, Prop. 74 L (2015–2016) Proposisjon til Stortinget (forslag til lovvedtak) Lov om endring av juridisk kjønn, p.14; Bloco de Esquerda, PROJETO DE LEI N.º 242/XIII/1.ª, p.3; Luxembourgian Chamber of Representatives, Projet de loi relative à la modification de la mention du sexe et du ou des prénoms à l’état civil et portant modification du Code civil, p.8 891Belgian Chamber of Representatives, Wetsontwerp tot hervorming van regelingen inzake transgenders wat de vermelding van een aanpassing van de registratie van het geslacht in de akten van de burgerlijke stand en de gevolgen hiervan betreft, p.5; Luxembourgian Chamber of Representatives, Projet de loi relative à la modification de la mention du sexe et du ou des prénoms à l’état civil et portant modification du Code civil, p.8; Bloco de Esquerda, PROJETO DE LEI N.º 242/XIII/1.ª, p.3; 892 Belgian Chamber of Representatives, Wetsontwerp tot hervorming van regelingen inzake transgenders wat de vermelding van een aanpassing van de registratie van het geslacht in de akten van de burgerlijke stand en de gevolgen hiervan betreft, p.5 893 Danish Working Group on legal gender recognition, Rapport fra arbejdsgruppen om juridisk kønsskifte, p.27-31; Falzon, A Proposed Gender Identity Act for Malta, p.12; Gender Recognition Advisory Group, Report to Joan Burton, T.D., Minister for Social Protection, p.22-26; Innstilling 315 L til Stortinget fra helse- og omsorgskomiteen (2015-2016), p.5; Helse - og omsorgdepartement, 2016 #223}, p.10-11; Belgian Chamber of Representatives, Wetsontwerp tot hervorming van regelingen inzake transgenders wat de vermelding van een aanpassing van de registratie van het geslacht in de akten van de burgerlijke stand en de gevolgen hiervan betreft, p.6; Luxembourgian Chamber of Representatives, Projet de loi relative à la modification de la mention du sexe et du ou des prénoms à l’état civil et portant modification du Code civil, p.2
172 Goodwin as well as refer to the wide margin of appreciation concerning requirements for gender recognition that was established in this case.894 Ireland also considers Goodwin, in conjunction with Parry v. UK, regarding trans* persons’ right to marry.895 The right of trans* persons to marry a person of “the opposite gender” after gender recognition as established in Goodwin is also very important in the Maltese legislation.896
Other judgments are mentioned more sporadically. Denmark mentions Van Kück v. Germany, Schlumpf v. Switzerland, B. v. France, and Sheffield and Horsham v. UK, but only regarding the Court finding that gender identity falls under the protection of Article 8 ECHR.897 Similar references are made by Malta and Ireland.898 Hämäläinen v. Finland is only cited once, by Norway899, but this is not very surprising: except for Ireland – which passed its law only very shortly after this judgment – all countries examined in this study allowed same-gender marriage, which was the main issue at stake in this judgment.
Belgium is the only State to cite Y.Y. v. Turkey regarding mandatory sterilisation900, but this has a logical explanation. Indeed, the Court ruled on Y.Y. v. Turkey in 2016, which was too late to have an impact on the legislation of the previous States to amend their laws. Portugal, which came after Belgium, had already eliminated all medical requirements in 2011 – Y.Y. v. Turkey was no longer relevant to their legislation. And by the time Luxembourg started preparing its new law, Y.Y. v. Turkey had been supplanted by a judgment that truly considered sterilisation as a requirement for gender recognition: A.P., Garçon et Nicot v. France.
894 Danish Working Group on legal gender recognition, Rapport fra arbejdsgruppen om juridisk kønsskifte, p.27-31; Falzon, A Proposed Gender Identity Act for Malta, p.12; Gender Recognition Advisory Group, Report to Joan Burton, T.D., Minister for Social Protection, p.22-26; Innstilling 315 L til Stortinget fra helse- og omsorgskomiteen (2015-2016), p.5; Helse - og omsorgdepartement, 2016 #223}, p.10-11; Belgian Chamber of Representatives, Wetsontwerp tot hervorming van regelingen inzake transgenders wat de vermelding van een aanpassing van de registratie van het geslacht in de akten van de burgerlijke stand en de gevolgen hiervan betreft, p.6; Luxembourgian Chamber of Representatives, Projet de loi relative à la modification de la mention du sexe et du ou des prénoms à l’état civil et portant modification du Code civil, p.2 895 Gender Recognition Advisory Group, Report to Joan Burton, T.D., Minister for Social Protection, p.25 896 Falzon, A Proposed Gender Identity Act for Malta, p.35 897 Danish Working Group on legal gender recognition, Rapport fra arbejdsgruppen om juridisk kønsskifte, p.27 898 Falzon, A Proposed Gender Identity Act for Malta, p.12; Gender Recognition Advisory Group, Report to Joan Burton, T.D., Minister for Social Protection, p.22-26; 899 Helsedirektoratet, Rett til rett kjønn - helse til alle kjønn, p.72 900 Belgian Chamber of Representatives, Wetsontwerp tot hervorming van regelingen inzake transgenders wat de vermelding van een aanpassing van de registratie van het geslacht in de akten van de burgerlijke stand en de gevolgen hiervan betreft, p.2
173 Consequently, Luxembourg only refers to A.P., Garçon et Nicot in its preparatory documents. It is also the only State to do so. Indeed, the first proposal for a new Belgian law was submitted right before A.P., Garçon et Nicot was published. The Portuguese draft law was similarly submitted less than a month after the judgment, and more importantly, the abolition of the sterilisation requirement was nothing new to Portugal. Luxembourg, which started its legislative process almost two months after A.P., Garçon et Nicot v. France, extensively refers to this judgment. 901 The insistence on the importance of physical integrity shows that Luxembourg clearly used this judgment as an important source regarding medical requirements for gender recognition.902 It would undoubtedly be very interesting to study the impact of A.P., Garçon et Nicot on future amendments in national legislation regarding gender recognition. Only then will we know if it will become as impactful a judgment as Goodwin, for example.
Regarding the impact of ECtHR judgments, it is important to stress that we have seen that these judgments are, in turn, influenced by a variety of sources. Previous judgments have an impact, of course, but so do the documents of the other organs of the Council of Europe 903 and those of the UN, specifically the reports of the High Commissioner for Human Rights and of the Special Rapporteur on Torture904. Human rights organisations, and more specifically trans* rights organisations, also have an impact, whether as cited sources – such as Transgender Europe’s Trans Rights Map905 – or through third party interventions906. These sources can then be considered to have an indirect impact on the national legislation of Member States.
Their impact is not only indirect, however. Though their presence is less systematic and uniform than the previous sources, the UN and the EU clearly have an impact on national legislation. States refer to the report of the UN Special Rapporteur on
901 Luxembourgian Chamber of Representatives, Projet de loi relative à la modification de la mention du sexe et du ou des prénoms à l’état civil et portant modification du Code civil, p.2 902 Ibid., p.2 903 See, for example: Y.Y. v. Turkey , §110; A.P., Garçon and Nicot v. France , §70-74; S.V. v. Italy , §109-115 904 Y.Y. v. Turkey , §14-19; A.P., Garçon and Nicot v. France , §79-81; S.V. v. Italy , §109-115 905 A.P., Garçon and Nicot v. France , §111 906 See, for example: Amnesty International, TGEU and ILGA-Europe in ibid., §109-115 and Hämäläinen v. Finland , §54-56
174 Torture907, Resolution 17/19 of the UNHRC908, and UN recommendations in general909. References to the EU are similarly broad; they include directives, judgments and policy papers.910 The European Parliament’s resolution of 28 September 2011 on human rights, sexual orientation and gender identity at the United Nations is cited twice: by Belgium911 and by Portugal912.
LGBTQI+ organisations also have an important role to play. Every State examined in this study has consulted with LGBTQI+ organisations. Denmark consulted two LGBTQI+ organisations (LGBT Denmark and the trans*-specific FATID).913 Malta held a public consultation that included several submissions by LGBTQI+ organisations, notably ILGA-Europe and Transgender Europe, and the first draft of its legislative proposal was written by a member of the Malta Gay Rights Movement.914 Ireland also had a public consultation process915, in which it considered the opinions of Transgender Equality Network Ireland and Amnesty International – the latter of which is not an LGBTQI+ organisation but appears often enough in judgments of the ECtHR and preparatory documents of Member States for its impact to be considered significant. Norway mentioned several trans* organisations involved in the public consultative process in its preparatory report.916 Belgium invited no fewer than four LGBTQI+ organisations to speak during the parliamentary sessions about the gender recognition
907 Belgian Chamber of Representatives, Wetsontwerp tot hervorming van regelingen inzake transgenders wat de vermelding van een aanpassing van de registratie van het geslacht in de akten van de burgerlijke stand en de gevolgen hiervan betreft, p.5 908 Presidência Do Conselho De Ministros, Proposta de Lei n.º 75/XIII, p.2 909 Falzon, A Proposed Gender Identity Act for Malta, p.11-12; Government of Malta, Gender Identity, Gender Expression and Sex Characteristics Act: Submissions Report; Belgian Chamber of Representatives, Wetsontwerp tot hervorming van regelingen inzake transgenders wat de vermelding van een aanpassing van de registratie van het geslacht in de akten van de burgerlijke stand en de gevolgen hiervan betreft, p.5; Bloco de Esquerda, PROJETO DE LEI N.º 242/XIII/1.ª, p.3; Luxembourgian Chamber of Representatives, Projet de loi relative à la modification de la mention du sexe et du ou des prénoms à l’état civil et portant modification du Code civil, p.8 910 Falzon, A Proposed Gender Identity Act for Malta, p.11-12; Joint Committee on Education and Social Protection, Report on the General Scheme of a Gender Recognition Bill, p.28; Bloco de Esquerda, PROJETO DE LEI N.º 242/XIII/1.ª, p.3 911 Belgian Chamber of Representatives, Wetsontwerp tot hervorming van regelingen inzake transgenders wat de vermelding van een aanpassing van de registratie van het geslacht in de akten van de burgerlijke stand en de gevolgen hiervan betreft, p5 912 Presidência Do Conselho De Ministros, Proposta de Lei n.º 75/XIII, p.2 913 Danish Working Group on legal gender recognition, Rapport fra arbejdsgruppen om juridisk kønsskifte, p.43 914 , Gender Identity, Gender Expression and Sex Characteristics Act: Public Consultation 915 Gender Recognition Advisory Group, Report to Joan Burton, T.D., Minister for Social Protection, p.55; see also Joint Committee on Education and Social Protection, Report on the General Scheme of a Gender Recognition Bill 916 Helsedirektoratet, Rett til rett kjønn - helse til alle kjønn, p.129-146
175 law.917 Portugal considered the findings of a study made by ILGA Portugal, among others, to be highly important in its decision to amend its gender recognition law.918 Luxembourg, lastly, involved Intersex and Transgender Luxembourg in its legislative process.919 Such a development is extremely positive, since it involves trans* persons directly in the legislative process regarding laws that concern them very intimately. The impact of such laws may be harder to fully grasp for cisgender persons; therefore, it is important that trans* persons get the opportunity to comment on such decisions.
Another extremely impactful source, on the same level as Council of Europe documents and ECtHR judgments, is state practice. The States in this study clearly find national legislation of other States extremely important, and always take inspiration from them. Denmark refers to Iceland, the Netherlands, Portugal, the UK, Sweden, Germany, Norway and Argentina.920 At that time, Argentina was the only example of true self-determination; the other States are cited in regard to their removal of certain abusive requirements. Malta also considers three categories or EU Member States regarding requirements for gender recognition: those without gender recognition procedures, those with gender recognition procedures involving medical requirements and “real life experience”, and those that have abolished these requirements.921 Ireland compares the legislation of EU Member States in a handy table adapted from the European Union Agency for Fundamental Rights.922 Norway refers to legislative changes in Sweden, Denmark, the Netherlands, and New Zealand.923 Belgium looks to Argentina, Malta, Ireland, Sweden, Denmark, the Netherlands, Spain and Norway924; Portugal to
917 Belgian Chamber of Representatives, Parl. Doc. 2403/004: Report by the Commission for Justice, p.33-60 918 Pessoas-Animais-Natureza, Projecto-Lei n.º 317/XIII/2ª, p.2 919 Intersex and Transgender Luxembourg, Avis d’Intersex & Transgender Luxembourg A.S.B.L. 920 Danish Working Group on legal gender recognition, Rapport fra arbejdsgruppen om juridisk kønsskifte, p.36-41 921 Falzon, A Proposed Gender Identity Act for Malta, p.26 922 Gender Recognition Advisory Group, Report to Joan Burton, T.D., Minister for Social Protection, p.26 923 Helsedirektoratet, Rett til rett kjønn - helse til alle kjønn, p.92-102 924 Belgian Chamber of Representatives, Wetsontwerp tot hervorming van regelingen inzake transgenders wat de vermelding van een aanpassing van de registratie van het geslacht in de akten van de burgerlijke stand en de gevolgen hiervan betreft, p.7
176 Argentina, Denmark, Malta, Ireland and Norway925; and Luxembourg to France, Belgium, Denmark, Norway, Malta and Argentina926.
It is noticeable that States who end up basing their laws on self-determination always refer to their predecessors; however, they do not only cite States who grant gender recognition based on self-determination, instead extending their comparative scope to States that have eliminated almost all of the abusive requirements for gender recognition – such as France, the Netherlands or Sweden. The comparison is also not limited to European States. They make up the majority of countries referred to, but Argentina and New Zealand, for example, are mentioned too. Furthermore, States do not only look to foreign legislation. Judgments of foreign Constitutional Courts are clearly also important, which we can see from the fact that Malta, Ireland, Belgium and Luxembourg all refer to the German and Austrian Constitutional Judgments concerning sterilisation and mandatory divorce as conditions for gender recognition.927
Looking to the legislation of other progressive States is, no doubt, a positive factor. However, it can also be dangerous if those legislations are not studied with the necessary attention and care, like with Denmark’s restriction of gender recognition to trans* adults. The report cited the Argentinian law, stating that it did not provide for gender recognition for trans* minors. 928 This assertion, however, is false, as the procedure for gender recognition for minors is described in detail in Article 5 of the Argentinian law929 and even announced in Article 4930, which the Working Group cited. Trans* minors in Denmark might have been granted at least some level of exercise of their rights, had the Working Group not made such a mistake.
925 Bloco de Esquerda, PROJETO DE LEI N.º 242/XIII/1.ª, p.6-7 926 Luxembourgian Chamber of Representatives, Projet de loi relative à la modification de la mention du sexe et du ou des prénoms à l’état civil et portant modification du Code civil, p.8 927 Falzon, A Proposed Gender Identity Act for Malta, p.26; Gender Recognition Advisory Group, Report to Joan Burton, T.D., Minister for Social Protection, p.26; Belgian Chamber of Representatives, Wetsontwerp tot hervorming van regelingen inzake transgenders wat de vermelding van een aanpassing van de registratie van het geslacht in de akten van de burgerlijke stand en de gevolgen hiervan betreft, p.7; Luxembourgian Chamber of Representatives, Projet de loi relative à la modification de la mention du sexe et du ou des prénoms à l’état civil et portant modification du Code civil, p.8 928 Danish Working Group on legal gender recognition, Rapport fra arbejdsgruppen om juridisk kønsskifte, p.36 929 Art. 5 Ley establecése el derecho a la identidad de género de las personas 930 Art. 4 ibid.
177 Medical expertise is also taken into account in some preparatory documents. Ireland refers to the pathologisation of trans* identities in the DSM-V and ICD-10.931 Norway consulted the Biotechnology Council, the Norwegian Medical Association, and the Psychologists' Association.932 Belgium invited the expert team on children and gender from a university hospital and referred to the recommendations of WPATH.933 Portugal, too, referred to the ICD, but rather to its eleventh edition, in which trans* identities are depathologised.934 So did Luxembourg935, and it furthermore cited a German study about the positive impacts easy gender recognition has on the health of trans* persons.936 Except for the Irish references, it is clear that these medical factors are used as sources for the international trend towards depathologisation of trans* identities.
A last remarkable influencing factor is the power of individuals. Certainly, the reports and proposals leading to the new legislation were written by small groups of individuals – their influence is therefore essential to the creation of these laws. In two out of the seven cases examined in this study, however, it is one individual who compelled their country to adopt a new gender recognition law. Dr. Lydia Foy, in Ireland937, and Mrs. Cassar, in Malta938, tirelessly brought their cases before national and international courts, persisting until their countries had no choice but to amend their legislation. In both cases, the Goodwin judgment was a determining factor in why the State could no longer ignore these women’s demands939; however, their determination and persistence are, no doubt, fundamental to such an important change, that carries such positive consequences for other trans* persons.
931 Gender Recognition Advisory Group, Report to Joan Burton, T.D., Minister for Social Protection 932 Helse - og omsorgdepartement, Prop. 74 L (2015–2016) Proposisjon til Stortinget (forslag til lovvedtak) Lov om endring av juridisk kjønn 933 Belgian Chamber of Representatives, Parl. Doc. 2403/004: Report by the Commission for Justice 934 Presidência Do Conselho De Ministros, Proposta de Lei n.º 75/XIII, p.2 935 Luxembourgian Chamber of Representatives, Projet de loi relative à la modification de la mention du sexe et du ou des prénoms à l’état civil et portant modification du Code civil, p.7 936 Ibid., p.3 937 Transgender Equality Network Ireland, ‘Dr. Lydia Foy's Case’ 938 , Gender Identity, Gender Expression and Sex Characteristics Act: Public Consultation 939 Ibid.; Joint Committee on Education and Social Protection, Report on the General Scheme of a Gender Recognition Bill
178 Unfortunately, we find a less positive example of the influence that one individual can have in Portugal. A veto imposed by the President managed to undermine the Portuguese Parliament’s attempt to make a major step forward regarding the rights of trans* children.940 However, it remains very positive that two women who have no institutional power in their countries have managed to achieve more progress in Ireland and Malta than what the President himself managed to hinder in Portugal.
I have determined a number of factors that influence legislation concerning abusive requirements for gender recognition. Nonetheless, it is important to remember that we have seen that many of these factors influence each other. As discussed extensively in the discussion of international soft law, the international trend towards depathologisation, and the jurisprudence of the ECtHR, many of these documents refer to one another. The High Commissioner for Human Rights refers to the Council of Europe’s Commissioner for Human Rights941; the UN Special Rapporteur on Torture refers to the High Commissioner for Human Rights942; the UN Independent Expert looks to state practice943; the European Parliament campaigns for the depathologisation of trans* identities at the WHO level; the Council of Europe’s Commissioner for Human Rights refers to state practice, domestic judgments and LGBTQI+ organisations944; the ECtHR cites the Yogyakarta Principles and other organs of the Council of Europe945; etc.
It is consequently impossible to truly separate all of these factors from each other. They all play a role in this evolution concerning abusive requirements for gender recognition. Sometimes, it is their very interaction that helps engineer legislative progress – such as in Norway, where CMRec(2010)5 and the Yogyakarta Principles were considered very important despite their lack of legal binding power, because the ECtHR cites them regularly.946
940 BBC, ‘Portugal's president vetoes new gender-change law’ 941 UN High Commissioner for Human Rights, Report to the UNHRC on discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity, §57 942 Méndez, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment to the UNHRC, §45 943 Madrigal-Borloz, Report by the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity to the General Assembly, §48-74 944 Commissioner for Human Rights of the Council of Europe, Human Rights and Gender Identity, p.6 945 A.P., Garçon and Nicot v. France 946 Helse - og omsorgdepartement, Prop. 74 L (2015–2016) Proposisjon til Stortinget (forslag til lovvedtak) Lov om endring av juridisk kjønn, p.5
179 While the main factors that directly influence national legislation are clearly the Yogyakarta Principles, the Council of Europe’s reports, recommendations and resolutions, the judgments of the ECtHR, and state practice, the other cited influences are also highly important. Firstly, they impact those major sources for national legislation. Secondly, some of them are cited directly in the preparation of national laws. Thirdly, they influence each other, and together they create the “international trend” towards acceptance of trans* persons, which is of such high importance to the reasoning of the ECtHR. Within this trend, they interact to bolster the specific international trend towards depathologisation of trans* identities, which in turn eliminates the justifications for medical requirements for gender recognition.
180 c. Towards the future
Consequently, all the previously established influences are essential in the efforts to further the abolition of abusive requirements for gender recognition. In proposals for national legislation, it might be most efficient to insist heavily upon the Yogyakarta Principles, the Council of Europe’s reports, recommendations and resolutions, the judgments of the ECtHR, and state practice. However, we would be remiss to underestimate the influence of other factors. Continuing the push for trans* rights at the UN and EU level would certainly lead to further progress at the national level. The work of trans* organisations and broader organisations for LGBTQI+ rights and human rights in general is demonstrably essential, since they are systematically consulted during the legislative process. The power of individuals cannot be discounted either: this study has shown that the relentless efforts of one person, or a small group of persons, can bring about significant changes for larger groups of persons. The medical and scientific field is also fundamental, due to its impact on the trend towards depathologisation of trans* identities. Lastly, the interaction of all these factors drives the broader trend towards acceptance of trans* identities and promotions of trans* persons’ rights, which is a major consideration in the ECtHR’s reasoning and, therefore, a major influence on national gender recognition legislation.
These conclusions are relevant since, as we have seen, the evolution towards national implementation of trans* persons’ self-determination has only just started. Not only does this trend still have to spread to a vast majorities of countries, not just world- wide but also in Europe; many of the countries that have nominally based their national legislation on self-determination still have quite a way to go. Considering the limitations of these national laws as discussed above – mandatory waiting periods that are not explicitly tied to “real life experience”; lack of self-determination for trans* minors; lack of protection for intersex persons; lack of gender recognition for non-binary persons; and the impossibility to easily amend one’s legal gender more than once – it is likely that even these States will still amend their legislation concerning gender recognition in the future. It would be very interesting to study such future evolutions, in these States as well as in States that must still abolish all abusive requirements for gender recognition.
Another interesting topic for further study would be a relatively new factor in the amendment of national legislation concerning gender recognition. Indeed, the proposed
181 revision to the British Gender Recognition Act, which would abolish all abusive requirements for gender recognition to amend this Act in accordance with trans* persons’ self-determination, is currently the subject of passionate public debate.947 Public opinion regarding the right to gender recognition based on self-determination has not been this intense in any of the States discussed in this study. Examining the impact of public opinion on gender recognition laws would certainly add to our insight regarding the evolution of such laws.
As mentioned earlier, there are currently a few cases pending before the ECtHR that concern gender recognition without sex reassignment surgery 948 , gender recognition without any medical treatments 949 , and the parental rights of trans* persons950. The Court’s decisions in these cases and their impact on the national legislation of Member States will certainly warrant future study. Furthermore, there are currently two cases pending before the Court that concern gender recognition in very specific situations.
The first concerns a Ukrainian intersex woman who was assigned male as birth. Her application for gender recognition was denied because she had not undergone sex reassignment surgery. 951 In its assessment of this case, the Court will have the opportunity to examine the particular situation of intersex persons in regard to non- consensual medical treatments and genital surgeries. This could be an essential judgment for intersex persons’ right to physical integrity. Whether the Court treats intersex persons and trans* persons who are not intersex the same way considering gender recognition would also shed further light on the Court’s views on sex and gender.
The second pending case concerns a trans* refugee in Hungary, who cannot obtain gender recognition because he has no Hungarian birth certificate. There is no procedure that can provide a solution to this situation.952 In this case, the Court will have to consider the very specific concerns of trans* refugees, who often find themselves in situations of extreme vulnerability. Such a judgment would be very interesting
947 Dunne and Hewitt, ‘Gender Recognition, Self-Determination and Segregated Space’ 948 R.L. and P.O. v. Russia; X and Y v. Romania; A.D. and A.K. v. Georgia 949 X v. Russia 950 Y.P. v. Russia 951 P. v. Ukraine, App. no. 40296/16, Application of 6 July 2016 (ECtHR) 952 Rana v. Hungary, App. no. 40888/17, Application of 29 May 2017 (ECtHR)
182 regarding the Court’s willingness to acknowledge and redress situations of intersectional oppression, specifically regarding particularly vulnerable trans* persons.
183 7. Conclusion
It is my opinion that three main conclusions can be drawn from this study, parallel with the discussion of the results. The first is that the States that are widely considered to have abolished all abusive requirements for gender recognition have, in practice, not truly done so, and have certainly not fully implemented gender recognition based on self-determination. This is most obvious in Denmark and Belgium’s required waiting period during the gender recognition procedure, which forces trans* persons to choose between several months of “real life experience” – which is considered abusive – or several months of being pushed back into the closet – which, in my opinion, should be considered abusive. Other States also have their issues, however. Gender recognition procedures for minors, for example, are in dire need of harmonisation. They should be the subject of a comprehensive study regarding the best interests of the child, instead of simply assuming that trans* minors are being influenced or going through a phase. The worst offender in this regard is Denmark, which utterly prohibits gender recognition for minors.
The question of strictly binary gender registration also remains unresolved, despite the recommendations in that sense made by the Parliamentary Assembly of the Council of Europe in Resolutions 2049 and 2191. The implementation of at least a third gender marker is essential for the right to gender identity of non-binary persons; nonetheless, Malta is as yet the only European State to make gender recognition possible for non-binary persons. As such a third gender marker may lead to stigma against intersex children and, consequently, to increased “normalising surgeries” in order to avoid this stigma, it is very important that gender recognition laws contain an explicit provision that protects intersex minors against non-consensual medical treatments. Malta and Portugal are the only European States to have included such a provision in their gender recognition laws. In the light of such stigma, it would also be important to prohibit mandatory assignment of the third gender marker to intersex children; their best interests should always be examined.
Lastly, a major problem is the principled irreversibility of gender recognition procedures. In all States studied, except Norway, one can only amend one’s legal gender once. Revocations are only possible through arduous and lengthy procedures, often before a court. The request for reversion must be sufficiently motivated, and a judge or
184 Minister has full power to grant or refuse the revocation. Such restrictions infringe upon trans* persons’ self-determination in two ways. Firstly, they make self-determination impossible for gender-fluid persons. Secondly, they are often meant to avoid “impulsive” or “light-hearted” decisions procedures for gender recognition, which is extremely stereotyping and paternalistic.
Such restrictions to trans* persons’ self-determination should be reconsidered and, hopefully, removed. It is even possible that, in order to completely abolish violations of trans* persons’ rights in relation to gender recognition, States might have to move towards the abolition of gender registration altogether. Who knows, however, when our societies will be ready for this?
The second conclusion of this study regards the driving factors behind the evolution towards the abolition of abusive requirements for gender recognition in national legislation. I have found the Yogyakarta Principles, the Council of Europe’s reports, recommendations and resolutions, the judgments of the ECtHR, and state practice to be the major influences in this evolutions. Nevertheless, other influences – the UN, the EU, trans* organisations, the medical and scientific field, individual efforts – are also extremely important. They drive the evolutions independently from each other and through their interactions, and they create the international trend towards heightened acceptance of trans* persons and promotion of their rights as well as the trend towards depathologisation of trans* identities.
Regarding these influencing factors, I have made two discoveries that I, personally, find very interesting. Both relate to the impact that an individual can have on large-scale changes. The first is Denmark’s mistake in its reading of the Argentinian law regarding gender recognition for minors. Such a small mistake, probably made by a single person, led to a law that completely excludes all Danish trans* minors from gender recognition. The second is Dr. Lydia Foy and Mrs. Cassar’s influence on the national legislation in Ireland and Malta. The fact that a single individual can be so influential gives me hope for the future evolution of gender recognition laws.
Lastly, the obvious conclusion from this study is that the evolution in national gender recognition laws has only just begun. Some States have a longer way to go than others, but the evolution has not yet been completed by any European State. Other factors in this evolution will undoubtedly appear: public opinion, new judgments, new
185 recommendations, new scientific insights, etc. New laws, certainly, even for the States examined in this study. I cannot predict the future, but it seems to me that this is only the first wave of legislation regarding gender recognition based on self-determination. Many States still have to implement gender recognition procedures in their laws. Other States will likely eliminate abusive requirements for gender recognition – a process that seems to be underway in the UK, for example. States that have already done so may keep amending their legislation to better respect the rights of trans* persons – like Portugal, which revised its 2011 law in 2018. Following up this evolution promises to be very interesting work, that will provide us with many new insights. Perhaps even more importantly, however, this study shows that we do have the tools, the methods and the duty to help push this evolution forward.
186 8. Bibliography
a. Legislation and preparatory documents
i. Argentina
Ley establecése el derecho a la identidad de género de las personas ii. Denmark
L 182 Lov 11 Juni 2014 om ændring af lov om Det Centrale Personregister (Tildeling af nyt personnummer til personer, der oplever sig som tilhørende det andet køn) (Denmark) L 60 Forslag til lov om ændring af lov om assisteret reproduktion i forbindelse med behandling, diagnostik og forskning m.v. og sundhedsloven Danish Working Group on legal gender recognition, Rapport fra arbejdsgruppen om juridisk kønsskifte (2012-270-0021, 2014) Vestager M, Forslag til Lov om ændring af lov om Det Centrale Personregister (Tildeling af nyt personnummer til personer, der oplever sig som tilhørende det andet køn) (Minister of Economy, 2014) iii. Malta
Gender Identity, Gender Expression And Sex Characteristics Act of 14 April 2015 (Malta) Falzon N, A Proposed Gender Identity Act for Malta (2010) Gender Identity, Gender Expression and Sex Characteristics Act: Public Consultation (29 October 2014) Government of Malta, Gender Identity, Gender Expression and Sex Characteristics Act: Submissions Report (2015) iv. Ireland
Gender Recognition Act of July 22 2015 (Ireland) Gender Recognition Bill 2014: As Initiated (Ireland) Gender Recognition Advisory Group, Report to Joan Burton, T.D., Minister for Social Protection (2011) Joint Committee on Education and Social Protection, Report on the General Scheme of a Gender Recognition Bill (ESP31011, 2014) Irish Statute Book:, ‘Marriage Act 2015: Amendment of Gender Recognition Act 2015’ (29th October 2015)
Lovvedtak 71 (2015–2016) (Første gangs behandling av lovvedtak) (Norway) Prop. 74 L (2015–2016) Lov om endring av juridisk kjønn (Norway) Prop 74 L (2015-2016) Proposition to the Storting (proposal for a legislative decision) on The Legal Gender Amendment Act (Unofficial Transation) Helsedirektoratet, Rett til rett kjønn - helse til alle kjønn (2015) Innstilling 315 L til Stortinget fra helse- og omsorgskomiteen (2015-2016)
187 Helse - og omsorgdepartement, Prop. 74 L (2015–2016) Proposisjon til Stortinget (forslag til lovvedtak) Lov om endring av juridisk kjønn (2016) vi. Belgium
Wet tot hervorming van regelingen inzake transgenders wat de vermelding van een aanpassing van de registratie van het geslacht in de akten van de burgerlijke stand en de gevolgen hiervan betreft (Belgium) Belgian Chamber of Representatives, Wetsontwerp tot hervorming van regelingen inzake transgenders wat de vermelding van een aanpassing van de registratie van het geslacht in de akten van de burgerlijke stand en de gevolgen hiervan betreft (Parl Doc 2403/001, 4 April 2017) Raad Van State Afdeling Wetgeving, Advies over een voorontwerp van wet tot hervorming van regelingen inzake transgenders wat de vermelding van een wijziging van de registratie van het geslacht in de akten van de burgerlijke stand en de gevolgen hiervan betreft (60690/2, 2017) Belgian Chamber of Representatives, Parl. Doc. 2403/002 (2 May 2017) Belgian Chamber of Representatives, Parl. Doc. 2403/003 (9 May 2017) Belgian Chamber of Representatives, Parl. Doc. 2403/004: Report by the Commission for Justice (19 May 2017) Belgian Chamber of Representatives, Parl. Doc. 2403/006 (23 May 2017) Belgian Chamber of Representatives Parl. Doc. 2403/007 (24 May 2017) vii. Portugal
Lei n.º 38/2018 de 7 de agosto Direito à autodeterminação da identidade de género e expressão de género e à proteção das características sexuais de cada pessoa (Portugal) Bloco de Esquerda, PROJETO DE LEI N.º 242/XIII/1.ª (2016) Pessoas-Animais-Natureza, Projecto-Lei n.º 317/XIII/2ª (2016) Presidência Do Conselho De Ministros, Proposta de Lei n.º 75/XIII (2017) Moreira I, Cunha S and Silva A, DECRETO N.º 203/XIII Direito à autodeterminação da identidade de género e expressão de género e à proteção das características sexuais de cada pessoa: Proposta de alteração (2018) ‘Quadro Comparativo Projeto de Lei 242/XIII’ (Parlamento.pt)
Loi du 10 août 2018 relative à la modification de la mention du sexe et du ou des prénoms à l’état civil et portant modification du Code civil (Luxembourg) Luxembourgian Chamber of Representatives, Projet de loi relative à la modification de la mention du sexe et du ou des prénoms à l’état civil et portant modification du Code civil (Parl Doc No 7146, 31 May 2017) Centre Pour L’Égalite De Traitement (Luxembourg), Avis Du Centre Pour L’Égalite De Traitement (Parl Doc 7146/4, 10 July 2017) Commission Consultative Des Droits De L’Homme (Luxembourg), Avis De La Commission Consultative Des Droits De L’Homme (Parl Doc 7146/5, June 2017) Conseil d'État du Luxembourg, Avis du Conseil d'État (Parl Doc 7146/10, 10 July 2018) Intersex and Transgender Luxembourg, Avis d’Intersex & Transgender Luxembourg A.S.B.L. (Parl Doc 7146/9, 26 April 2018)
188 Peters D, Avis Du Procureur D’État De Luxembourg (Parl Doc 7146/7, 12 October 2017) b. Case Law
i. ECtHR
Van Oosterwijck v. Belgium, App. no. 7654/76, 6 November 1980, (ECtHR) Rees v. UK, App. no. 9532/81, 17 October 1986, (ECtHR) Cossey v. UK, App. no. 10843/84, 27 September 1990, (ECtHR) B. v. France, App. no. 13343/87, 25 March 1992, (ECtHR) X, Y and Z v. UK App. no. 21830/93, 22 April 1997, (ECtHR) Sheffield and Horsham v. UK, App. no. 31–32/1997/815–816/1018–1019, 30 July 1998, (ECtHR) Thlimmenos v. Greece, App. no. 34369/97, 6 April 2000, (ECtHR) Christine Goodwin v. UK, App. no. 28957/95, 11 July 2002, (ECtHR) I. v. UK, App. no. 25680/94, 11 July 2002, (ECtHR) Erkaban v. Turkey, App. no. 59405/00, 6 July 2006, (ECtHR) Grant v. UK App. no. 32570/03, 23 May 2006, (ECtHR) Parry v. UK, App. no. no. 42971/05, 26 November 2006, (ECtHR) R. and F. v. UK, App. no. 5748/05, 26 November 2006, (ECtHR) L. v. Lithuania, App. no. 27527/03, 11 September 2007, (ECtHR) Nuñez v. France App. no. 18367/06, 26 May 2008, (ECtHR) Féret v. Belgium, 15615/07, 16 July 2009, (ECtHR) Schlumpf v. Switzerland App. no. 29002/06, 8 January 2009, (ECtHR) P.V. v. Spain App. no. 35159/09, 30 November 2010, (ECtHR) Vejdeland et al. v. Sweden, App. no. 1813/07, 9 February 2012, (ECtHR) Eweida et al. v. UK, App. no. 48420/10, 59842/10, 51671/10 and 36516/10, January 15 2013, (ECtHR) Hämäläinen v. Finland App. no. 37359/09, 16 July 2014, (ECtHR) Y.Y. v. Turkey App. no. 14793/08, 10 March 2015, (ECtHR) A.P., Garçon and Nicot v. France App. no. 79885/12, 52471/13, 52596/13, 6 April 2017, (ECtHR) S.V. v. Italy App. no. 55216/08, 11 October 2018, (ECtHR) X v. FYROM App. no. 29683/16, 11 January 2019, (ECtHR) A.D. and A.K. v. Georgia, App. no. 57864/17 and 79087/17, Applications of 1 August 2017 and 10 November 2017, (ECtHR) Cassar v. Malta App. no. 36982/11, Application 1 June 2011, (ECtHR) Y.P. v. Russia, App. no. 8650/12, Application of 18 January 2012, (ECtHR) R.L. and P.O. v. Russia, App. no. 36253/13 and 52516/13, Applications of 25 May 2013 and 30 May 2013, (ECtHR) X and Y v. Romania, App. no. 2145/16 et 20607/16, Applications of 19 December 2015 and 4 April 2016, (ECtHR) P. v. Ukraine, App. no. 40296/16, Application of 6 July 2016, (ECtHR) X v. Russia, App. no. 60796/16, Application of October 2016, (ECtHR) Rana v. Hungary, App. no. 40888/17, Application of 29 May 2017, (ECtHR)
189 ii. ESC
Transgender Europe and ILGA-Europe v. the Czech Republic, App. no. 117/2015, 15 May 2018, (European Committee of Social Rights) iii. IACtHR
Gelman v. Uruguay, 24 February 2011, (IACtHR) Atala Riffo and daughters v. Cile, 24 February 2012, (IACtHR) c. Soft Law
i. Yogyakarta
International Commission of Jurists and International Service for Human Rights, Yogyakarta Principles: Principles on the application of international human rights law in relation to sexual orientation and gender identity (2007) International Commission of Jurists and International Service for Human Rights, Yogyakarta Principles plus 10: Additional principles and state obligations on the application of international human rights law in relation to sexual orientation, gender identity, gender expression and sex characteristics to complement the Yogyakarta Principles (2017) ii. UN
UNHRC, Rsolution 17/19 on Human rights, sexual orientation and gender identity (A/HRC/RES/17/19, 2011) UNHRC, Resolution 32/2 on Protection against violence and discrimination based on sexual orientation and gender identity (A/HRC/RES/32/2, 2016) UN Human Rights Committee, Concluding observations of the Human Rights Committee: Ireland (CCPR/C/IRL/CO/3, 2008) UN Human Rights Committee, Concluding observations of the Human Rights Committee: United Kingdom Of Great Britain And Northern Ireland (CCPR/C/GBR/CO/6, 2008) UN High Commissioner for Human Rights, Report to the UNHRC on discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity (A/HRC/19/41, 2011) UN High Commissioner for Human Rights, Report to the UNHRC on Discrimination and violence against individuals based on their sexual orientation and gender identity (A/HRC/29/23, 2015) UN Special Rapporteur on Freedom of religion or belief, Special Rapporteur’s Compilation of Articles on Freedom of religion or belief and Sexuality (2017) Pûras D, Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health to the UNHRC (A/HRC/35/21, 2017) Méndez JE, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment to the UNHRC (A/HRC/31/57, 2016) Muntarbhorn V, Report of the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity to the General Assembly (A/72/172, 2017) Muntarbhorn V, Report of the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity to the UNHRC (A/HRC/35/36, 2017) Madrigal-Borloz V, Report by the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity to the General Assembly (A/73/152, 2018)
190 Madrigal-Borloz V, Report of the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity to the UNHRC (A/HRC/38/43, 2018) UN Committee on the Rights of the Child, General comment No. 20 (2016) on the implementation of the rights of the child during adolescence (2016) UNDP and Parliamentarians for Global Action, Advancing the Human Rights and Inclusion of LGBTI People: A Handbook for Parliamentarians (2017) United Nations, Joint Statement on Ending Violence And Discrimination Against Lesbian, Gay, Bisexual, Transgender And Intersex People (2015) CEDAW, General recommendation No. 28 on the core obligations of States parties under article 2 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW/C/GC/28, 2010) CEDAW, General recommendation No. 32 on the gender-related dimensions of refugee status, asylum, nationality and statelessness of women (CEDAW/C/GC/32, 2014) CEDAW, General recommendation No. 35 on gender-based violence against women, updating general recommendation No. 19 (CEDAW/C/GC/35, 2017) CESCR, Concluding Observations on the fifth report of Germany ( E/C12/DEU/CO/5, 2011) CESCR, General comment No. 22, on the right to sexual and reproductive health. (E/C12/GC/22, 2016) OHCHR, Living Free and Equal: What States Are Doing To Tackle Violence And Discrimination Against Lesbian, Gay, Bisexual, Transgender And Intersex People (2016) OHCHR, ‘"Pathologization – Being lesbian, gay, bisexual and/or trans is not an illness"’ (2016)
Commissioner for Human Rights of the Council of Europe, Human Rights and Gender Identity (2009) Commissioner for Human Rights of the Council of Europe, Human Rights and Intersex People (2015) Committee of Ministers of the Council of Europe, Recommendation on measures to combat discrimination on grounds of sexual orientation or gender identity (CM/Rec(2010)5, 2010) Parliamentary Assembly of the Council of Europe, State, religion, secularity and human rights (2007) Parliamentary Assembly of the Council of Europe, Resolution 1728 on discrimination on the basis of sexual orientation and gender identity (2010) Parliamentary Assembly of the Council of Europe, Resolution 1945 on putting an end to coerced sterilisations and castrations (2013) Parliamentary Assembly of the Council of Europe, Resolution 2048 on discrimination against transgender people in Europe (2015) Parliamentary Assembly of the Council of Europe, Resolution 2191 on promoting the rights of and eliminating discrimination against intersex people (2017) iv. Others
Advisory Opinion OC-1/82 on “Other Treaties” Subject to the Consultative Jurisdiction of the Court, 24 September 1982, (IACtHR) Advisory Opinion OC-24/17 on Gender Identity, And Equality And Non-Discrimination Of Same-Sex Couples, 24 November 2017, (IACtHR) European Commission, Trans and intersex persons: discrimination on the grounds of sex, gender identity and gender expression (2012)
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