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The Conditions for Obtaining Legal Gender Recognition: a Human Rights Evaluation

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The Conditions for Obtaining Legal Gender Recognition: a Human Rights Evaluation The Conditions for Obtaining Legal Gender Recognition: A Human Rights Evaluation Doctor of Philosophy (Law) 2018 Peter Robert Dunne Declaration I declare that this thesis has not been submitted as an exercise for a degree at this or any other university and it is entirely my own work. I agree to deposit this thesis in the University’s open access institutional repository or allow the Library to do so on my behalf, subject to Irish Copyright Legislation and Trinity College Library conditions of use and acknowledgement. _________________ Peter Robert Dunne Acknowledgments There are numerous acknowledgments which must be made in relation to this doctoral thesis. During my three years of research, I have received generous support from three academic institutions: Trinity College Dublin (TCD), New York University (NYU) and the Max Planck Institute for Comparative and International Private Law (MPI). From 2014-2017, I was the recipient of an Ussher Fellowship from TCD. This grant not only covered my university fees, but also provided a monthly living stipend. It allowed me to focus exclusively on research activities throughout my doctoral studies. TCD has also shown great generosity in consistently supporting my research travel initiatives, providing a number of grants throughout my three years at the university. During the period, 2015-2016, I completed a one-year visiting fellowship at NYU School of Law. While at NYU, I benefited from various institutional resources, and from the warmth and expertise of the law school faculty. I am particularly indebted to Karin Loevy (coordinator of the JSD Programme), David Richards (professor of law, who provided support in numerous ways), Jeremy Waldron (professor of law, who offered generous comments and advice on my work), Michael Kavey (adjunct professor of law, from whose teaching and knowledge I benefited), and the entire JSD community, who created a unique and stimulating academic environment. In the summer, 2017, I undertook a visiting research fellowship at MPI (Hamburg). I am grateful to the Institute directors for providing this opportunity, for the financial assistance that I received and for the expertise from which I benefited during my stay. In the final months of my PhD, I have begun a lecturing position at the University of Bristol. I am grateful for the immediate and continuing support and encouragement that my colleagues, and the university administration, have shown towards my doctoral project. Over the past three years, I have been fortunate to receive the support of numerous colleagues and advisors. At TCD, I am particularly indebted to Kelley McCabe. Even before arriving at TCD, Kelley was extremely generous in offering guidance, advice and organisational help. During my studies, she has been a constant source of encouragement and advice. I am also very grateful for the support of all the staff in the TCD Law School Office, who have shown great kindness in supporting my research. Oran Doyle (TCD Law Head of School) has supported my work since my arrival at TCD. He has been generous in offering advice, both in terms of my research and as a seminar tutor. Andrea Mulligan and Catherine Donnelly carried out my PhD continuation assessment. They provided hugely helpful advice as I moved towards completing my work. During my three years of doctoral research, a number of colleagues have read, critiqued and provided advice on my work. I am grateful for the time, knowledge and insights that they have generously offered. These colleagues include: Shreya Atrey, Sen Raj, Gavin Doyle, Les Fabian Braithwaithe, Talya Housman, Lynsey Black, Sarah Brien O’Sullivan, Ahmed Elsayed, Christine Ryan, Claire Fenton-Glynn, Jens Scherpe, Brian Sloan, Sahar Ahmed, Fergus Ryan, Yuvraj Joshi, David Goodwin, Craig Konnoth, Stephen Clark and Brian Tobin. Since 2009, I have had the privilege to work with numerous non-profit organisations, which support the rights and well-being of lesbian, gay, bisexual, trans, queer and intersex (LGBTQI) individuals. The opportunity to collaborate and engage with these groups has been a highlight of my adult life. I am extremely grateful for the generosity, warmth and encouragement which colleagues in these organisations have consistently shown towards me. Their advice and insights have encouraged my passion for human rights law, and working with these groups has shaped my approach towards transgender rights frameworks. The groups include: The San Francisco LGBT Community Centre (2009); Mass Equality (2010); GLBTQ Advocates and Defenders (2011); Massachusetts Transgender Legal Advocates (2011); OutRight Action International (2011-2012); Intersex and Transgender Luxembourg (2013); Transgender Legal Education and Defence Fund (2016); Transgender Equality Legal Initiative (2016-Present). From 2014-2017, I served as a Board Member of Transgender Equality Network Ireland (TENI). I am particularly indebted to the TENI community for their friendship and support, especially former Chief Executive Officer, Brodan Giambrone. During the past three years, I have been hugely fortunate to enjoy the love, support and encouragement of numerous family and friends. Without their continual advice and motivation, this doctoral project would not have been possible. I am particularly grateful for the advice and support (and patience) of my family members. Niamh Dunne is a true inspiration, and has been (and remains) unendingly supportive. I am blessed to have her advice and friendship. My parents, Mary Teeling and Robbie Dunne, have encouraged my work since the first day at TCD. They have been unfailingly kind, generous, motiving and understanding. To them, I owe an immense debt. Finally, my greatest thanks are owed to my supervisor, Mark Bell. Since summer, 2014, Mark has simply been the perfect mentor. I have valued his kind support, his generous advice and his consistent encouragement. Undertaking this research has been among the most enjoyable experiences of my life. I am fortunate to have had Mark’s mentorship and guidance. Summary This thesis evaluates how human rights law can impact the requirements which states impose as pre-conditions for legal gender recognition. At the international level – within United Nations and regional human rights frameworks – there is growing consensus that transgender persons should be formally acknowledged in their preferred gender. This movement towards gender recognition rights is now reinforced by domestic legal structures, with increasing (national law) possibilities for individuals to amend their gender status. Yet, while human rights have embraced a general entitlement to legal transitions, it is less clear how they can impact the processes by which transgender persons obtain formal acknowledgment. Although de jure progress towards gender recognition rights is welcome, that progress will not de facto benefit transgender individuals if states can establish insurmountable access pre-conditions. This thesis submits four ‘conditions of recognition’ to human rights review: (a) physical medical intervention; (b) compulsory divorce; (c) minimum age limits; and (d) mandatory binary gender. In focusing on these four categories, the thesis does not imply that they are the only possible pre-requisites for gender recognition. There are numerous, additional conditions which can be (and have been) imposed on legal transition pathways. Rather, the thesis concentrates on the four selected requirements merely because, as a matter of both current and historical practice, they are the most common pre-conditions, which applicants for recognition confront. Around the world, formal acknowledgement has typically been reserved for adult male or female-identified persons, who are not party to an existing marriage and who desire full gender-confirming treatments, including the removal of their reproductive capacities. Throughout the substantive assessment undertaken (Chapters II to VI), four human rights themes have particular relevance: (a) bodily integrity; (b) equality and non-discrimination; (c) marriage and family life; and (d) children’s rights. As with the categories of conditions under review, focusing on these four themes does not imply that they are the only rights applicable to legal transitions. Indeed, the historical development of gender recognition illustrates that numerous rights intersect with transgender affirmation, not least the guarantee of privacy. This thesis concentrates on the four selected themes merely because, in the analysis which follows, they are the most relevant rights, cutting across various access requirements for formal acknowledgement. The thesis concludes that human rights law can significantly impact how states control acknowledgment of preferred gender. To the extent that many common conditions of recognition – imposed around the world – violate core human rights standards, they should be removed as entry requirements for legal transitions. However, the thesis also notes the context- specific relationship between human rights and gender recognition. Given the comparative dearth of research on some transgender identities (e.g. transgender minors, non-binary persons.), the thesis acknowledges that the precise impact of human rights may – at certain junctures – not yet be clear. Involuntary medical requirements (e.g. surgery, sterilisation, etc.) are incompatible with bodily integrity guarantees. They constitute ‘cruel and inhuman’ and ‘degrading’ treatment. Depending upon the precise circumstances in which they are imposed, medical
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