Gender Identity Discrimination in European Judicial Discourse

Lauri Sivonen1

Introduction: Gender Identity

Gender identity is receiving increasing rec- Critics of the concept, drawing on queer the- ognition as a prohibited ground of discrimination at international and national levels. privileges essentialist identity above gender The UN system and the Council of Europe ory,blurring have while pointed acknowledging out that such that a definition trans ac- have highlighted its pertinence in the im- - plementation of international and European gic choice.6 human rights standards.2 Explicit references tivists did agree to the definition as a strate to gender identity can also be found in recent national equal treatment legislation in a applicable to practically everyone. However, growing number of countries.3 This broad definition of gender identity is facing discrimination on grounds of gender One focal point for these developments was theidentity group are oftrans people persons. usually This identified heterogene as- the publication, by a group of international ous group of people encompasses persons human rights experts in 2007, of Principles who have a gender identity which is differ- on the application of international human ent from the sex assigned to them at birth rights law in relation to sexual orientation and people who wish to portray their gender and gender identity, usually referred to as identity in a different way to the sex assigned the at birth. It includes people who feel they sexual orientation and gender identity given have to, prefer to, or choose to, for example in theYogyakarta Yogyakarta Principles. Principles The have definitions acquired of by clothing, accessories, mannerisms, speech a considerable degree of authority although they have also received critical attention.4 present themselves differently from the ex- patterns,pectations cosmeticsof the gender or role body associated modification, with broad manner, also incorporating elements the sex assigned to them at birth. Among Theof the principles notion of “gender define gender expression”: identity in a trans people, transsexuals in particular may wish to undergo hormonal and surgical gen- “Gender identity is understood to refer to each person’s deeply felt internal and in- permanently modify their bodily appear- dividual experience of gender, which may or derance reassignment and function. or Other affirming trans personstreatment may to may not correspond with the sex assigned choose different means to express their gen- at birth, including the personal sense of the der identity.7 body (which may involve, if freely chosen, - Recent European studies have demonstrated tion by medical, surgical or other means) and that trans persons experience discrimination modificationother expressions of bodily of gender, appearance including or dress, func in many areas of life including employment, speech and mannerisms.”5 healthcare and education.8 A particular chal-

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lenge for transsexuals is the legal recogni- Rights (the ECHR) operates on an open-end- tion of preferred gender, which may involve ed list of discrimination grounds. European complicated administrative and medical pro- jurisprudence on the subject has, neverthe- cedures. The frequent requirement of infer- less, been relatively clear in distinguishing tility, i.e. sterilisation, is a case in point. The gender identity and sexual identity from fact that trans persons are often subjected to sexual orientation in this context.

healthcare highlights healthcare as the con- In reality, the ECtHR has hardly ever ruled medicaltext of potential diagnoses, discrimination. and need trans-specific explicitly under Article 14 (Prohibition of Discrimination) of the ECHR in cases re- This article will discuss the ways European lated to trans persons.11 Both the ECtHR jurisprudence has viewed and ruled on gen- and the Commission have usually preferred der identity discrimination. In this context, to decide such cases with reference to the European judicial discourse is understood to substantial Articles (e.g. 3 (Prohibition of encompass the supranational judgments and Torture), 6 (Right to a Fair Trial), 8 (Right decisions taken by the European Court of Hu- to Respect for Private and Family Life) and man Rights (the ECtHR), the former Europe- 12 (Right to Marry)) alone, following by now an Commission of Human Rights (the Com- somewhat dated judicial practice. However, mission) which functioned as the ECtHR’s this has been followed by the occasional ac- ante-chamber until the late 1990s, and the knowledgement that the discrimination al- Court of Justice of the European Union (pre- leged by the applicant under Article 14 had viously known as the European Court of been at the heart of the complaints related Justice). This view from above is naturally to the substantial articles as well.12 Still, in limited in many respects and covers only these cases, the ECtHR and the Commission partially the wide range of discrimination have not applied a discourse which fully encountered by trans persons on grounds of elaborates the non-discrimination angle. The their gender identity. Yet it can offer valuable ECtHR’s doctrine on differential treatment insights into the treatment of trans people in is rarely referred to explicitly. This is in con- society as the cases discussed pose funda- trast with the Court of Justice where the non- mental questions about the nature of obsta- discrimination approach is explicit, as the EU cles trans persons experience to the full and equal treatment directives provide the basis effective enjoyment of human rights. for the rulings.

In fact, “gender identity” as such is only rare- Naturally, the approach taken by the ECtHR ly mentioned in European jurisprudence. and the Commission could be primarily de- The currently more ambiguous term “sexual scribed as human rights-based. The differ- identity” has been, since the 1970s, the pre- ence between a rights-based and an equal ferred term used in European jurisprudence, treatment approach is, however, somewhat to cover some of the ground coming under academic. Both approaches can be ultimate- today’s notion of gender identity.9 Owing to ly grounded on the fundamental principles the closed lists of prohibited grounds under enunciated in the Universal Declaration EU law, the Court of Justice of the European of Human Rights which, at the outset (Ar- Union in Luxembourg (the Court of Justice) ticle 1), highlights equality in dignity and has approached gender identity discrimina- rights. Non-discrimination and equality are tion through the “sex” ground.10 The ECtHR transversal principles underpinning human and the Commission in Strasbourg have had rights. The insight of the ECtHR and, even no such imperative need to identify gender more so, of the Commission, that the indi- identity discrimination with the sex ground vidual’s right to self-determination of gender since the European Convention on Human identity – with reference to Article 8 of the

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ECHR – is the fundamental aspect of the com- Transformation from one sexual identity to plaints brought forward by trans persons another characterised the use of the concept under the ECHR, is perfectly relevant to both in the judicial discourse often referred to as approaches.13 “new sexual identity” in the context of “the legal recognition of the change in the appli- European jurisprudence on gender identity cant’s sexual identity”.16 In this manner, sex- discrimination is also intimately connected ual identity was clearly differentiated from with the development of the doctrine of the notion of sexual orientation17 and was states’ positive duties under the ECHR and applied in ways coming relatively close to the the necessity to provide differential treat- current concept of gender identity. ment to trans persons when the treatment afforded to the majority would be clearly dis- Gender identity, in its rare appearances in criminatory in their case. The need to build the jurisprudence, is applied in an analogous on the concept of reasonable accommodation fashion. In 2002-2003, the ECtHR stressed in this context is evident. This demonstrates that “gender identity is one of the most inti- the evolution from formal equality towards mate areas of a person’s private life” and dis- substantive and transformative equality as the doctrine underpinning equal treatment element of sex for “the purposes of legal at- legislation.14 cussedtribution the of significance gender identity of the forchromosomal transsexuals”.18 Gender identity is also referred to in - ments of European judicial discourse on the existence of “gender identity disorder” in This article will focus on three specific ele the Diagnosticcontext of andmedical Statistical classifications Manual of due Men to- given to the ground of gender identity in the tal Disorders of the American Psychiatric genderjurisprudence, identity. with It will reference first discuss to the the notion scope Association (DSM-IV) and the WHO Interna- of sexual identity and the prevailing medical 19

The article will then turn to the development Thetional jurisprudence Classification is of in Diseases fact heavily (ICD-10). penetrat- classificationsof the doctrine which on positive frame duties the discourse. and the ed by medical discourse. As the case law is pertinence of reasonable accommodation almost exclusively related to transsexuals, to the subject. An analysis of the limits and “transsexualism”, a medical diagnosis which lacunae of the protection afforded which fol- preceded that of gender identity disorder in lows highlights certain troubling images con- the DSM, is often the subject of deliberations. veyed by the discourse. The conclusion will - build on the general observations outlined in alism as: the introduction. In 1979, the Commission defined transsexu “[A]n illness characterised by dual 1. Sexual Identity and Medical Discourse personality – one physical and the other mental. The patient is deeply convinced of In European judicial discourse, gender iden- belonging to the other sex resulting in the tity is most often referred to as sexual iden- - tity, even though gender identity has also ingly.”20 demand that one’s body is rectified accord jurisprudence. As early as the 1970s, the In 1986, the ECtHR noted that transsexual- beenCommission specifically referred mentioned to sexual in more identity recent as ism was not a new condition and stated that an essential element of personality, which the: in the case of a “post-operative” transsexual resulted “from his changed physical form, “[T]erm ‘transsexual’ is usually ap- his psychical make-up and his social role”.15 plied to those who, whilst belonging physi-

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cally to one sex, feel convinced that they be- aside the pertinence of arguments regard- long to the other; they often seek to achieve ing medical etiology as well as the predomi- a more integrated, unambiguous identity by undergoing medical treatment and surgical recognised that medical science did not pro- operations to adapt their physical character- nancevide any of determining a biological definitionargument ofas sexregards and istics to their psychological nature”. It also the legal recognition of transsexuals.27 The underlined that “post-operative” transsexu- Commission had arrived at a similar position - in 1979.28 However, this did not change the able group.21 underlying assumption that transsexuality als formed a fairly well-defined and identifi or gender dysphoria as a medical condition Later on, the condition of “gender dyspho- was the applicable discrimination ground as ria” became associated with transsexualism such. in the case law.22 In fact, the ECtHR has ex-

reference to gender dysphoria, is a protected has made an attempt to differentiate be- plicitlyground confirmedof discrimination that “transsexuality”, under Article 14with of Ittween is also the significant applicable to medical note that and the legal ECtHR dis- the ECHR, which includes an open-ended list courses. In two judgments from 2003 and of prohibited grounds of discrimination.23 2009, the ECtHR castigated the judicial au- This underscores the close interplay of the thorities in Germany and Switzerland for medical and legal discourses in delimiting substituting themselves for medical experts the scope of gender identity as a discrimina- by stressing that determining the medical tion ground in European jurisprudence. For necessity of gender reassignment measures the ECtHR, this discrimination ground would 29 By do- principally apply in cases of unequal treat- ing so, the ECtHR not only highlighted the ment experienced by transsexual persons autonomywas not a matterof medical of legal expertise definition. over legal who have undergone gender reassignment discourse but also the right to self-determi- treatment. nation by transsexuals who were no longer expected to prove the medical necessity of Accordingly, medical discourse has played an gender reassignment treatment. In the Chris- important part in affording rights protection tine Goodwin v The United Kingdom judgment of 2002, the ECtHR had already stated that it using gender identity as a broader discrimi- was illogical for a State not to afford full legal to transsexuals in the first place. Instead of recognition for the transsexual’s preferred medical condition, has been applied in Eu- gender if gender reassignment treatment nation ground, transsexualism, defined as a developments related to transsexualism and the state on the basis of a medical diagnosis ropeanto its possible jurisprudence. etiology Medicalwere often and discussed scientific hadand alreadytreatment been operated authorised by a andnational financed health by in the rulings of the ECtHR.24 This was partly service.30 due to the fact that national jurisprudence had occasionally arrived at the conclu- The jurisprudence of the Court of Justice re- sion that transsexualism had been willingly lated to trans persons is also framed by medi- caused by the applicants themselves and that - transsexualism, as well as the legality of gen- tection or recognition.25 dercal discourse. reassignment Definitions treatment, of transsexuality play an impor or- theyof sex, thereby from didan notoverwhelmingly merit specific biologicallegal pro tant part in the deliberations. The medical point of view, laid down Thein the legal English definition case conditions of gender dysphoria and gender of Corbett v Corbett [1971] P83 played an im- - portant part in early jurisprudence as well.26 tioned.31 Yet there is a more conscious em- Only as late as in 2002, the ECtHR brushed phasisidentity on disorder discrimination are also than specifically in the rulings men

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of the ECtHR. In fact, in these cases the Court unclear whether other trans persons than of Justice has applied the ground of sex in its judgments with reference to the principle of European non-discrimination guarantees to equality as laid out in EU directives on the transsexualsa similar extent would as transsexuals. be able to profit from the equal treatment for men and women.32 The - 2. Positive Obligations and Reasonable nation arising from gender reassignment, Accommodation Courti.e. the of intention Justice hasof a affirmed person to that undergo discrimi or having undergone gender reassignment, is European jurisprudence on gender identity covered by the principle of equality between discrimination coincided with the develop- men and women.33 In addition, the jurispru- ment of the doctrine of positive obligations dence has made it clear that discrimination by the ECtHR and the Commission. Positive based on gender reassignment should not obligations, in turn, are intricately related be confused with discrimination related to to the notion of substantive equality when sexual orientation.34 38 - Since the equal treatment directives of the sonsapplied whose in the full field enjoyment of non-discrimination. of human rights European Union operate with closed lists of Thisoften isrequires particularly differential significant treatment to trans or perrea- discrimination grounds, the sex ground was sonable accommodation in a more contem- simply the only applicable ground in this in- porary sense. transsexuality or gender identity in EU law. The development of positive obligations by stanceThe Advocate in the absence General of has a specific also pointed ground out of the European Court of Human Rights is usu- that transsexuals do not constitute a third ally traced to the judgment Marckx v Belgium sex and do therefore fall under the scope of of 13 June 1979 dealing with the difference equal treatment directives.35 In a case con- of treatment made between “illegitimate” cerning a dismissal from a job, the Court and legitimate children under Belgian law of Justice applied as a comparator persons with reference to Articles 8 and 14 of the of the sex to which the applicant had been ECHR. In this case, the ECtHR noted that deemed to belong before undergoing gender “there may be positive obligations inherent reassignment.36 in an effective ‘respect’ for family life” and that states had an obligation to ensure the In conclusion, it should be stressed that the coherence of their national law by making ground of gender identity in European juris- necessary reforms following rulings by the prudence is clearly related to medical classi- ECtHR.39 In the judgment Airey v Ireland of 9 October 1979, concerning an effective right dysphoria or gender identity disorder. In fact, of access to the courts and the availability of ficationsthe origins and of the the medical notion condition of gender of identity gender legal aid with reference to Articles 6-1 and 8 itself can also be found in medical and psy- of the ECHR, the ECtHR already stated clearly chological discourse.37 It should be highlight- - ed that European jurisprudence has rather vention on occasion necessitates some posi- exclusively concerned transsexuals. Trans- tivethat actionthe “fulfilment on the part of a ofduty the under State; the in Consuch sexuality and gender reassignment, the lat- circumstances, the State cannot simply re- ter with reference to the ground of sex, rath- main passive”.40 The doctrine of positive ob- er than gender identity in a broader sense, ligations is built upon the realisation that the are the prohibited discrimination grounds state should not only abstain from interfer- applied by the ECtHR and the Court of Jus- ing with the rights of individuals (a “negative tice. This naturally has implications in terms obligation”) but also take positive measures, of the scope of protection afforded and it is

when necessary, to protect and fulfil such

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rights. This is in line with the Court’s often “illegitimate” child.44 Subsequently, the ex- repeated dictum that “[t]he Convention is in- tent of the state’s positive obligations under tended to guarantee not rights that are theo- Article 8 as to the right to respect for private retical or illusory but rights that are practical life of transsexuals in terms of the state’s rec- and effective”.41 ognition of their preferred gender became a major point of contention, for two decades, between the ECtHR and the Commission.45 case related to gender identity – D. van Oost- Inerwijck the first v Belgium Opinion of of1 Marchthe Commission 1979 – predat on a- With the exception of the case of C. against ing the ECtHR’s Marckx judgment, the Com- United Kingdom,46 the Commission always mission still stated that Article 8 of the ECHR upheld its initial position that states violated predominantly implied only negative obliga- the positive obligations inherent in Article tions on the part of the State. In reality, how- 8 of the ECHR when they did not grant of-

of Article 8 in this case implied a positive ob- gender. Its Opinion in the case of Mark Rees ever,ligation the even Commission’s if this was findingnot spelled of a violationout in an againstficial recognition United Kingdom to transsexuals’ from 1984 preferred referred explicit manner. With reference to the failure directly to the positive obligations of states47 of the applicant to obtain recognition of his and couched its arguments in terms which preferred gender, the Commission stated: come close to acknowledging the right of transsexuals to self-determination: “In the Commission’s opinion, the failure of Belgium to contemplate measures “The Commission accepts the ap- which would make it possible to take account plicant’s view that sex is one of the essential in the applicant’s civil status of the changes elements of human personality. If modern which have lawfully occurred, amounts not to an interference in the applicant’s exercise transsexualism and surgery as effected in the of his right to respect for private life, but a medicalpresent case research has made into specificpossible problemsa change of veritable failure to recognise the respect due sex as far as the normal appearance of a per- to his private life within the meaning of para- son is concerned Art 8 must be understood as graph 1 of Article 8 of the Convention.”42 protecting such an individual against the non- recognition of his/her changed sex as part of Such a “veritable failure” to “contemplate his/her personality. This does not mean that measures” which would result in due re- the legal recognition of a change of sex must spect being given to the private life of the applicant does in practice amount to a fail- moment of change. However, it must be pos- ure to observe positive obligations inher- besible extended for the toindividual the period after prior the to changethe specific has ent in a proactive reading of Article 8 of the - ECHR. It is therefore not surprising that in pearance by the necessary documents.”48 a separate opinion appended to the report, been effected, to confirm his/her normal ap one member of the Commission concluded Furthermore, the Commission pointed out that the ECHR indeed imposed positive ob- that gender reassignment treatment had ligations on states under Article 8.43 In fact, assisted the applicant in realising his iden- this statement was made with reference to tity and “[i]n refusing to consider an entry the Commission’s earlier Opinion in the case of Marckx, in which the Commission had al- change of sex the respondent Government ready argued that the right to respect for intreats the birththe applicant register asreflecting an ambiguous the applicant’s being”.49 family life under Article 8 implied the right It also noted that several member states of to the legal recognition by the state of the pa- the Council of Europe, including Sweden, Germany, Italy, Switzerland and Norway, had

rental affiliation between the mother and an

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already adopted procedures to recognise Until 2002, the ECtHR maintained that sci- transsexuals’ preferred gender. tipped the balance of the state’s margin of The ECtHR, on the other hand, held a dif- entificappreciation and societal to oblige developments the United Kingdom had not ferent position until its ruling in the case of to change its birth registration system in Christine Goodwin v The United Kingdom of this respect. This remained so even when 2002,50 with the exception of the case of B. an overwhelming majority of member states v France in 199251 in relation to which both had already adopted measures to grant full the ECtHR and the Commission were in rare legal recognition to gender reassignment. In agreement. In the case of Rees v The United 1998, the ECtHR still pointed out that there Kingdom from 1986, the ECtHR acknowl- was not “yet any common approach as to edged the positive obligations inherent in an how to address the repercussions which the effective respect for private life but stressed legal recognition of a change of sex may en- that they were subject to the state’s mar- tail for other areas of law”.55 This position, gin of appreciation. It also pointed out that which was clearly refuted by the Christine the notion of “respect” was not clear-cut in Goodwin judgment of 2002, is quite contra- terms of positive obligations: the diversity dictory since the ECtHR has usually high- of national practices and situations had to lighted the margin of appreciation of states be taken into account when considering the to choose the exact measures aimed at ful- issue. Furthermore, in determining the exist- 56 The existence of a positive obligation, a fair balance ence of any “common approach” in a detailed had to be struck between the general inter- fillingsense theirwould positive appear obligations. unrealistic from this est of the community and the interests of the perspective. individual.52 However, in the case of B. v France from In the Rees case, the ECtHR departed from - the opinion of the Commission and ruled cle 8 owing to the failure of the French civil that the respondent state had acted within 1992,register the system ECtHR to did recognise find a violation the gender of reasArti- its margin of appreciation. It stated that: signment of the applicant. The ECtHR argued that the situation in France was different “While the requirement of striking from that prevailing in the United Kingdom a fair balance (…) may possibly, in the inter- and found that the applicant’s daily situation, ests of persons in the applicant’s situation, taken as a whole, was not compatible with call for incidental adjustments to the existing the respect due to her private life. It deemed system, it cannot give rise to any direct ob- that the French civil register system was ligation on the United Kingdom to alter the adaptable to meet the needs of transsexu- very basis thereof.”53 als and that the discrimination experienced

Accordingly, the Court deemed that the pos- level of seriousness to be taken into account itive obligations inherent in Article 8 of the byfor themthe purposes in France of Article had reached 8. The aECtHR sufficient also ECHR did not extend as far as to require the considered more generally that attitudes United Kingdom to change its birth registra- had changed, science progressed and the im- tion system to recognise transsexuals’ pre- portance attached to the “problem of trans- ferred gender. The ECtHR did acknowledge, sexualism” increased. It nevertheless stated nevertheless, that transsexuals encountered serious problems and highlighted the yet been reached between member states need for appropriate legal measures to be thatregarding a sufficiently the etiology broad of transsexualismconsensus had andnot kept under review with reference to scien- the related legal situations and their conse- 54 quences so as to change the Court’s general tific and societal developments.

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appraisal of the situation in Europe from that and insurance. Nevertheless, the ECtHR de- of its earlier judgments.57 clared that:

The simultaneous ECtHR Grand Chamber “No concrete or substantial hardship judgments in Christine Goodwin v The United or detriment to the public interest has indeed Kingdom and I. v The United Kingdom58 from 2002 constituted a watershed in European change to the status of transsexuals and, as re- jurisprudence on gender identity.59 There is beengards demonstrated other possible as consequences, likely to flow thefrom Court any irony in the fact that when the newly reor- considers that society may reasonably be ex- - pected to tolerate a certain inconvenience to nally vindicated the position adopted by the enable individuals to live in dignity and worth ganisedCommission ECtHR in issued1979, thesethe Commission rulings, which itself fi in accordance with the sexual identity chosen had ceased to exist as a consequence of the by them at great personal cost.”61 ECtHR’s reform. The extent of the positive obligations of states to respect the private The ECtHR concluded “that the fair balance life of transsexuals through the legal recogni- that is inherent in the Convention now tilts tion of their gender reassignment was made decisively in favour of the applicant” and manifestly clear through these rulings which found a violation of Article 8.62 took a further step towards recognising the transsexuals’ right to self- determination: It should be noted that the Court of Justice has also considered its cases related to gen- “[T]he very essence of the Conven- der identity with reference to human dignity tion is respect for human dignity and human and substantial equality. The Advocate Gen- freedom. Under Article 8 of the Convention eral has clearly stated that the principle of in particular, where the notion of personal non-discrimination on grounds of sex, which autonomy is an important principle under- was applied in these cases, is aimed at attain- lying the interpretation of its guarantees, ing substantive and actual equality between protection is given to the personal sphere persons.63 The dignity and freedom to which of each individual, including the right to es- transsexuals are entitled have been high- tablish details of their identity as individual lighted in terms of human dignity and the fundamental right to free personal develop- the right of transsexuals to personal devel- ment as also elaborated by the German Con- humanopment beings and to (…) physical In the twentyand moral first securitycentury stitutional Court.64 in the full sense enjoyed by others in society cannot be regarded as a matter of con- The rulings of the ECtHR from 2002 open troversy requiring the lapse of time to cast the way for considering the importance of clearer light on the issues involved. In short, the notion of reasonable accommodation for the unsatisfactory situation in which post- trans persons. As the ECtHR has demonstrat- operative transsexuals live in an intermedi- ed, the effective enjoyment of human rights ate zone as not quite one gender or the other by transsexuals requires clearly differential is no longer sustainable.”60 treatment as that afforded to the majority.65 Important changes to procedures and prac-

changes the respondent state had to carry foreseen by the ECtHR in order to accom- The ECtHR was fully aware of the significant tices in many fields of societal activity were Differential treatment is necessary to ensure out in order to fulfil its positive obligations modatethe equality the specificof outcomes. needs While of transsexuals. the origi- incriminal the fields justice, of birthemployment, registration, social access security to nal birth registration system in the United records, family law, affiliation, inheritance,

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Kingdom did not pose a problem to the over- 3. Disturbing Images whelming majority of the population, it was clearly not adapted to gender reassignment While the role of European jurisprudence and constituted an obstacle against the effec- in protecting the human rights of trans per- tive enjoyment of human rights by transsexu- sons has been considerable, it also contains als. Here the parallels with many people with disturbing features which pose fundamental disabilities are striking and it is not surpris- questions as to the limits of the afforded pro- ing that the concept of reasonable accommo- tection. In fact, the image of the trans person shaped by the medico-legal discourse of the although not exclusively, in the context of the jurisprudence is quite extraordinary and dationrights of has persons been developed, with disabilities. in the66 first place one–sided. We appear to envision only transsexuals who have almost always undergone The UN Convention on the Rights of Persons hormonal and surgical gender reassignment - treatment – “post-operative transsexual” is sonable accommodation in its Article 2: one of the omnipresent markers. Medical di- with Disabilities defines the notion of rea agnoses of gender dysphoria, gender identity disorder and transsexualism accompany the - applicants who are portrayed, almost heroi- tion and adjustments“‘Reasonable accommodation’ not imposing a dispro- cally, as exercising their right to self-deter- meansportionate necessary or undue and burden, appropriate where modifica needed mination by choosing to undergo dangerous in a particular case, to ensure to persons medical treatment to ensure the “stability” of with disabilities the enjoyment or exercise their gender identity. on an equal basis with others of all human rights and fundamental freedoms.” It is this image of suffering individuals, who through their extraordinary efforts become Reasonable accommodation does not consti- “deserving” of legal and societal recognition, tute a temporary special measure or excep- which is embedded in the European juris- tion to the rule of equal treatment but is part prudence of all the judicial instances covered of the general obligation of non-discrimina- in this article. In its judgment in van Kück v tion as is the related notion of accessibility.67 Germany, the ECtHR pointed out that:

For trans persons, reasonable accommoda- “[G]iven the numerous and painful in- tion could include, for example, differential terventions involved in gender reassign- procedures for civil registration, special fa- ment surgery and the level of commitment cilities for changing name and sex in identity and conviction required to achieve a change documents and educational diplomas, and in social gender role, it cannot be suggested adaptations to the working environment in that there is anything arbitrary or capricious terms of unisex toilets and the availability of in the decision taken by a person to undergo time for treatment related to gender reassign- gender reassignment”.68 ment. It could also encompass the possibility to continue an existing marriage after gender In the case of K. B. v The National Health reassignment when it is not normally author- Service Pensions Agency and the Secretary of ised for same-sex couples. There is a need State for Health, the Advocate General of the for further research and practice in order to Court of Justice of the European Union made explore the possibilities for implementing a similar statement: reasonable accommodation with reference to gender identity and other prohibited grounds “Transsexuals suffer the anguish of of discrimination in addition to disability. being convinced that they are victims of an

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error on the part of nature. Many have cho- to “transition” to their “true gender identi- sen suicide. At the end of a long and painful ty”. 75 Indeed, the jurisprudence and some ap- process, in which hormone treatment is fol- - lowed by delicate surgery, medical science ognition of gender reassignment constitutes can offer them partial relief by making their pendedan integral opinions part ofsuggest a long that process, the official perhaps rec external physical features correspond as far providing the ultimate closure to the “transi- as possible to those of the sex to which they tion”.76 Yet, while we must highlight the fact feel they belong. To my mind it is wrong that that not all trans persons actually intend to the law should take refuge in purely techni- undergo gender reassignment at all, even cal expedients in order to deny full recog- among transsexuals who wish to do so, the nition of an assimilation which has been so continuity or coherence of any binary gen- painfully won.”69 der identity may not be as evident as we may think initially, simply because of the tempo- The portrayal takes place against a back- ral dimension involved. ground of daily discrimination experienced by transgender persons that is amply il- This raises two inter-related issues. One is lustrated in the rulings.70 The treatment of the availability of protection against dis- transsexuals as “ambiguous beings” by the crimination for those trans persons who state through its previous non-recognition of do not intend to undergo gender reassign- gender reassignment plays an important role ment and those transsexuals who are in the and it should be noted that several applicants process of undergoing gender reassignment have also claimed, albeit unsuccessfully so treatment – not simply “intending or having far, violations of Article 3 on the prohibition undergone” it. Another is the conditions re- of torture of the ECHR as well.71 In the rul- quired for the legal recognition of the pre- ings, the judicial bodies offer their sympathy ferred gender of trans persons. Although for the persons concerned even when they both of these issues may still fall into the are unable to uphold the applicants’ human cracks of the doctrines of subsidiarity and rights claims.72 Even those judges who clear- the states’ margin of appreciation, they are ly state their scepticism towards the full rec- worth exploring for a moment. ognition of the human rights of trans persons in opinions appended to the judgments do The fact that the European judicial instanc- not fail to express concern over the human es have almost exclusively dealt with claims suffering involved.73 originating from “post-operative” transsexuals among trans people demonstrates a However, there is an open space which re- tendency that irreversible gender reassign- mains unexplored by the European jurispru- ment treatment is viewed as a necessary dence. While the judicial discourse demon- condition for acquiring legal recognition strates a desire for stability in terms of gen- for a trans person’s preferred gender. While der identity and stress that transsexuals do such a requirement is not universal among not represent a third sex,74 it is exactly this European countries, it does exist in a great space between two binaries that the rulings number of them.77 Yet sterilisation as a con- fail to shed light into. Not that it is totally ab- dition for the legal recognition of a person’s sent either. Transsexuals’ personal histories gender identity, even with reference to a of transition are usually recited at the be- medical condition, appears strange from a ginning of the judgments among “the facts”. human rights perspective. Principle 3 of the What is especially striking in these miniature Yogyakarta Principles advocates an end to CVs is that they repeatedly demonstrate the such requirements. The Commissioner for long period of time – several years if not dec- Human Rights of the Council of Europe has ades – which it has taken for the applicants made a similar recommendation.78 The Eu-

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ropean Court of Human Rights has not yet ly had to differentiate between women and ruled directly on this issue. men. For example, the Belgian identity cards and passports at the time did not indicate the There is, however, jurisprudence on another sex of the person concerned.81 The French usual condition for the recognition of gender government developed this line of argument reassignment, i.e. the requirement of be- vigorously in the case of B. v France and ing unmarried. On this issue, the ECtHR has stressed that there usually was no need to decided that a divorce requirement can fall make the sex of a person explicit when car- within the margin of appreciation of member rying out public or private business.82 This states. The ECtHR did so with the full knowl- would demonstrate that the authorities of edge of the consequences of the requirement member states have been able to imagine a on the family life of the applicants: society where explicit distinctions based on gender are only made when considered nec- “The legislation clearly puts the ap- essary following a proportionality test.

Such imaginative capacity can also be found plicantstheir marriage. in a quandary In those – theterms, first there applicant is a at the national level currently as regards con- must,direct and invidiously, invasive sacrificeeffect on herthe applicants’ gender or ditions for recognising gender reassignment. enjoyment of their right to respect for their As already noted, the divorce requirement is private and family life.”79 by no means universal. Such a requirement does not make sense either in those countries where there is access to marriage by the right to marry, which in the main defers same-sex couples more broadly.83 The steri- Theto national specificity legislation of Article on 12 marriage, of the ECHR, was reon- lisation requirement is not universal either - and there is recent jurisprudence from the ing the application manifestly ill-founded. It German and Austrian constitutional courts ferredis of interest to by the to ECtHRnote that as ain reason some memberfor find declaring it contrary to fundamental rights states, the highest courts have ruled that a guarantees.84 Current gender recognition divorce requirement would not be propor- legislation in the United Kingdom, Spain and tionate for recognising gender reassign- Portugal does not require sterilisation.85 ment.80 The proportionality test may ulti- When such practices are followed by more related to divorce and partnership legisla- member states we may ultimately witness matelytion in each depend member on the state. specific conditions regarding the issue. This would open up the If we take the view that compulsory sterili- morepossibility affirmative for European European jurisprudence jurisprudence on sation or divorce requirements are too high gender identity discrimination which would a price to pay for maintaining heteronorma- not simply protect “post-operative” transsex- tive gender binaries, we may then pose the uals but trans persons in a wider sense. Ju- question as to the alternatives for recognis- risprudence of this kind could also recognise ing gender variance and protecting trans the existence of gender variance which can- persons more broadly against discrimination - to ensure their substantive equality. Perhaps sations but may indeed occupy “ambivalent” surprisingly, earlier European jurisprudence notor “intermediate simply be confined zone” intopositions binary previously categori on gender identity discrimination may shed eschewed by the ECtHR.86 The observance of some alternative light for viewing the ques- proportionality in determining the necessity tion. In the 1970s, the Belgian government of making explicit distinctions as to the sex argued in the case of D. van Oosterwijck be- or gender of a person as well as the imple- fore the Commission that the state only rare- mentation of reasonable accommodation for

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gender variance could then be applied as op- limited to trans persons alone: a wide range erative principles for ensuring that all trans of differences in gendered roles and expres- persons can effectively enjoy their universal sions can be found among the population at human rights. large. After all, the notion of gender identity

Conclusion applicable to practically everybody. A broad asunderstanding defined in theof gender Yogyakarta identity, Principles which may is European judicial discourse on gender identity clearly demonstrates the fact that differ- in the Yogyakarta Principles, should have the ential treatment can be essential for achiev- alsopotential reach to further question than essentialist the definition gender given bi- ing substantive equality for certain minori- naries and accommodate the full scope of ex- ties in particular. Positive obligations of isting gender diversity. This underscores the pertinence of gender identity to the ground necessitate reasonable accommodation to of sex or gender as well as gender equality statesenable to individuals protect and to livefulfil in human dignity rights and enjoy may more generally. In the case of trans persons, human rights on an equal basis with others. the European jurisprudence already demon- In such situations, identical treatment for strates that both grounds can be used to af- everybody would result in the blindness of ford protection against discrimination. formal equality to recognise people’s actual diversity. Here the unity of human rights and It would be worthwhile to explore further the equality approaches is evident, highlighting interconnections between these two grounds the pertinence of the notion of transforma- in an effort to grasp the broader relevance of tive equality,87 which is underpinned by the the notion of gender identity that would also need to take proactive measures, by a great temper the inherent binary essentialism pre- variety of institutions, to ensure equality. sent in the sex ground. While both grounds The implementation of reasonable accom- can be viewed separately, the fruitfulness of modation for other groups than people with their inter-relationship should not be under- disabilities will have to be developed further. estimated. Although it may be necessary to highlight the usefulness of the ground of gen- However, discourse on gender identity discrimination also provides pointers be- protection against the discrimination en- yond minority concerns. The need to apply dercountered identity by in trans ensuring persons, specific the andstrategic effective use proportionality in the distinctions made of both grounds and their cross-fertilisation in relation to sex or gender has a broader hold even greater potential for implementing relevance. Gender variance is by no means equality for the population at large.

1 Lauri Sivonen is adviser to the Commissioner for Human Rights of the Council of Europe. The views and opinions expressed in this article are those of the author. 2 See, for example, UN Human Rights Council, Resolution on Human Rights, Sexual Orientation and Gender Identity, A/HRC/17/19, 17 June 2011; UN Committee on Economic, Social and Cultural Rights, General Comment 20: Non- discrimination in Economic, Social and Cultural Rights (Art. 2, Para 2), UN Doc. E/C. 12/GC/20, 2 July 2009, Para 32; and Committee of Ministers of the Council of Europe, Recommendation CM/Rec(2010)5 of the Committee of Minis- ters to Member States on Measures to Combat Discrimination on Grounds of Sexual Orientation or Gender Identity, 31 March 2010. The non-discrimination provision (Article 4) of the new Council of Europe Convention on preventing Ministers on 7 April 2011, includes gender identity explicitly among the prohibited grounds of discrimination. and combating violence against women and domestic violence, (CM(2011)49 final), adopted by the Committee of

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3 In Europe, this is the case in Albania, Croatia, the Czech Republic, Germany, Hungary, Montenegro, Serbia, Sweden - er for Human Rights of the Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity inand Europe the United, Council Kingdom, of Europe although Publishing, there 2011,is significant pp. 41-42. variation in the precise wording used. See also Commission 4 Ettelbrick, P. L. and Zeràn, A. T., The Impact of the Yogyakarta Principles on International Human Rights Law Devel- opment: A Study of November 2007 – June 2010: Final Report, 10 September 2010; Waites, M., “Critique of ‘sexual orientation’ and ‘gender identity’ in human rights discourse: global queer politics beyond the Yogyakarta Princi- ples”, Contemporary Politics, Vol. 15(1), 2009, pp. 137-156. 5 See Footnote 2 to the Introduction to the Yogyakarta Principles. 6 Waites, above note 4, pp. 147-148. 7 In addition to transsexuals, trans persons can include, among others, transgender people, transvestites, cross- used, which can overlap, are adapted from the descriptions given by TransgenderEurope. For more information, dressers,see the organisation’s no gender, multigender, website, available genderqueer at: www.tgeu.org people, intersex. “Transgender and other persons” gender variant is also usedpersons. by some The definitions people and organisations as an umbrella term to refer to all trans persons. 8 Whittle, S., Turner, L., and Al-Alami, M., Engendered Penalties: Transgender and Transsexual People’s Experiences of Inequality and Discrimination, The Equalities Review, 2007; Motmans, J., Being Transgender in Belgium: Mapping the Social and Legal Situation of Transgender People, Institute for the Equality of Women and Men, 2009; Franzen, J. and Sauer, A., Benachteiligung von Trans*Personen, insbesondere im Arbeitsleben, Antidiskriminierungsstelle des Bundes, 2010; see also Commissioner for Human Rights of the Council of Europe, above note 3. 9 An interesting interpretation of the differences between the notions of sexual identity and gender identity can be found in Diamond, M., “Sex and Gender are Different: Sexual Identity and Gender Identity are Different”, Clinical Child Psychology and Psychiatry, Vol, 9(3), July 2002, pp. 320-334. 10 The EU equal treatment directives (Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin; Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation; Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions; and Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services) operate with reference to closed lists of discrimination grounds. However, the Char- ter of Fundamental Rights of the European Union, which entered into force in 2009, includes a non-exhaustive list of discrimination grounds in Article 21. 11 The most notable exception is P. V. v Spain, Appl. no. 35159/09, ECHR, 30 November 2010. 12 See, for example, Christine Goodwin v The United Kingdom, Appl. No. 28957/95, ECHR, 11 July 2002, Para 108. 13 See also Reed, R., “Transsexuals and European Human Rights Law”, Journal of Homosexuality, Vol. 48(3), 2005, pp. 64-65. 14 On the evolution of equal treatment legislation see Hepple, B., “The New Single Equality Act in Britain”, The Equal Rights Review, Vol. 5, 2010, pp. 11-23. 15 D. van Oosterwijck against Belgium, Appl. No. 7654/76, Report of the European Commission on Human Rights, adopted on 1 March 1979, Para 52. 16 Mark Rees against The United Kingdom, Appl. No. 9532/81, Report of the European Commission on Human Rights, adopted on 12 December 1984, Paras 31 and 48; Sheffield and Horsham v The United Kingdom, Appl. No. 31-32/1997/815-816/1018-1019, ECHR, 30 July 1998, Para 60; P. v S. and Cornwall County Council, Case C-13/94, Opinion of the Advocate General, 14 December 1995, Para 10. 17 See above, note 11, Para 30. 18 See above, note 12, Para 82; and van Kück v Germany, Appl. No. 35968/97, ECHR, 12 June 2003, Para 56. 19 See above, note 12, Para 81. 20 See above, note 15, Para 16. 21 Rees v The United Kingdom, Appl. No. 9532/81, ECHR, 17 October 1986, Para 38; cf. P. v S. and Cornwall County Council, above note 16, Para 8. 22 See above, note 12, Para 78. 23 See above, note 11, Para 30. 24 See, for example, B. v France, Appl. No. 13343/87, ECHR, 25 March 1992, Paras 46-48; and Sheffield and Hor- sham v The United Kingdom, above note 16, Para 56.

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25 B. v France, above note 24, Paras 14-15; van Kück v Germany, above note 18, Para 23; cf. the government’s position in D. van Oosterwijck against Belgium, above note 15, Para 36. 26 See Mark Rees against United Kingdom, above note 16, Para 21; Rees v The United Kingdom, above note 21, Paras 27 and 29; Sheffield and Horsham v The United Kingdom, above note 16, Para 27; and above note 13, pp. 57-58. 27 See above, note 12, Paras 81-83. 28 See above, note 15, Para 16. 29 The ECtHR found a violation of Article 6(1) of the ECHR in both cases. (See above, van Kück v Germany, note 18, Paras 53-57 and 64-65; and Schlumpf v Switzerland, Appl. No. 29002/06, ECHR, 8 January 2009, Paras 51-58; cf. above, note 15, Para 16.) 30 See above, note 12, Para 78. 31 P. v S. and Cornwall County Council, above note 16, Paras 8-13 and 24; ibid., Judgment, 30 April 1996, Para 16; K. B. v The National Health Service Pensions Agency and the Secretary of State for Health, Case C-117/01, Opinion of the Advocate General, 10 June 2003, Paras 25, 79 and footnote 15; Sarah Margaret Richards v Secretary of State for Work and Pensions, Case C-423/04, Opinion of the Advocate General, 15 December 2005, Para 1. 32 The rulings refer to Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women, Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, and Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security. 33 P. v S. and Cornwall County Council, above note 16, Judgment, Paras 20-21. 34 K. B. v The National Health Service Pensions Agency and the Secretary of State for Health, above note 31, Paras 25 and 73. 35 P. v S. and Cornwall County Council, above note 16, Para 22; see also above, note 10, on closed lists of discrimination grounds. 36 P. v S. and Cornwall County Council, above note 16, Judgment, Para 21. 37 See Franzen, J. and Sauer, A., above note 8, pp. 13-15. 38 Goldschmidt, J. E., “Reasonable Accommodation in EU Equality Law in a Broader Perspective”, ERA Forum, Vol. 8(1), 2007, pp. 39-48. 39 Marckx v Belgium, Appl. No. 00006833/74, ECHR, 13 June 1979, Paras 31 and 42. 40 Airey v Ireland, Appl. No. 6289/73, ECHR, 9 October 1979, Para 25. 41 Ibid., Para 24. 42 See above, note 15, Para 52. 43 Ibid., Separate Opinion by Mr Sperduti, p. 24. 44 Paula and Alexandra Marckx v Belgium, Appl. No. 6833/74, Report of the European Commission on Human Rights, adopted on 10 December 1977, Para 72. 45 See also Helfer, R., “Consensus, Coherence and the European Convention on Human Rights”, Cornel International Law Journal, Vol. 133, 1993, pp. 146-154. 46 C. against United Kingdom, Appl. No. 10843/84, Report of the European Commission on Human Rights, adopted on 9 May 1989. 47 See above, note 16, Mark Rees against United Kingdom, Para 40. 48 Ibid., Para 43. 49 Ibid., Para 48. 50 See above, note 12. 51 B. v France, above note 24. 52 Rees v The United Kingdom, above note 21, Paras 35 and 37. 53 Ibid., Paras 42 and 44. 54 Ibid., Paras 42-44 and 47. 55 See Sheffield and Horsham v The United Kingdom, above note 16, especially Paras 35, 57 and 61. Of 37 countries

analysed by Liberty in their submission to the ECtHR, only four had not provided for procedures for the official

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recognition of gender reassignment. (Cf. Joint Concurring Opinion of Judges de Meyer, Valticos and Morenilla ap- developments as well as the doctrine of margin of appreciation held little relevance in cases related to trans per- pendedsons.) to the judgment. This Opinion appears to suggest that for the judges concerned, scientific, legal or societal 56 See, for example, above note 39, Paras 42 and 58; above note 40, Para 26; and B. v France, above note 24, Para 63; cf. above note 12, Para 85. 57 B. v France, above note 24, Paras 51-63. 58 I. v The United Kingdom, Appl. No. 25690/94, ECHR, 11 July 2002. 59 Of course this watershed was already anticipated by several dissenting opinions appended to the earlier rulings of the Court. See, for example, Cossey v The United Kingdom, Appl. No. 10843/84, ECHR, 27 September 1990, Dis- senting Opinion of Judge Martens; and Sheffield and Horsham v The United Kingdom, above note 16, Joint Partly Dis- senting Opinion of Judges Bernhardt, Thor Vilhjalmsson, Spielmann, Palm, Wildhaber, Makarczyk and Voicu, and Dissenting Opinion of Judge van Dijk. 60 See above, note 12, Paras 71 and 90. 61 Ibid., Para 91. 62 Ibid., Para 93. 63 P. v S. and Cornwall County Council, above note 16, Para 19. 64 P. v S. and Cornwall County Council, above note 31, Judgment, Para 22; K. B. v The National Health Service Pensions Agency and the Secretary of State for Health, above note 31, Para 77. On the jurisprudence of the German Constitu- tional Court, see above, note 13, pp. 60-61. 65 On the approach of the ECtHR regarding differential treatment in the prevention of discrimination, see Thlim- menos v Greece, Appl. No. 34369/97, ECHR, 6 April 2000, Paras 39-49. 66 See above, note 38, pp. 44-48. 67 Ibid., pp. 45-46. The obligations related to the concept of accessibility are described in Article 9 of the UN Con- vention on the Rights of Persons with Disabilities, A/RES/61/106, 13 December 2006. 68 Van Kück v Germany, above note 18, Paras 14 and 59; cf. above, note 15, Paras 14-15 and 52. 69 K. B. v The National Health Service Pensions Agency and the Secretary of State for Health, above note 31, Para 79. 70 For example, B. v France, above note 24, Paras 59-60 and 63; and above note 12, Paras 15-19, 60-62, and 92. 71 For example, the cases of van Oosterwijck v Belgium, Appl. No. 7654/76, ECHR, 6 November 1980; Mark Rees v United Kingdom, Appl. No. 9532/81; B. v France, above note 24; and L. v Lithuania, Appl. No. 27527/03, ECHR, 11 September 2007. 72 Rees v The United Kingdom, above note 21, Para 47. 73 See, for example, B. v France, above note 24, Dissenting Opinion of Judge Valticos, joined by Judge Loizou. 74 See above, note 12, Para 71; and P. v S. and Cornwall County Council, above note 16, Para 22. 75 For example, see above, note 12, Para 13; cf. Rooke, A., “Telling Trans Stories: (Un)doing the Science of Sex”, in Hines, S. and Sanger, T. (eds.), Transgender Identities: Towards a Social Analysis of Gender Diversity, New York, Rout- ledge, 2010, pp. 64-83. 76 Mark Rees against United Kingdom, above note 16, Para 43; above note 12, Para 78; Cossey v The United Kingdom, above note 59, Dissenting Opinion of Judge Martens. 77 Commissioner for Human Rights of the Council of Europe, above note 3, pp. 86-87; see also European Union Agency for Fundamental Rights, Homophobia, Transphobia and Discrimination on Grounds of Sexual Orientation and Gender Identity: 2010 Update – Comparative Legal Analysis, 2010, Table 1. 78 Commissioner for Human Rights of the Council of Europe, above note 3, p. 13. 79 Parry v The United Kingdom, Appl. No. 42971/05, ECHR, 28 November 2006, p. 10; cf. R. and F. v The United King- dom, Appl. No. 35748/05, ECHR, 28 November 2006, p.12. 80 Constitutional Court of Austria (V 4/06, 8 June 2006) and Federal Constitutional Court of Germany (1 BvL 10/05, 27 May 2008). 81 See above, note 15, Paras 21-23. 82 B. v. France, above note 24, Para 61. 83 In Europe, access to marriage by same-sex couples is currently available in Belgium, Iceland, the Netherlands, Norway, Portugal, Spain and Sweden. The divorce requirement for the recognition of gender reassignment, how-

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ever, is still in the statute books in Sweden. (See Commissioner for Human Rights of the Council of Europe, above note 3, pp. 87-88 and 91.) 84 Ibid., pp. 86-87; see also Constitutional Court of Austria (V 4/06, 8 June 2006) and Federal Constitutional Court of Germany (1 BvR 3295/07, 11 January 2011). 85 Commissioner for Human Rights of the Council of Europe, above note 3, pp. 86-87. 86 Cf. Hines, S., “Recognising Diversity? – The Gender Recognition Act and Transgender Citizenship”, in Hines, S. and Sanger, T. (eds.), Transgender Identities: Towards a Social Analysis of Gender Diversity, New York: Routledge, 2010, pp. 87-105. 87 See above, note 14, pp. 11-24, in which the notion of transformative equality is developed.

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