11 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 discrimi- nation 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 re- cent 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 of trans 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 cosmetics of the gender or rolebody associated modification, with broad manner, also incorporating elements the sex assigned to them at birth. Among Theof the principles notion of “genderdefine 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- The Equal Rights Review, Vol. Seven (2011) 12 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 The Equal Rights Review, Vol. Seven (2011) 13 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 transsexu- als”.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 tionalThe jurisprudence Classification is of in Diseases fact heavily (ICD-10). penetrat- classificationsof the doctrine which on positive frame dutiesthe 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