The Right to Gender Identity: Legal Perspectives from Europe - Part 1

By Johanna Westeson  

Courts and legislators have long grappled with questions about gender identity, in particular by regulating under what conditions an individual may legally transition from one gender to another. Much of this legislation and jurisprudence has been problematic from a human rights point of view, although, a more recent evolution of the law has started to incorporate human rights principles.

Social rules of gender are in part codified and maintained in law. There are therefore legal consequences for transgressing the rules regulating gender. For example, states permit, mandate, control, or forbid surgeries and medical interventions for the purpose of modifying bodies of persons to align with specific expectations about gender. Similarly, states influence individuals’ practical possibilities to change legal gender and to undergo gender reassignment treatments of various kinds. For example, states can allow or deny change of sex on legal documents such as birth certificates, and states can choose to include or exclude medical treatment related to gender reassignment in health insurance coverage.

Claims drawing on human rights principles include:
  • freedom to access treatment for bodily modification to better reflect the person’s perceived or chosen gender
  • on the other hand, the ability to legally and socially transition to a new gender without submitting to surgeries and/or sterilization
  • the ability to marry, reproduce and found a family for individuals who have transitioned to a new gender
  • the right of transgendered persons to live a life free from violence, discrimination, stigma, and marginalization.
These claims are based on fundamental human rights principles, such as the right to the highest attainable standard of health, the right to private and family life, and to dignity, self-determination and autonomy. In some cases, however, these principles collide or at least partly contradict each other, as can be shown by discussing some relevant laws and court cases from Europe.

Sweden was the first country in the world to provide gender reassignment surgery and to allow for legal change of gender, in 1972. However, the Swedish law is now criticized for the criteria it imposes. The person must be over 18, a Swedish citizen, unmarried, and unable to reproduce. In other words, unless the person is already unmarried and unable to reproduce, sterilization and divorce are imposed. The requirement for unmarried status is also absurd given that Sweden now has a gender neutral marriage law, not distinguishing between same-sex and opposite-sex couples who wish to marry.

Laws like this are not uncommon. For example, in Germany, until very recently gender reassignment surgery was a requirement for change of legal gender. This criterion, alongside with sterilization, was abolished in January, after the German constitutional court found that they violated the basic rights to sexual self-determination, physical integrity and privacy. In Sweden, too, a government-appointed commission has suggested that the requirements for sterilization and unmarried status be removed from the legislation. So what we see here is that human rights principles start to affect laws on gender identity more and more, increasingly stressing the dignity and self-determination of transsexual people. However, problematic aspects remain.

Kazakhstan offers a fascinating example. The law allows for legal change of gender for all purposes, without any requirements of divorce, sterilization, or corrective surgery. Gender change is allowed once “gender identity disorder” has been diagnosed. This approach has many advantages: the law embraces the self-determination of the individual without imposing any more or less oppressive state-defined interventions. However, the Kazakh model is heavily medicalized in its own way and the process of diagnosis is troubling. The individual has to undergo an in-hospital stay, be investigated by psychiatric, neurological and somatic experts, be scrutinized by a special commission, and must undergo an extensive list of tests, including blood and urine tests, an HIV-test, a liver-test, and an X-ray of the skull. This procedure opens an array of possibilities for humiliating, degrading and discriminatory treatment, quite apart from the fact that many of these criteria seem totally irrelevant to the diagnosis as such. Thus – while the Kazakh model is commendable in the outcome that it provides – the possibility of legal change of gender without the imposition of surgery or sterilization – its process presents serious concerns from a human rights angle.

In Spain, there is yet another model. The law is relatively new (2007), and clearly human rights principles have been incorporated more thoroughly. The purpose of the law is to regulate name changes and changes in the civil register related to the sex of a person, when “this entry does not match a person’s real gender identity.” The use of the term “real gender identity” suggests that the individual’s sense of self, dignity, and well-being are at the core of the matter. Surgery is not necessary for a legal change of gender, nor sterilization or unmarried status. Two criteria must be fulfilled: that gender dysphoria has been diagnosed, and medical treatment – not necessarily surgery – for at least two years. The latter criterion is flexible: exceptions can be made for health or age reasons. This presents another example of a rights-based approach: individual concerns play into and may influence state-imposed criteria.

Part 2 discuss the jurisprudence of the European Court of Human Rights and draw conclusions.

Further readings:

ICHRP project currently in research: Sexuality, health and human rights: A knowledge-resource of jurisprudence and law


ICHRP (2009).
Sexuality and Human Rights: Discussion Paper

Project
- Report available in english and spanish


About the Author:

Johanna Westeson is currently the Regional Director for Europe at the Center for Reproductive Rights. She is based in Stockholm, Sweden. This post is adapted from a longer presentation given at the 20th World Congress for Sexual Health, Glasgow, June 2011.


Johanna is also the author of a report on law and jurisprudence related to sexual health and human rights in the European region, written for a global research initiative of the World Health Organisation and shortly to be published in updated, edited form by the ICHRP. Read more on this project.

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