The Right to Gender Identity: Legal Perspectives from Europe - Part 2

By Johanna Westeson 
(Read Part 1)

The European Court of Human Rights has addressed issues linked to gender identity several times. These include cases on the right to be legally recognized in one’s preferred gender, and the right to reimbursement for gender reassignment treatment. One landmark case is Goodwin v. UK (2002). Christine Goodwin was a post-operative male-to-female transsexual, who could not have her sex corrected on her birth certificate. This meant, among other things, that she was not entitled to a pension at the age of entitlement for women, that she could not marry her male partner, and that she suffered harassment and discrimination in daily life. The Court found that her right to respect for her private life and her right to marry had been violated. It came to this conclusion in part by stressing that “transsexualism has wide international recognition as a medical condition for which treatment is provided in order to afford relief.” Transsexuals have the right to “personal development and to physical and moral security,” and it could no longer be seen as sustainable for transsexuals to live in “an intermediate zone as not quite one gender or the other.”

It was because the Court concluded that transsexualism or gender identity disorder is a medical condition that it found that states are obliged to offer relief. This line of argument has some obvious advantages from a human rights point of view: if the preoperative state of a transgendered individual is seen as a medical or psychological problem, it can be argued that the state, under its obligations to respect and fulfill the right to health, has a responsibility to provide for and support adequate remedy. This remedy can be to provide treatment at affordable cost, or to legally recognize the acquired gender so the individual can live fully in his or her true gender identity.

In later cases the European Court has more clearly made the connection between medical condition and right to treatment. In Van Kück v. Germany (2003), the applicant was also a male-to-female post-operative transsexual. German courts had denied her the reimbursement she had claimed from her insurance company for her treatment, which included surgery. The German courts accused the applicant of having deliberately caused her transsexualism, which exempted the insurance company from liability, and assumed that treatment and surgery were not “medically necessary” for her. The European Court strongly condemned this reasoning. It reiterated that transsexualism is seen internationally as a medical condition, found inappropriate the assumption that transsexualism was self-induced, and stressed that gender reassignment surgery was necessary for the applicant’s well-being.

It can be deeply problematic to treat transsexualism, or transgenderism, as a disorder; many human rights violations have occurred as the result of such an approach. Diagnosis of a mental disorder can stigmatize individuals and make them objects of medicine, rather than subjects responsible for expressing their own health needs. The European Court seems aware of this dilemma, stressing that this issue “touched upon the applicant’s freedom to define herself as a female person, one of the most basic essentials of self-determination.” It seems the Court tried to reconcile the two perspectives – choice versus medical condition – by concluding that transsexualism is a disorder, or medical condition, if the person involved perceives it as such, which was the case in Van Kück. The right to reimbursement relied on the medical necessity of the intervention – and the applicant had stressed very strongly that for her, this intervention was necessary.

These cases leave a lot of questions unanswered. The Court has not addressed the right to legal change of gender for a pre-operative transgendered person, for example. It has not stated that there is such a thing as a right to gender identity, nor has it ruled that it should be legally possible to live outside of the fixed binary ‘male’ and ‘female.’ All of its cases have dealt with individuals who have or are about to undergo gender reassignment surgery and who clearly identify as one of the two genders. It is therefore hard to draw far-reaching conclusions on how strong the human rights protection of transgendered individuals in Europe in fact is. Some of the European national laws provide more guidance – in particular laws like the Spanish, that disassociate legal change of gender from requirements such as sterilization and surgery. Here we see an approach that more clearly constitutes a right to gender identity less focused on medicalization and more attentive to the psychological and social well-being of the individual. The courts still struggle with this. Furthermore, no European country has recognized a right to live as a third gender, or “sex not specified,” which we have seen in some other parts of the world. Countries far from Europe – most notably Nepal and Pakistan – have started recognizing that some people simply do not wish to and should not have to be defined as either male or female. A fascinating development that takes gender identity concerns to a whole new level. In Europe, we are not there yet.

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

- 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.

1 comment:

  1. Australian passports will soon allow three gender options:


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