“Self-determination” hiatus in European transgender laws

Posted on January 9, 2017 by Ellen Defrancq

The legal content of acts related to transgender people has been much discussed and revised lately. As a tolerant society we like to boast that studies and discussion groups pay due attention to this issue. We should now aim to get our fellow Europeans on the same page. Misguided legislative work could eventually lead to very unpleasant consequences for the individuals concerned from the transgender community.

Europe endorsed the UN’s “Yogyakarta Principles” (Principles on the application of international human rights law in relation to sexual orientation and gender identity) and has already condemned several Member States on that basis for non or only partial implementation of the directives the charter. From this “Bible” of human rights for LGBT people, we spotlight two of the 29 principles: the right to legal recognition and the right to privacy.

Principe 3:

Yogyakarta PrinciplesEveryone has the right to recognition everywhere as a person before the law. Persons of diverse sexual orientations and gender identities shall enjoy legal capacity in all aspects of life. Each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom. No one shall be forced to undergo medical procedures, including sex reassignment surgery, sterilisation or hormonal therapy, as a requirement for legal recognition of their gender identity. No status, such as marriage or parenthood, may be invoked as such to prevent the legal recognition of a person’s gender identity. No one shall be subjected to pressure to conceal, suppress or deny their sexual orientation or gender identity.

Principe 6:

Everyone, regardless of sexual orientation or gender identity, is entitled to the enjoyment of privacy without arbitrary or unlawful interference, including with regard to their family, home or correspondence as well as to protection from unlawful attacks on their honour and reputation. The right to privacy ordinarily includes the choice to disclose or not to disclose information relating to one’s sexual orientation or gender identity, as well as decisions and choices regarding both one’s own body and consensual sexual and other relations with others.

We recognize in these words one constant: “Self-determination”. This usually is the point of dispute when it comes to applying the UN directives to national legislation.

Belgian draft act

Belgium filed a draft act on transgender people in December 2016. Defender of Interests, Cavaria, represented by Jeroen Borghs, reacted in a cautiously positive way and simultaneously pointed out the weak spots in regards to self-determination. The prosecutor would therefore have to issue an instruction on the desired changes in the gender register. “If anyone in good conscience claims to have a specific gender identity, the claim should be respected. How are you going to determine fraud in this case? You cannot look into someone’s head”, we read into Cavaria’s reaction.

Furthermore, applicants must present a certificate showing that they have been informed by a transgender organization about the consequences of gender change registration. Borghs: “Fully-fledged self-determination assumes that someone can register desired gender identity without the approval of others.”

This act will make it possible to have the registered gender changed on the birth certificate if the person is at least 16 years old. For this purpose, a statement from a child and adolescent psychiatrist will be required. “This conflicts with the desire to go to a full demedicalization”, was the reaction of Borghs to Cavaria’s website.

Lack of self-determination in Germany

In Germany, the “Transsexuals Act”  has existed since 1981. Undoubtedly a forerunner in Europe. However, the regulations of that time still apply, which compelled lawyer Dr.Laura Adamietz to urgently call for the outdated texts to be adapted to the current requirements. She works with a research team from the Humboldt University of Berlin on a legal opinion which will be forwarded to the competent authorities in February. “The old law has been declared unconstitutional six times in the past. That in itself says enough already,” stated Dr. Adamietz in an interview with National Geographic,

She also considers the lack of self-determination the biggest criticism of the Act. In Germany, a transgender person is required to submit a certificate from two independent experts in order to a change a gender registration. According to Adamietz this is legally untenable with the UN human rights in mind. She also warns that the act should be thoroughly amended once and for all.

In the 300-page report, reference is made to the marital status of transgender married persons which should be maintained when a partner chooses to change gender. In this connection, will the father and mother bonds with any children should be clearly defined, and the privacy of the child should at all times be protected.

As Cavaria does in Belgium, the final aim in Germany should be the third option. In particular, leaving the gender entry blank on official documents.

Righteous transgender laws

It is with great interest that we note how the needs of the transgender community should be formed into adequate and righteous texts. In Norway, Sweden, Denmark, Malta and Ireland, it is sufficient to adjust the genus registration with a simple statement. Beautiful and enviable, but the lack of “German thoroughness” as described above, will undoubtedly lead to further adjustments.

Jolanda Claeys

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