Gender Recognition Change of name and gender marker
BLaw Alecs Recher
Name&Gender =Entry to SocietyWithout name and gender recognition trans people are marked as transgender:ID cards, credit and bank cardsSchool and University degreesLeads to stigmatization in every aspect of life like exclusion from traveling, labour market, participation in social life
Name&Gender =Entry to SocietyLegally speaking: Gender identity: specially sensitive aspect of private life Positive obligation to gender recognition is a fundamental right + Conditions and procedure have to be in accordance with fundamental rights
Key problemsunreasonable conditions to change name and genderSterilization / permanent infertilitySex reassignment surgeryDivorceViolates basic human rightsPhysical integrity (UDHR Art. 5)Choice of medical interventions
Protection of the marital union, rights of the partner and evt. children
European Court of Human RightsIndividual complaints, binding Minimal standard for the 47 member states of the Council of Europe
European Court of Human RightsGoodwin & I. (Application no. 28957/95, 2002):- positive obligation to full gender recognition post-operative, incl. birth certificate- States margin of appreciation to define the requirements- Right to marry according to the legal gender- Convention is interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory.
European Court of Human RightsDevelopments in non-legal fields have to be taken into account:this Court has since 1986 emphasised the importance of keeping the need for appropriate legal measures under review having regard to scientific and societal developments Goodwin Judgment, 92> Recent developments like WPATH Standards of Care 7?
European Court of Human RightsL. v. Lithuania (Application no. 27527/03, 2007): Fulfiling conditions set by the state must be possible within the respective State
Council of EuropeCommittee of Ministers Recommendation (2010)5, 20-22Soft law, no individual complaints, political statement20. Prior requirements, including changes of a physical nature, for legal recognition of a gender reassignment, should be regularly reviewed in order to remove abusive requirements.
Council of EuropeIn some countries access to gender reassignment services is conditional upon procedures such as irreversible sterilisation, hormonal treatment, preliminary surgical procedures and sometimes also proof of the persons ability to live for a long period of time in the new gender (the so called real life experience). In this respect, existing requirements and procedures should be reviewed in order to remove those requirements which are disproportionate. It should be noted, in particular, that for some persons it may not possible, for health reasons, to complete every hormonal and/or surgical step required. Explanatory memorandum
Council of Europe21. (...) guarantee the full legal recognition of a persons gender reassignment in all areas of life, in particular by making possible the change of name and gender in official documents in a quick, transparent and accessible way (...) corresponding recognition and changes by non-state actors with respect to key documents> Obligation not limited to state actors!
Council of Europe22. (...) ensure that, once gender reassignment has been completed and legally recognised (...) the right of transgender persons to marry a person of the sex opposite to their reassigned sex is effectively guaranteed.> Same as Goodwin judgment
Council of EuropeDiscrimination on the basis of sexual orientation and gender identity (Gross Report), Doc. 12185, 2010, adopted by the Parliamentary AssemblyTransgender people are refused gender reassignment treatment or told they cannot register their new gender, contributing to high rates of suicide in this group.These human rights violations must end
Council of Europe4. Abolish sterilisation and other compulsory medical treatment as a necessary legal requirement to recognise a persons gender identity in laws regulating the process for name and sex change
Council of EuropeCommissioner for Human RightsHammarberg, Thomas: Issue Paper 2009Moral authority
3. Develop expeditious and transparent procedures for changing the name and sex of a transgender person on birth certificates, identity cards, passports, educational certificates and other similar documents;
Council of Europe6. Remove any restrictions on the right of transgender persons to remain in an existing marriage following a recognised change of gender
European UnionNo mandate on legal gender recognition> No binding instrumentsEU Parliament Resolution of 28 September 2011 on human rights, sexual orientation and gender identity at the United NationsPolitical statement, not binding13.() for changing identity to be simplified ()
No individual complaints, dialogue among member states
United NationsCEDAW (Convention on the Elimination of All Forms of Discrimination against Women):The Committee also expresses concern at specific health problems experienced by transgender women, in particular the compulsory sterilization they should undergo to get their birth certificates changed Concl. Obs., Netherlands, CEDAW/C/NLD/CO/5, 5. Februar 2010, 46
Yogyakarta PrinciplesTranslation of UN Charter on LGBTI; moral authority3 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 persons gender identity
Yogyakarta PrinciplesB. Take all necessary legislative, administrative and other measures to fully respect and legally recognise each persons self-defined gender identity
C. () all State-issued identity papers which indicate a persons gender/sex () reflect the persons profound self-defined gender identity
Yogyakarta PrinciplesD. Ensure that such procedures are efficient, fair and non-discriminatory, and respect the dignity and privacy of the person concerned
E. Ensure that changes to identity documents will be recognised in all contexts where the identification or dissaggregation of persons by gender is required by law or policy
Yogyakarta Principles6 F. Ensure the right of all persons ordinarily to choose when, to whom and how to disclose information pertaining to their () gender identity, and protect all persons from arbitrary or unwanted disclosure, or threat of disclosure of such information by others
Examples: Common LawUK and Irelandchange of name by deed poll or written declarationShort and inexpensive procedure, starting by 5-10 No evidence requirement for change of name and title But: change of birth certificate under Gender Recognition Act (2004)
Examples: PortugalLei n. 7/2011 from 15 March 2011request, incl. medical diagnosis gender identity disorder edited by a multidisciplinary teamat any civil registry administrationdecision within 8 days
Examples: GermanyLaw from 1980 Transsexuellen-GesetzCase Law, key conditions declared unconstitutional:No minimal age of 25Applicable to non-german citizensNo more forced divorceNo more forced surgery
Government must revise the law but hasnt done so far
Examples: AustriaNo more specific lawCase law No forced divorce: VfGH (Const. Court) V4/06, 8 June 2006changing a sex entry in a birth certificate cannot be hindered by marriageIt seems that the same-sex marriage of the former spouses, as a result of ones gender reassignment, cannot be hindered by denying the change in the birth registry.
Examples: AustriaNo requirements for surgery: VfGH (Const. Court) 03.12.2009, B 1973/08 and VwGH (Admin. Court) 27.02.2009, 2008/17/0054- Relevant is gender identity (psychological feeling of belonging to the other gender)- This feeling will most likely not change anymore and must be expressed by a clearly visible harmonisation with the expression of the opposite gender
Examples: PrecedencesItaly Specific law from 1982 requires sterilizationTribunale di Roma Judgment no. 5896/2011 from 11.3.2011For the 2nd time after a precedent in 1997: change of gender marker w/o demanding GRS
Examples: PrecedencesSwitzerlandNo specific law, courts demand sterilisationHigh Court Canton Zurich, Judgment no. NC090012/U from 1.2.2011Sterilisation still required, butReversible sterilisation caused by hormonal treatment sufficientForced surgery violates basic rights
...and now it is your turn!
Case discussion (20)Are there discriminatory aspects in this case? If yes, what are they? Which legal tools could be used?
Case ICivil Code Art. 17: The government of the applicants County of Residence may grant a change of name in case of the applicants severe discomfort with its name. Civil Code Art. 53: An entry in the civil register that has been wrong from the beginning or is not corresponding with the person anymore may be corrected by the court. Marriage Code Art. 376: In the case of the parents divorce, the parental responsibility is given:In case of a baby always to the mother unless she suffers from severe illnessIn case of a child under the age of 12 to the mother or to both parents if they present an agreementIn case of all other children according to the childs wishThinking about the implementation in practice, where do you spot potential conflicts with human rights obliga