The complex issues surrounding gender and sexuality are gradually entering mainstream discourse, as highlighted by recent examples of the Belgian fashion model Hanne Gaby Odiele revealing that she is intersex, National Geographic publishing a special issue entitled ‘Gender Revolution,’ and protests against the Trump administration’s withdrawal of guidance requiring schools to treat trans students according to their gender. These three events occurred only at the beginning of 2017, and caused the terms ‘trans’ and ‘intersex’ to appear in mainstream media headlines. Even though the specific needs of trans and intersex people are different, as are the grounds for their legal protection – gender identity and sex characteristics, respectively – the challenges that both groups face still respond to questions of heteronormative gender binaries.

There are several important areas of human rights legislation that should be further developed to ensure the equal protection of trans and intersex people from discrimination and violence. For instance, gender identity and sex characteristics should be included in non-discrimination laws and enforced by relevant authorities, and crimes motivated by hate based on perceived gender identity or sex characteristics of the victim should be prohibited. What seems, however, to be especially important from the perspective of trans and intersex people, is the acknowledgment and recognition of their preferred gender identity and status. Lack thereof, or intrusive requirements to obtain one, violates multiple human rights guaranteed by international treaties such as the European Convention of Human Rights and International Covenant on Economic, Social and Cultural Rights (to name but a few), including the right to bodily integrity, the right to privacy and family life, and the right to the highest attainable standard of health.

Although trans issues are more established in political and legal discourse in Europe, the intersex rights movement is developing rapidly. Gender identity as grounds for anti-discrimination protection goes hand in hand with sexual orientation (although the level of protection differs – gender identity is not yet explicitly prohibited as grounds for discrimination in European Union (EU) treaties, while sexual orientation is prohibited) and ‘T’ has always been included in the LGBT acronym. Also, Transgender Europe, a pan-European umbrella organization advocating for the equal rights of trans people, has been active since it was established in 2005. Its intersex counterpart, Organisation Intersex International Europe, was only established in 2012 and with little consensus about the legal grounds that would protect intersex people from discrimination. Now the ‘I’ is often used together in the LGBTI acronym and framing advocacy in terms of ‘sex characteristics’ appears to be the most effective means to address the non-discrimination of intersex people.

These achievements, from a legal and institutional perspective, were reached several years ago, thanks to the enormous work done by intersex human rights defenders. The momentum for legislation addressing intersex issues started with several national-level reports, which for the first time analysed the situation of intersex people and brought this topic to the political agenda. In 2012, for example, both the German Ethics Council and Swiss National Advisory Commission on Biomedical Ethics published Opinions on intersexuality, which emphasized serious human rights issues faced by intersex people because of social expectations to conform to one of two sexes. The Swiss Opinion also emphasized that sex assignment surgeries should only be performed upon the informed consent of the person concerned. This approach was followed by the Parliamentary Assembly of the Council of Europe (CoE), which in resolution 1952(2013) called on 47 CoE member states to protect the physical integrity of intersex minors.[i]

Later, in 2015, Europe’s leading human rights governmental organisations recognized the needs of intersex people and provided, for the first time ever, an insight into the real-life problems intersex people face. The CoE’s Commissioner for Human Rights, Nils Muižnieks, published a paper on ‘Human rights and intersex people,’ while the EU’s Agency for Fundamental Rights (FRA) issued a paper on ‘The fundamental rights situation of intersex people’. The former report provided clear recommendations to CoE member states, including that “Member states should end medically unnecessary ‘normalizing’ treatment of intersex persons” and that “Member states should facilitate the recognition of intersex individuals before the law.”[ii]

The FRA’s research revealed that very often there are neither standards nor protocols in many EU member states regarding intersex children. For example, when a child is born with indeterminate sex, “normalizing” surgery would be advised so as to assign the child a gender based on the gender binary. The report showed the scale of “normalizing” surgeries and the controversies about the lack of informed consent for such surgeries.

Now the advocacy and research by the activists and legal researchers with the support of international organisations, which both resulted in a set of recommendations on how to improve the situation of intersex people, must be translated into national laws across Europe. Recently, for instance, the European Parliament called on member states to ‘prevent, ban and prosecute the forced sterilization […] a phenomenon that affects in particular […] transgender and intersex persons’.[iii] So far, however, only Malta has explicitly banned unnecessary sex assigning operations on intersex infants and children. What remains the biggest challenge is that the laws in Europe function within the gender binary, which only allows individuals to choose between female and male. Some EU member states allow for an ‘X’ marker (Germany) or for the postponement for specification of gender (the Netherlands, Portugal) but these are temporary solutions, which means that at some point everyone must be assigned to one of two sexes.

Regarding trans peoples’ rights, human rights defenders and international organisations have previously called on European governments to make changing name and gender in official documents a quick, transparent, and accessible process.[iv] This seemingly achievable request is still not realized in many countries. Even though the European Court of Human Rights ruled in A.P., Garçon and Nicot v. France (6 April 2017) that requiring trans people to undergo sterilization before their gender identity is legally recognized violates the European Convention of Human Rights, 20 countries in Europe, including 11 EU member states, still demand sterilization. Other intrusive requirements are also still in force, including 36 countries requiring diagnosis of a mental disorder, 21 countries requiring gender reassignment surgery, and 22 countries refusing to recognize the gender of a married trans person (such person would first have to divorce).[v]

In 2014, Denmark became the first European country (and second worldwide, after Argentina in 2012), to adopt the self-determination model of legal gender recognition, a solution strongly advocated for by the human rights defenders. According to this law, for the desired gender to be legally recognized a person over 18 years old needs only apply for new documents which will reflect their preferred gender and then reapply after a reflection period of 6 months.

In 2015, Malta adopted a law that better addressed the needs of trans people in this regard, notably it allowed for self-determination, and for faster procedures before the notary. It also allowed for the recognition of the gender of a minor (in this case, however, a court is involved). Moreover, both Malta and Denmark depathologized trans identities in 2016, which means that ‘trans identities should no longer be viewed or characterised as psychologically abnormal’.[vi]

At present, Ireland and Norway have also adopted the self-determination model. The Irish Gender Recognition Act allows for individuals to apply for a gender recognition certificate. It requires, however, that the applicant be over the age of 18 years when filing and that this person is not married or in a civil partnership. In Norway, trans people aged 16 and older can have their gender recognised without any compulsory requirements. Trans children and young people aged 6 to 16 can apply with their parents’ permission. If the parents disagree, an external body decides based on the child’s best interest.

These four examples stand in stark contrast with the situation in some of the other European countries. Intrusive requirements, such as sterilisation or diagnosis of mental disorder, only add to the pathologization of trans people and prevent them from enjoying equal rights, making protection against discrimination on the grounds of gender identity, introduced in some European countries, elusive in practice.

Gradually, however, societies and policy makers are becoming more aware of the harmful consequences of forcing people into socially constructed and legally enforced gender binaries, which often fail to reflect biological and psychological lived realities. This is still evident in cases of “normalizing” surgeries being performed on children, or the pathologization of trans people by requiring genital surgeries to legally recognize an individual’s self-determined gender (identity). To better protect trans and intersex people, laws across Europe should reflect these individuals’ reality and be adapted to address their needs, rather than forcing trans and intersex people to conform to the unnatural, socio-legal gender constructs. Legal gender recognition based on self-determination in the case of trans people, and the prohibition of unnecessary “normalising” surgeries on intersex people, would be a good starting point. Perhaps the next step should be to recognize that there are alternate options to the male-female binary, as already acknowledged for instance in Australia and New Zealand, where an individual can be registered and recognised by the authorities as having “indeterminate” sex. Ultimately however, we will have to answer the following question: do we really need to register sex?

Views presented in this article are solely of the Author.

Tomasz Dudek is a legal researcher based in Vienna (Austria) specializing in non-discrimination law and LGBTI rights. Currently with the European Law Institute, he has previously consulted for ILGA-Europe, and worked for the Equality and Citizens’ Rights Research Department of the European Union Agency for Fundamental Rights (FRA), the Polish Ombudsperson Office, and various human rights NGOs, including Campaign Against Homophobia and the Helsinki Foundation for Human Rights. He holds an MA (cum laude) in international relations and law from the University of Warsaw, Poland.

[i] The Council of Europe is a separate organization from the 28-member European Union.

[ii] Council of Europe Commissioner for Human Rights, Human rights and intersex people, April 2015, p. 9.

[iii] European Parliament (2016), Report on promoting gender equality in mental health and clinical research (2016/2096(INI)), para. 47.

[iv] Council of Europe, Committee of Ministers, Recommendation CM/Rec(2010)5 to Member States on measures to combat discrimination on grounds of sexual orientation or gender identity, 31 March 2010, para. 21.

[v] Trans Rights Europe Index 2017, http://tgeu.org/wp-content/uploads/2017/05/Index-online.png (accessed on 23.05.2017).

[vi] http://tgeu.org/malta-depathologises-trans-identities/ (accessed on 23.05.2017).

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