Gender Recognition Change of name and gender marker BLaw Alecs Recher

Gender Recognition Change of name and gender marker

BLaw Alecs Recher

Name&Gender =Entry to Society

Without name and gender recognition trans people are marked as transgender:

ID cards, credit and bank cards School and University degrees

Leads to stigmatization in every aspect of life like exclusion from traveling, labour market, participation in social life

Name&Gender =Entry to Society

Legally 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 problems

unreasonable conditions to change name and gender

Sterilization / permanent infertility Sex reassignment surgery Divorce

Violates 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 Rights

Individual complaints, binding

Minimal standard for the 47 member states of the Council of Europe

European Court of Human Rights

Goodwin & 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 Rights

Developments 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 Rights

L. v. Lithuania (Application no. 27527/03, 2007):

Fulfiling conditions set by the state must be possible within the respective State

Council of Europe

Committee of Ministers Recommendation (2010)5, §§ 20-22

Soft law, no individual complaints, political statement

20. “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 Europe

“In 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 person’s 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 Europe

21. “(...) guarantee the full legal recognition of a person’s 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 Europe

22. “(...) 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 Europe

Discrimination on the basis of sexual orientation and gender identity (“Gross Report”), Doc. 12185, 2010, adopted by the Parliamentary Assembly

“Transgender 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 Europe

4. “Abolish sterilisation and other compulsory medical treatment as a necessary legal requirement to recognise a person’s gender identity in laws regulating the process for name and sex change”

Council of Europe

Commissioner for Human Rights

Hammarberg, Thomas: Issue Paper 2009

Moral 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 Europe

6. “Remove any restrictions on the right of transgender persons to remain in an existing marriage following a recognised change of gender”

European Union

No mandate on legal gender recognition

> No binding instruments

EU Parliament Resolution of 28 September 2011 on human rights, sexual orientation and gender identity at the United Nations

Political statement, not binding

13.”(…) for changing identity to be simplified (…)”

United Nations

No individual complaints, dialogue among member states

United Nations

CEDAW (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 Principles

Translation of UN Charter on LGBTI; moral authority

3 “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”

Yogyakarta Principles

B. “Take all necessary legislative, administrative and other measures to fully respect and legally recognise each person’s self-defined gender identity”

C. “(…) all State-issued identity papers which indicate a person’s gender/sex (…) reflect the person’s profound self-defined gender identity”

Yogyakarta Principles

D. “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 Principles

6 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 Law

UK and Ireland

change of name by deed poll or written declaration

Short 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: Portugal

Lei n.º 7/2011 from 15 March 2011- request, incl. medical diagnosis “gender identity

disorder” edited by a multidisciplinary team- at any civil registry administration- decision within 8 days

Examples: Germany

Law from 1980 “Transsexuellen-Gesetz”

Case Law, key conditions declared unconstitutional:

- No minimal age of 25- Applicable to non-german citizens- No more forced divorce- No more forced surgery

Government must revise the law – but hasn’t done so far

Examples: Austria

No more specific law

Case law - No forced divorce: VfGH (Const. Court)

V4/06, 8 June 2006- “changing a sex entry in a birth certificate

cannot be hindered by marriage”- “It seems that the same-sex marriage of the

former spouses, as a result of one‘s gender reassignment, cannot be hindered by denying the change in the birth registry.“

Examples: Austria

No 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: Precedences

Italy

Specific law from 1982 requires sterilization

Tribunale di Roma Judgment no. 5896/2011 from 11.3.2011

For the 2nd time after a precedent in 1997: change of gender marker w/o demanding GRS

Examples: Precedences

Switzerland

No specific law, courts demand sterilisation

High Court Canton Zurich, Judgment no. NC090012/U from 1.2.2011

- Sterilisation still required, but- Reversible sterilisation caused by hormonal

treatment sufficient- Forced surgery violates basic rights

Case-Studies

...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 I

Civil Code Art. 17: The government of the applicant’s County of Residence may grant a change of name in case of the applicant’s 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 illness

In case of a child under the age of 12 to the mother or to both parents if they present an agreement

In case of all other children according to the child’s wish

Thinking about the implementation in practice, where do you spot potential conflicts with human rights obligations?

Case II

 Gender Confirmation Bill

Art. 2

The change of name and legal gender based on a person’s (trans-)gender identity will be granted if

the person provides confirmation of gender identity disorder by a general practitioner or psychologist and

the person is not married.

If the applicant is married, the marriage will be turned into a civil partnership automatically.

 Marriage and Civil Partnership Act

Art. 69

The surviving partner of a deceased spouse is granted a monthly widowers pension if they have been married for at least five years before the death.

 Which parts of this regulation do you think are in accordance with the European Convention of Human Rights, which are not?