Transgender and Legal Issues Nicolas J' Beger for ILGAEurope

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Transgender and Legal Issues Nicolas J. Beger
for ILGA-Europe
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Terms

• Transsexuality as identity category
• Gender identity as legal category
• Transgender and gender expression are not a
• legal category usually
• There is no protection from the binary gender
• order

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Legal Situation in Europe
Council of Europe

• ECHR applies to all
• Monitor for change in
• national law
• 5 decisive cases

National Law
Transgenders

• Legal competence
• Option 1 no gender reassign-
• ment possible
• Option 2 individual court or
• administrative solutions
• Option 3 patchwork legislation
• Option 3 specific legislation

European Union

• Anti-Discrimination
• Charter of Fundamental
• Rights
• 2 Court Cases ECJ

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Main Issues of National Law

• National legislation is very different oldest
  law Sweden 1972, most advanced law UK 2004
  ranges from statute law to registry law, case
  law, and administrative rules specific
  legislation rare (Germany, Italy, Finland, NL,
  Sweden, Turkey, UK)
• Problems
• Some do not offer any legal changes.
• Some offer individualised solutions that leave
• people to the mercy of individuals.
• Some make the name change a huge burden.
• Almost all require irreversible infertility.

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Main Issues of National Law

• Almost all force treatment and surgery.
• Almost all force divorce, some do not allow
  marriage.
• All have at least some restrictions on parenting
  (birth certificate of the children).
• Almost all unduly mix legal requirenments and
  medical treatment.
• None delivers adequate and timely health
  coverage.
• Data protection not always assured.
• Social security and pension rights are a big
  issue.
• Death and succession often not clarified.
• Treatment of non-national often unclear.

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Gender Recognition Act

• June 2004 after 4 cases at ECHR (Christine
  Goodwin)
• Request with 2 medical certificates (own choice,
  1 specialist)
• Complete change with all rights and obligations
• Clearer division between law and medicine no
  legally prescribed infertility, no forced hormone
  treatment
• Forced divorce, but later marriage possible (KB
  case ECJ)
• Birth certificate of children remains, but legal
  parentage possible (XZY)

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ECHR Cases

• 7 Cases 9 EComHR
• 5 important cases
• B v France (1992)
• XZY v UK (1997)
• Sheffield Horsham v UK (1998)
• Christine Goodwin v UK (2002)
• van Kück v Germany (2003)
• No legal obligation but moral pressure

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ECJ Cases

• Cases in relation to employment law and the
  gender directives
• P v S and Cornwall County Council (1996)
• Lisa Grant v South West Trains LtD (1998)
• KB v National Health Service Pension Agency and
  the Secretary of State for Health (2004)

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Possibilities for future work

• Ways of connecting EU and national law can we
  dream up a European decision that prohibits
  irreversible infertility? That assures the right
  to legal gender reassignment? That prohibits the
  conflation of health care and law?
• Health care access to adequate treatment? Access
  to care in other MS? Coverage that is a right not
  an individual fight? Reduction of the power of
  psychiatrists?
• Deletion from the WHO list of psychiatric
  disorders?
• Collection of legal data, data on discrimination
  cases?
• Anti-discrimination and employment law.
• Bringing the issue onto the agenda of EU, NGOs
  etc.
• Supporting ECHR cases.

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Thanks for listening!

• Questions Welcome!