Questioning Transphobia

I wrote last month about the decision by the conservative Christian Democrat party government (along with the nationalist Sweden Democrat party) to retain a 1972 gender recognition law under which TS/TG and gender variant people who want to change their legal gender are required to be sterilised. The requirement was a violation of the European Convention on Human Rights, which is enacted as law in Sweden.

There was an international outcry at the loss of the opportunity to bring the legislation up to date: in Sweden, the law is only reviewed every forty years. Advocacy groups and activists from around the world protested the decision and an online petition to the Swedish Prime Minister received over 77,000 signatures.

Now, via Ulrika Westerlund, President of RFSL (the Swedish Federation for Lesbian, Gay, Bisexual and Transgender Rights), I learn that the campaign appears to have been successful, with the conservative party which was blocking the reform to remove the criteria apparently having changed its mind.

According to a statement in Debatt:

Everyone is equal here. From the Christian Democrats’ side, we have been clear that the issue of sterilization at sex change – as well as other issues related to children – requires careful thought and analysis. Many transsexuals are met with hatred and fear, in violation of the principle of equal worth of all – the hallmark of Christian tradition of ideas and thus the Christian Democrats. Therefore, it is our opinion that the requirements for sterilization at sex change should be abolished, writes Christian Democratic party leadership.

This is very good news indeed for TS/TG and gender variant people in Sweden who wish to change their legal gender, although the underlying issue (linking people’s legal identity to their medical status) remains unexamined.

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As a footnote, it should also be remembered that Sweden isn’t the only member state of the European Union requiring TS/TG and gender variant people to undergo surgery before they can change their legal identity. Published work by the TGEU’s TVT Project suggests at least eight other countries – Denmark, France, Ireland, Italy, Netherlands, Poland, Slovakia, Spain – where legal change of gender is contingent upon GRS/sterilisation or Gender Reassignment Therapy and we can only hope that these countries will follow Sweden’s example. (Note: the TVT Project’s list is not definitive and is subject to ongoing research and updates).

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Image: transgender symbol on blue and yellow background compiled from public domain images in Wikimedia Commons (here and here) by Helen

Last week, the government of Sweden took the decision to retain a 1972 gender recognition law under which TS/TG and gender variant people who want to change their legal gender are required to be sterilised. According to Ulrika Westerlund, President of RFSL (the Swedish Federation for Lesbian, Gay, Bisexual and Transgender Rights), this was done to satisfy the conservative Christian Democrat party who, along with the nationalist Sweden Democrat party, are the only two groups in favour of the law. I gather that Prime Minister Fredrik Reinfeld was fully aware that this reqiurement is a violation of the European Convention on Human Rights which is enacted as law in Sweden.

The Council of Europe’s Commissioner for Human Rights, Thomas Hammarberg, has made a very clear stand on the issue, that forcing TS/TG and gender variant people to undergo unwanted medical interventions in order to change their legal gender is a breach of human rights. The Comittee of Ministers of the Council of Europe, representing 47 membership states has taken a similar stand. The bitter irony in all this is, of course, that while Sweden is often considered to be in the forefront of human rights advocacy and implementation, this decision would seem to be a huge step backwards.

Concerns have been voiced at the loss of the opportunity to bring the legislation up to date: in Sweden, the law is only reviewed every forty years and it already creates at least one anomaly, in that the present law also requires TS/TG and gender variant people to be single in order to receive legal gender recognition – and this in a country which already has same sex marriages. Courts have previously overruled this requirement, but nevertheless it is still enshrined in the law. Additionally, there is the risk of setting a precedent and this is a particular worry for some TS/TG and gender variant people in Finland where the gender equality ombudsman has recommended that Finland should remove a similar requirement from the Finnish law. Finland also has a Christian Democratic Party in its Government which has already blocked a reform giving same sex couples the right to marry.

Although Sweden is not alone in upholding the requirement of forced sterilisation (the Netherlands, Denmark and France are other European countries with similar legislation [source]), the outcry on various TS/TG forums was immediate and international; amongst others, Human Rights Watch, the European Parliament Intergroup on LGBT Rights and TGEU and ILGA-Europe have all made formal statements of protest to the Swedish Prime Minister and Parliament, calling for the immediate abolition of the forced sterilisation requirement for legal purposes.

Meanwhile, All Out, an activist group advocating for improvements in the lives of LGB & T people worldwide, has joined with RFSL to launch an online petition to let the Swedish Prime Minister know that this legislation is unacceptable. The petition currently has over 36,000 signatories and is aiming for at least 50,000. If this is something you feel you can support, then please sign – and distribute the information and the link as widely as you can.

http://allout.org/stop_forced_sterilization/

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[Image: transgender symbol on blue and yellow background compiled from public domain images in Wikimedia Commons (here and here) by Helen]

Press release from Masen Davis, Executive Director at the Transgender Law Center:

WE DID IT!

Governor Brown just signed two important transgender rights bills into law. The first, the Gender Nondiscrimination Act, brings transgender rights out of the closet in California – making “gender identity and expression” its own protected category at work, at school, in housing, at public accommodations and in other settings. The second, the Vital Statistics Modernization Act, makes it easier for transgender people to get a court-ordered gender change and updated birth certificate. It’s a big day for transgender folks in California!

We are holding a special briefing MONDAY October 10th, at 6:00 PM to update everyone on the impact of these bills. Click here to RSVP.

*We will be holding a separate Spanish language briefing later this week. For more information on this call, click here e-mail Maceo Persson.

These laws have been years in the making. Through our statewide survey of almost 650 transgender Californians, the 1,200 calls that our legal team receives annually and our conversations with you at events around the state, we discovered two problems that continued to resurface:

1. We found that California’s nondiscrimination laws were often not accessible to those who needed them the most. Employers, health care providers, housing authorities – even transgender and gender non-conforming people – were unaware that it is illegal to discriminate against transgender Californians. Our legal rights were hidden within the definition of “gender”, leaving many people in the dark about their rights, and many institutions out of compliance responsibilities. This had an especially severe impact on low-income and trans communities of color who tend to face employment discrimination at higher frequencies within transgender communities.
2. We heard from many transgender people who were unable to change their birth certificates and other identity documents due to financial and medical barriers. Onerous and outdated standards for court-ordered gender changes created unfair and damaging barriers that disproportionately impacted trans people of color, immigrant trans people, low-income trans people and others who could not overcome the many hurdles to securing basic identity documents. These are identity documents we all need to work, travel, and be our authentic selves.

With the help of your input and our partners at Equality California and GSA Network, we came up with two legislative solutions to these problems.

• The Gender Nondiscrimination Act (AB 887) takes existing protections based on gender and spells out “gender identity and expression” as their own protected categories in our nondiscrimination laws. By making these protections explicit, people will more clearly understand California’s nondiscrimination laws, which should increase the likelihood that employers, schools, housing authorities, and other institutions will work to prevent discrimination and/or respond more quickly at the first indications of discrimination.
• The Vital Statistics Modernization Act (AB 433) will alleviate the confusion, anxiety and even danger that transgender people face when we have identity documents that do not reflect who we are. The bill will streamline current law and clarify that eligible petitioners living or born in California can submit gender change petitions in the State of California. The Vital Statistics Modernization Act conforms California’s standards to the standards set by the United States Department of State for gender changes on passports, and it makes common-sense changes to the law that ensure the process is simple for qualified petitioners to navigate.

Today these bills have become law, and this huge victory belongs to you! This legislative session, hundreds of transgender, gender non-conforming and ally Californians took action — educating lawmakers, reaching out to the governor and sharing their stories with the media.

Our victory is a testament that California is at its best when we work together to realize the ideal that everyone should be treated fairly and equally. The barriers that transgender people face are life threatening and we applaud Governor Brown, Assemblymember Atkins and Assemblymember Lowenthal for their tremendous leadership to remove some of the obstacles that prevent transgender Californians from living as our authentic selves.

I hesitate to jump into these shark-infested waters, but here goes.

I certainly have my own opinion on the “transsexual” vs. “transgender” debate that has ignited many a flame war on the internet over the last few months between those who want to separate our community based on those who have had or, at least, want to have, SRS, from everyone else, but I’m not going to express that here. Instead, I’m going to take a position that I’ve never seen expressed by anyone else, although some have come close. My position comes from my background as an attorney and my understanding of how anti-discrimination laws are written and are intended to operate.

Here’s what I know to be true: the dispute about who is transsexual and who isn’t is irrelevant to the fight for protections for transsexual, transgender, genderqueer and every other gender variant or gender nonconforming person in this country. Why? Because of how anti-discrimination laws are written for both practical and constitutional reasons.

Read the rest of this entry »

A couple of months ago I reported on the Irish Government’s decision to drop its challenge to a High Court declaration that Irish law on transgender rights is in breach of the European Convention on Human Rights.

The challenge had originally been brought as long ago as 1997 by Dr Lydia Foy and in June 2010 she finally won her battle for legal recognition as a woman, and for a birth certificate that reflects that reality.

Now the Commissioner for Human Rights of the Council of Europe, Thomas Hammarberg, has published a Human Rights comment on the final settlement of the case in Ireland, welcoming the decision of the Irish Government to introduce legislation recognising transgender persons in their preferred gender, including the provision of new birth certificates

Commissioner Hammarberg goes on to highlight issues of concern for many transgender people in Europe, such as the need to be diagnosed with an mental disorder, or being forced to be steriliszed and divorced in order to obtain official recognition of their legal status.

Ireland is not the only country where transgender persons have faced obstacles in obtaining legal recognition of their preferred gender. Some Council of Europe member states still have no provision at all for official recognition, leaving transgender people in a legal limbo. Most member states still use medical classifications which impose the diagnosis of mental disorder on transgender persons.

Even more common are provisions which demand impossible choices, such as the “forced divorce” and the “forced sterilisation” requirements. This means that only unmarried or divorced transgender persons who have undergone surgery and become irreversibly infertile have the right to change their entry in the birth register. In reality, this means that the state prescribes medical treatment for legal purposes, a requirement which clearly runs against the principles of human rights and human dignity.

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All countries need to develop expeditious and transparent procedures for changing the name and gender of a transgender person on official documents, in accordance with the case-law of the European Court of Human Rights.

The full text of Commissioner Hammarberg’s comment may be found at this link

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Curtsey to Richard at TGEU for the heads-up.