Gender recognition in the EU

Can trans people achieve equality with cis people?

In June, the European Commission published its report “Legal gender recognition in the EU: the journeys of trans people towards full equality”. It recommended that trans people should have our self-defined gender recognised in all records and documents, efficiently and in a way that respects our dignity and privacy, without any requirement for medical assessment or procedures, hormones, or sterilisation, without the fact that someone is married or a parent affecting the right, without delay for a “Real life experience”, and ensuring that whenever government identifies gender, it recognises ours. We are not there yet.

The study was based on a literature review of other research, 73 detailed telephone interviews, 865 responses to an online questionnaire, and Six focus groups in six separate countries. As the survey was begun before the UK officially left the EU, the UK was included. These direct participants are not “Seldom Heard” people- 44% had sought legal gender recognition. The report also considered the 2012 and 2019 LGBT surveys undertaken by the EU Agency for Fundamental Rights (FRA): in 2012 the FRA surveyed 93,000 LGBT people of whom 7000 were trans (7.5%), and in 2019 140,000 LGBT people of whom 20,000 were trans (14.3%). Over 2/3 were aged 34 or younger, 20% were nonbinary. In 2014 the FRA estimated 1% of the population experienced gender incongruence, but most of these do not transition (yet).

The study sought to find how trans lives were, and the discrimination we face; to consider legal gender recognition procedures (LGR), and identify any correlation between LGR and trans wellbeing. I criticise it because it did not, at least in the British case, distinguish legal gender recognition from partial recognition. It’s expensive and difficult to get a gender recognition certificate in the UK, and most people who transition don’t. It’s relatively easy to get your passport and driving licence changed to show your new name, and your photograph in the new gender. Also, we have a legal right against discrimination, though we have to enforce it ourselves.

The study sought an intersectional approach, targeting ethnic minorities. They included gender non-conforming people, whose gender expression differed from cultural norms, who they said may or may not be transgender.

Trans people objected to the idea of a “real-life experience”. This is a psychiatrist’s tool, and sometimes they would not treat someone before they experienced what living transitioned was like, in case they reverted. The idea is that transition is difficult and people will see it is not right for them. We tend to feel we are trans, we know we are trans, we should not be subjected to a probationary period, and there should only be medical treatment if we want it.

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Being trans is unusual, but not weird. It’s simply a way of being that some humans are. If humans could accept each others’ way of being, we’d all be happier.

In the EU, 59% of people agree that trans people should be able to change our documents to match our “inner gender identity”. More than 80% agree in Malta and the Netherlands, just over 10% agree in Bulgaria.

I know I am trans. I should be able to tell the registration officer, in charge of birth certificates, that I am female, and get a birth certificate stating that, no fuss, no fees. If people revert, they should be able to change their documents back. The only problem is if it is done for fraud, and that would be comparatively rare. Possibly I should have to sign a form to declare my gender, but that makes gender change something remarkable which must be explained in the records. Being female and trans is no more remarkable than being female and cis. Perhaps cis people at the age of 18 should have to sign a form saying yes, they are of that gender.

Even when countries allow self-determination, they require some statement to an authority. Denmark, Malta, Ireland, Belgium, Luxembourg and Portugal have this procedure.

In Bulgaria, Cyprus, Lithuania, Latvia, Romania, Italy and Poland, there is no legislation underpinning legal gender recognition (LGR) and the procedure is done by the courts, under human rights or EU law. In Poland the trans person sues their parents, and if they have a spouse or children they sue them too. This is costly, creates family friction and might be taken to imply the family has some entitlement to object.

In France there are no medical requirements and only limited grounds for refusal, but court approval is still required.

Some countries have medical requirements. The European Court of Human Rights has decided that where trans people have gone through medical gender reassignment, countries should recognise that. It also decided that requirements of irreversible changes, such as sterilisation, are a violation of the right to a private life. Finland currently has such requirements but the government there intends to repeal them. Sanna Marin, the 35 year old Prime Minister says “It’s not my job to identify people. It’s everyone’s job to identify themselves.” Requirements for hormones and surgery undermine our right to bodily integrity and self-determination, but twenty EU member states still have some medical requirement, even if only diagnosis by a medical professional.

This is ridiculous. Being trans is not an illness, and ICD 11 recognises that. Soon the UK government and 19 other countries will require a specialist psychiatrist to certify that I am not ill in a particular way.

Czechia, Romania, Slovakia and Cyprus still require surgery. Austria, Belgium, Estonia, Spain and Italy require hormone treatment.

The UN Human Rights Committee considers any requirement for termination of a marriage or civil partnership for gender recognition to be a breach of the International Covenant on Civil and Political Rights, but several countries still require this. 14 EU countries do not recognise same sex marriage. Greece and Estonia require divorce before LGR.

In Britain, a trans man lost his application to be registered as the father of the child he had borne. Belgium, the Netherlands and Sweden allow trans individuals to be recognised as mother, father or parent. In Malta, the law designates people as “parent 1” and “parent 2” rather than father and mother.

Several countries require a “real life experience” of living in the new gender before recognition. Britain requires two years for a gender recognition certificate, though not for a passport or driving licence. 17 countries prohibit LGR for those under 18 years old.

It is often difficult to get gender recognition if you don’t live in the country where you were born or are a citizen.

Hungary has made it illegal to change your original name. This makes transitioning difficult. It is contrary to human rights law and EU law, and a needless persecution of harmless trans people, but it stands for now.

2 thoughts on “Gender recognition in the EU

  1. “I should be able to tell the registration officer, in charge of birth certificates, that I am female, and get a birth certificate stating that, no fuss, no fees.”
    If we have complete gender equality from the government (in theory we do?) then there is no need for the government to have a record of your gender. There’s no need for it to be recorded on your birth certificate, or passport, or anywhere else. If it wasn’t recorded, you wouldn’t need it changing, so they wouldn’t need to charge a fee.

    Now, in the UK this would be fine, as we now recognize same-sex marriages. I can see countries which don’t permit those needing the information recorded, but as I support recognition for same-sex marriage then I don’t see this as a problem.

    Liked by 1 person

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