by Eleni Giannakou, Member of the International Law Research Team
This paper is inspired by the recent case before the European Court of Human Rights, Y v. France. The Court is called to rule on the issue of non-binary sex/gender markers in official documents, a decision whose importance would outreach sex/gender non-conforming people’s interests and affect everyone. The case offers an opportunity to discuss the issue of diversity and self-determination in international law. The following analysis explains why legal gender recognition beyond the binary is an important step for advancing gender justice, but also underlines that gender-neutral language cannot be the only or final step.
Providing gender holds great importance in humans’ identities and relationships and self-determination of gender should be protected, no matter each society’s dominant gender norms. Given that there are long standing human rights, from which the right to gender recognition can be derived, human right treaties and relevant past international law cases will be presented to support our argument. Furthermore, with reference to Y v. France case, the importance and far-reaching consequences of gender recognition will be examined.
The cornerstone of this analysis is the principle of self-determination and personal autonomy; fundamental components of international human rights law and western philosophy.
Each person has an internal experience of gender, which does not necessarily correspond with the sex assigned at birth and is called “gender identity”. Some individuals cannot be classified according to the medical norms and are called intersex. Others have a gender identity and/or a gender expression that is different from the sex they were assigned and are covered under the term trans. This expression may not correspond either to standard male or female and it is manifested through presentation (e.g. self-referring language, clothing, etc.) or body modifications. People whose identity is neither exclusively male nor female, or is a combination of both, or goes beyond genders, are identified as non-binary (M. Brink, P.Dunne, November 2018). For the purposes of this text, all the above will be mentioned as sex/gender non-conforming people. Attributing the right to hold government-issued identity documents (IDs) that match one’s gender identity is called the right to gender recognition (Lau, 2017).
2. Gender recognition in international law texts and jurisprudence
2.1. International Human Rights law and jurisprudence
Starting with ending pathologisation and medicalization of sex/gender non-conforming people, states and international bodies are slowly but steadily interpreting international human rights’ laws in relation to sexual orientation and gender identity.
There is a general change in states’ practice expressed by creating appropriate administrative procedures of legal gender recognition, as well as by introducing the non-binary sex/gender category (P. Cannoot, M. Decoster, 2020). Namely, not only the UN High Commissioner for Human Rights (OHCHR), but also the UN Independent Expert on sexual orientation and gender identity have voiced support for the self-determination approach to gender recognition. Similarly, both the UN Human Rights Committee (HRC) and the UN Committee on the Elimination of Discrimination Against Women have advised states to eliminate abusive conditions for gender recognition (Lau, 2017). More specifically, the UN HRC held that the Australian requirement to be unmarried when changing birth certificates violates the International Covenant on Civil Political Rights (ICCPR) (Toonen v. Australia, 1994). In G v Australia, the Committee stated that the divorce as a requirement before legal gender recognition is incompatible with ICCPR guarantees. Additionally, the OHCHR underlines that states should “facilitate legal recognition of the preferred gender of transgender persons and establish arrangements to permit relevant identity documents to be reissued reflecting preferred gender and name, without infringements of other human rights.”(Report OHCHR, 2011)
This paper supports the claim that there is no need to create a new set of LGBT-specific rights in order to protect and recognise sex/gender non-conforming people. For instance, the OHCHR upheld that ‘the prohibition against discrimination under article 26 [of the ICCPR] encompasses discrimination on the basis of […] gender identity, including transgender status”. In general, the States are already legally obliged to safeguard the human rights of all people, including LGBT (Lau, 2017). More specifically, the individual’s right to “free development of his personality” is found in article 22 of the Universal Declaration of Human Rights. Consequently, granting the right to gender recognition ensures respect of pre-existing rights.
To this respect, the soft law’s influence is also crucial. The Yogyakarta Principles +10 – which affirm binding international legal standards in relation to sexual orientation and gender identity – support the “application of international human rights law in relation to sexual orientation and gender identity”, meaning that they promote a lesbian, gay, bisexual, transgender, queer, intersex and asexual (LGBTQIA+) inclusive reading of existing standards of international human rights law (International Commission of Jurists (ICJ), 2017).
Specifically, the 3rd principle is “the right to recognition before the law” where it is stressed that states must “take all necessary legislative, administrative and other measures to ensure that procedures exist whereby all State-issued identity papers which indicate a person’s gender/sex (…) reflect the person’s profound self-defined gender identity” and “ensure that such procedures are efficient, fair and non-discriminatory, and respect the dignity and privacy of the person concerned”. The Yogyakarta Principles enjoy great authority around the world, which is demonstrated by the fact that they have been cited by international Courts. For example, the Inter-American Court of Human Rights (IACtHR) issued an advisory opinion which held that all individuals have the right to have their name and official documents amended in the light of their gender identity, solely on the basis of self-determination, and therefore without having to comply with any medical requirements (Advisory Opinion, OC-24/17). The IACtHR is more progressive than its ECtHR- counterpart, since it attributes greater value to the self-determination approach to gender recognition. This high protection and respect of the said approach has been also previously stated by the Inter-American Commission on Human Rights (IACommHR). The IACommHR commended the Argentina jurisdiction, in which system the right to gender recognition solely derives from self-determination, thus “recognize[s] the right to identity of trans persons in a way that does not pathologize trans persons” (Lau, 2017).
As far as the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) is concerned, the aim seems to be the elimination of discrimination against (only assigned at birth as) women, which is disappointing. The Committee which monitors the implementation of the Convention and is it’s principal interpreter, does not yet read in the object and purpose of the Convention as well as in article 5a -which is about ‘cultural patterns of conduct’- the possibility to expand the protection in order to include LGBTQIA+ rights (R. Holtmaat, P. Post, 2015).
2.2. European Law and jurisprudence
The ECtHR considers that ‘elements such as gender identification, names, sexual orientation and sexual life fall within the personal sphere protected by Article 8’ (ECtHR, 2015, Y.Y. v. Turkey), as gender identity is an essential aspect of self-determination . Moreover, in PV v Spain (2010), the ECtHR held that, ‘transsexuality is a notion which is, without doubt, covered by Article 14” and later, in Identoba and Others v Georgia (2015), the ECtHR used even more inclusive concepts and terminology, affirming that Article 14 ECHR ‘duly covers questions related to … gender identity’.
Moreover, the Council of Europe Parliamentary Assembly (PACE) Resolution 1728 (2010) and Resolution 2048 (2015), and Resolution 2191 (2017) have contributed to reforms in multiple countries and nowadays, sex/gender registration is becoming more and more a matter of self-determination. People in many states can select gender markers on government papers, with or without the binary option, thanks to the Resolution 2048. This Resolution not only urged states to provide quick, transparent, and accessible procedures for changing the name and registered sex, but also recommended broadening categories with a third gender option. Resolution 2191 was more specific regarding the range of options available.
Sex/gender non-conforming people have made numerus claims for protection before the ECtHR. One landmark case is the Goodwin v. UK (2002), in which the Court established a positive obligation to implement a procedure for legal gender recognition. Additionally, in A.P., Garçon et Nicot v. France (2017), the Court ruled that all persons are and should be free to define their own gender identity, because gender is ‘an essential aspect of intimate identity of all persons, if not of their existence’. This importance was acknowledged also in S.V. v. Italy (2018), when the Court emphasised ‘the particular importance of matters relating to a most intimate part of an individual’s life, namely the right to gender identity, a sphere in which the Contracting States have a narrow margin of appreciation’.
The underlying principle of personal autonomy was put forward in order to interpret the necessary guarantees (Van Kück v. Germany, 2003) and the need for ‘quick, transparent and accessible procedures’ was expressly mentioned in X v. the former Yugoslav Republic of Macedonia and Y.T. v. Bulgaria.
The ECtHR has been criticized as cautious and not adequately in line with soft law standards, because it allows restrictive conditions, such as forced medical examination, mental health diagnosis, and unmarried state for evidence of the existence of the “syndrome of transsexuality” (A.P., Garçon, Nicot v. France,2017). Prohibiting sterilisation surgeries is not enough to depathologise trans persons. Trans are already socially stigmatised by a highly medicalised picture, so jurisprudence should fully adopt a self-determination approach in order to guarantee their respect and equal protection.
3. The importance of gender recognition beyond the binary.
3.1. Human rights of gender non-conforming people.
Given that gender is a vital part of personality, there are many human rights that are affected and possibly violated if gender recognition is not respected. This analysis focuses on (1) personal autonomy, (2) informational privacy, (3) health and (4) bodily integrity. Reference will further be made to the proportionality principle.
3.1.1 Personal autonomy
Forcing individuals to determine their gender permanently according to limited categories is imposing a false identification in terms that many individuals cannot relate to. Furthermore, taking into consideration the principle of respect for childrens’ autonomy under Article 12 of the Convention on the Rights of the Child (CRC), rigid age limits as additional requirements to gender recognition seem incompatible with the self- determination principle. Children remain confronted with identity documents that do not correspond to their experienced reality, potentially exposing them to stigma, bullying and discrimination. In other words, it could be questioned whether the sex/gender registration frameworks of even the most progressive states fully take into account the child’s best interests as foreseen by Article 3 of the CRC (P. Cannoot, M. Decoster, 2020).
People should have control over personal sensitive information (Art. 17 of the ICCPR). However, if they are forbidden from self-identifying their gender on their IDs, their non-corresponding gender will be disclosed. Hence, gender non-conforming people will be exposed to discrimination and persecution. For instance, a person with a masculine performativity of gender (men’s clothing, masculine hairstyle, body attitude etc) is regarded by others as a man. He may even have undergone medical treatment to comport his body with the physical conceptions of being a man, as well as legally changed his name. In case that he holds an ID that marks him as female, the ID will disclose his transgender status (Lau, 2017).
The right to health covers both mental and physical health (International Covenant on Economic, Social and Cultural Rights (ICESCR)). Following the previous example of the transgender man, he may had been given medical treatment to address the discomfort initiated by a discrepancy between his gender identity and his sex assigned at birth. The distress relieved by the treatment could only be meaningful if others treat him as a man. On the contrary, if others, based on the information on his ID, consider and talk to him as female, for example on a phone-interview for a job, gender dysphoria continues (Lau, 2017).
3.1.4 Bodily Integrity
According to the ECtHR, the right to bodily integrity derives from the right to privacy and it refers to the freedom to make your own decisions about your own body (Lau, 2017). If a government coerces individuals into surgery as a requirement to gender recognition, it infringes the right to bodily integrity. There are people who do not self-identify with either the “woman” or the “man” category and the cultural history of many countries prove that these people always existed (Lau, 2017). The goal is that these people are also recognised without bias, in other words beyond biological aspects of sex.
3.1.5 The proportionality principle
All the above provide solid arguments to recognise more than two gender categories. However, it is also important to examine if and to what extent the governments have a legitimate interest in categorising individuals on the grounds of biological aspects of sex. The proportionality principle is called by governments to justify this classification for purposes of identity verification for research or fraud, for the regulation of sports and for protecting public morality (Lau, 2017).
Nonetheless, the binary grouping does not pass the proportionality test. First of all, it is disproportionate, since there are other, less coercive and more accurate ways to identify subjects without relying on IDs. On the one hand, researchers interested on the biological sex “could either directly ask research subjects about biological sex or rely on medical records that document biological sex” (Lau, 2017). On the other hand, neither is it easy to change one’s gender marker on IDs so that it could facilitate fraud, nor does the police lack criminal records. Regarding sports, current Olympics rules demand transgender women who participate in women’s events to have testosterone levels comparable to those of cisgender women.
It is vague to defend the legitimacy of binary categories on the grounds of consistency and reliability of an individual’s civil status, since this status is not accurate. As a result, mandatory binary gender registration is disproportionate, because it fails to achieve the initial aim. The coercion to identify within the binary disregards the very existence of sex/gender non-conforming people and refuses to activate one of the range of policies that advance public aims and gender equality.
Finally, moral disapproval- which could be heard as an “argument” in favour of binary gender registration- cannot be considered as a legitimate government interest. “While human rights’ treaties allow restricting certain rights to protect public morality, it is imperative to define “morality” narrowly.” (Lau, 2017). The UN HRC is aware that qualifying states’ own definitions of “morality” as legitimate interest would offer justifications for eluding oversight from human rights mechanisms (Toonen v. Australia).
Hence, mandatory binary sex/gender registration does not pursue a legitimate aim, because it disproportionately violates the right to gender autonomy and it is “neither the least restrictive, nor the most suited measure to achieve aims of public health or gender equality” (P. Cannoot, M. Decoster, 2020).
3.2. The importance of gender justice for all
The binary heterosexual cultural system has adverse effects that are not limited to LGBTIA+ people. Regardless of its current legitimacy, it is not “natural” for people to dualistically perceive themselves and behave accordingly. Defying the binary categorisation would facilitate and value self-determination of all, so that all people can express themselves beyond the norms. Further, gendered violence, which is fueled from the binary perception of gender, will lose its veil of validity. Nowadays, the binary notion motivates violence against those who defy gender norms. Thus, gender recognition would potentially prove beneficial for social peace and reduced criminality (P. Cannoot, M. Decoster, 2020).
Gender minorities remain vulnerable to structural discrimination, since they suffer from stigma, prejudice and abuse. Not having their gender recognised is differential treatment and (as proven) fails the proportionality test. Ending this discrimination is a subject of gender and social justice.
4. The Y v. France case
Coming now to the case under examination, the Court is called to hold a decision on the right of sex/gender non-conforming people to have their non-binary gender identity legally recognised by the State. The Court has already ruled that gender is a core aspect of all persons’ personal identity under Article 8 ECHR. Still, all those who do not identify with the gender assigned at birth, do not have this core aspect of their identity recognized and respected. States violate both the positive and negative obligations under Article 8, when they deprive individuals of their right to freely determine their gender identity (P. Cannoot, M. Decoster, 2020).
It is high time the Court ruled for enhanced and meaningful legal protection for sex/gender non-conforming people via making the neutral gender option available for all. The non-binary sex/gender marker should not be available only for intersex people, since (a) it would be under-inclusive, concerning gender non-binary people who are not intersex, but cannot be classified male/female according to the medical norms, (b) it would also be over-inclusive, given that some intersex in fact identify as a man or a woman. Then again, if the non-binary sex/gender marker was mandatory for all who identify as non-binary, the existing stigma would be emphasised by underling these individuals’ otherness (P. Cannoot, M. Decoster, 2020).
As analysed, binary public records are actually incorrect in many cases. The legitimate aims that are called to support the present practice do not stand and they mostly constitute the old bureaucratic organization, rather than backing an identifiable purpose. Public documents should rely on self-identified gender. Their so-called accuracy is not proportionally weightier, so as to give reason for refusing sex/gender non-conforming people the official recognition of their gender as a core aspect of their personal identity under Article 8.
Very recently the European Parliament declared the European Union an ‘‘LGBTIQ Freedom Zone’’ stressed that “LGBTIQ persons everywhere in the European Union should enjoy the freedom to live and publicly show their sexual orientation, gender identity, gender expression and sex characteristics”. Given that gender identity is not binary for all, the strictly binary “categories and medical requirements for legal gender recognition are also disputable from a human rights perspective” (P. Cannoot, M. Decoster, 2020). Applying European principals in practice requires states accepting and respecting that the reality of sex and gender is not binary. Many European citizens have variations in sex characteristics or a non-binary gender identity. An administrative procedure of legal gender recognition based on personal autonomy/self-determination is a matter of gender justice. The Court is given the opportunity to safeguard gender beyond the binary. A revised sex equality law would help ending discriminatory treatment of all those who experience and express gender identities outside male and female labels and such an action would benefit all citizens by abandoning stereotypes and advancing accuracy in public records.
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