1. “I grew up as part of
a close-knit family of origin and was proud to be part of that family.
But as far back as my very first memories I have experienced a feeling
of incongruence with my gender. I thought I was alone. I hid my
identity and conformed to the expectations of my parents and Irish
society at that time in the 1960s and onwards. I created a façade
and invited other people into that façade. When, at the age of 43,
I addressed a major aspect of my core identity, I faced up to the
façade, there were many negative consequences for all of us.”
2. With these words, Vanessa Lacey, Health and Education Officer
at the Transgender Equality Network Ireland (TENI), started her
testimony before our Committee on Equality and Non-Discrimination,
on 24 May 2013. This was the first time that the committee had singled
out gender identity as a topic for a hearing, as opposed to dealing
with it in the context of the broader issue of the protection of
LGBT (lesbian, gay, bisexual and transgender) people against discrimination.
In addition to Ms Lacey, the committee heard a presentation by Nicolas
Beger, Director of Amnesty International’s European Institutions
Office. The hearing was the first opportunity for some of us to
meet a transgender person and discuss face-to-face her history and
everyday reality. It convinced the members of the committee that
the specificities of the situation of transgender people in Europe
are such that it deserves to be dealt with in its own right, with
a specific report.
This is the background to this report, which is intended also
to complement the previous work of the Parliamentary Assembly and
the Council of Europe as a whole on sexual orientation and gender
identity as a prohibited ground of discrimination, namely Assembly Resolution 1728 (2010)
on discrimination on the basis of sexual orientation
and gender identity and Recommendation
on tackling discrimination on the grounds of sexual
orientation and gender identity, as well as recommendation Rec(2010)5
of the Committee of Ministers on measures to combat discrimination
on grounds of sexual orientation or gender identity.
4. In this document, I would like to broach the issue, provide
clarification on some concepts and give an overview of the challenges
faced by transgender people in Europe. This memorandum takes into
account the exchange of views with Ms Julia Ehrt, Executive Director
of Transgender Europe (TGEU), which was organised on 2 June 2014
by the Committee, in Paris, and the findings of my fact-finding
visit to the United Kingdom in December 2014.
5. Transgender people have
a gender identity which is different to the gender assigned at birth.
This includes people who intend to undergo, are undergoing, or have
undergone gender reassignment as well as those who prefer or choose
to present themselves differently to the expectations of the gender
assigned to them at birth. Diversity within the transgender spectrum
is large, with 73% of transgender people not identifying themselves
with the gender binary male–female.
6. Gender identity
to each person’s deeply felt internal and individual experience
of gender, which may or may not correspond with the sex assigned
at birth, including the personal sense of the body and other expressions
of gender, including dress, speech and mannerisms.
7. Legal gender recognition is
the legal recognition of a person’s gender identity, including change
of name, gender marker and other gender-related information such
as social security number in public registries and key documents.
8. Gender reassignment or gender confirming treatment is a set of medical
measures that can but does not have to include psychological, endocrinology
and surgical treatments aimed at aligning a person’s physical appearance
with their gender identity. It might include psychological consultation,
cross-hormonal treatment, sex or gender reassignment surgery (GRS)
(such as facial surgery, chest/breast surgery, different kinds of genital
surgery and a hysterectomy), sterilisation (leading to infertility),
hair removal and voice training. Not every transgender person wishes
for or is able to undergo all or any of these measures.
9. Transphobia is the
fear of, and aversion to, transgender people or gender non-conformity.
Individual, structural or institutional manifestations of transphobia
include discrimination, criminalisation, marginalisation, social
exclusion and violence on grounds of (perceived) gender identity
and gender expression.
10. I would also like to recall that the Council of Europe Convention
on Preventing and Combating Violence against Women and Domestic
Violence (CETS No. 210, “Istanbul Convention”) is the first international
binding instrument to set out a definition of “gender”, which is
“the socially constructed roles, behaviours, activities and attributes
that a given society considers appropriate for women and men” (Article 3).
3. Surveys and studies
In 2013, the European Union Agency for Fundamental Rights
(FRA) published a survey on LGBT people’s experiences of hate crime
and discrimination, based on the replies to a questionnaire conducted online
in all European Union member States.
The survey attracted over 93 000
respondents who identified themselves as LGB or T. On 9 December
2014, FRA published “Being Trans in the EU”, a report based on the analysis
of the information provided by over 6 500 respondents to the LGBT
survey – the largest body of empirical evidence of its kind to date,
Other recent studies include “Being
trans in Belgium” (2010)
and “Trans and intersex people” by
the European Network of Legal Experts in the non-discrimination field,
published by the European Commission (2012).
In February 2014, Amnesty International published “The State
decides who I am – Lack of gender recognition for transgender people
in Europe”, a report on transgender people in Europe based on a
human rights approach. As the title indicates, this report illustrates
the human rights violations experienced by transgender people in
Europe when seeking legal gender recognition, either because this
is not provided in their country’s legislation, or because it implies
the fulfilment of invasive legal requirements, such as psychiatric diagnosis,
sterilisation and divorce.
Detailed recommendations are also
provided, some of which are aimed at specific countries and some
at all European governments.
14. This report draws from these publications, as well as from
a position paper written for me by Transgender Europe.
4. Addressing discrimination:
15. Discrimination on the grounds of gender identity
and gender expression is severe and widespread in Council of Europe
member States. Transgender people are confronted with several forms
of discrimination and difficulties in all aspects of life, such
as discrimination in access to work, housing and health care, vulnerability to
hate crimes, bullying and physical and sexual violence. The level
of discrimination and hostility experienced by transgender people
is severe, both because they frequently face social rejection and
because they are generally visible.
16. Transgender people are at particular risk of multiple discrimination,
as in the case of transgender people with disabilities or those
who are migrant or part of a national or ethnic minority. In addition,
discrimination in the access to work may lead to poverty and increased
social exclusion: a vicious circle often affecting young transgender
people more severely.
17. Transgender people face specific forms of discrimination,
including coercive sterilisation, dissolution of marriage (unless
the spouse’s agreement is given, under the United Kingdom legislation’s
“spousal veto” clause) or a diagnosis of mental illness as preconditions
for legal gender recognition. In addition, transgender people face
difficulties in accessing appropriate general health care and gender-confirming
4.1. Access to work
18. Work is particularly important for transgender people:
it often means access to a social life and is indispensable to finance
gender reassignment treatment.
19. According to the FRA survey, only 49% of the transgender respondents
(age range 18-81) are in paid work and 38% of single transgender
people are poor, more than twice the number for the general 18-64
year-old population (14%). Nearly a third of transgender job seekers
(29%) had experienced discrimination when looking for a job in the
last 12 months.
20. The “Be who you are study” found an alarmingly large share
(12%) were declared unfit for work. Research conducted in the Netherlands
shows that about 30% of those having undergone gender reassignment
treatment and legal gender recognition are receiving some sort of
unemployment benefit in the age group 15-64.
Employment prospects have a direct impact on transgender people's
decision to live according to their gender identity. Thus, many
transgender people not living permanently in their preferred gender
role are prevented from doing so because they fear it might threaten
their employment status.
22. In its Recommendation Rec(2010)5 on measures to combat discrimination
on grounds of sexual orientation or gender identity, the Committee
of Ministers gave detailed recommendations for improving the situation
for transgender employees, asking member States “to ensure the establishment
and implementation of appropriate measures which provide effective
protection against discrimination on grounds of sexual orientation
or gender identity in employment and occupation in the public as
well as in the private sector. These measures should cover conditions
for access to employment and promotion, dismissals, pay and other
working conditions, including the prevention, combating and punishment
of harassment and other forms of victimisation”. The Committee of
Ministers paid particular attention to “effective protection of
the right to privacy of transgender individuals in the context of
employment, in particular regarding employment applications”.
4.2. Access to health
Transgender people tend to suffer from a poor state
of health. Their fear of discrimination and stigmatisation adversely
affects their psychological and physical well-being. This is further
accentuated by avoidance of health services, based on anticipation
of negative/discriminatory attitudes by health-care providers. In
an European Union-wide study the most consistent theme was that
of improper or abusive treatment by health-care professionals.
percent of transgender respondents in the FRA LGBT survey reported
inappropriate curiosity by care providers, and 17% had their specific
needs ignored when seeking general health care.
a reaction, transgender people often avoid health-care services
as much as possible.
24. Transgender people’s access to prevention and early-detection
measures is low and they might seek health care only in cases of
emergency or when a health problem has already progressed. This
reduces possibilities of effective intervention and increases costs
both for the individual and the health-care system.
Transgender people’s health is often worse than that of the
general population. Health and social issues may include isolation,
risk of alcohol abuse, self-harm, substance abuse and possible higher
rates of HIV infection. Thus, transgender women are 49 times more
likely to become infected with HIV compared to all adults of reproductive
age across the 15 countries studied, making the call for prevention,
treatment, and care services an urgent one.
26. In the course of my visit to the United Kingdom, I became
aware of a specific form of discrimination that some transgender
people faced in relation to access to medical services. There have
been cases of transgender people being refused the possibility to
store their egg cells in view of possible future in vitro fertilisation
after completing a female to male transition process. These cases
seem to suggest that more information and clearer guidelines are
necessary in the field of public health, to avoid all possible forms
4.3. Access to housing
27. Safe and affordable housing is a key concern for
many transgender people. Aggression from neighbours and others and
rejection by their own families make transgender people, especially
the young, more exposed to the risk of homelessness.
In a US-wide study on discrimination experiences of transgender
people, about a fifth (19%) reported having been refused a home
or apartment and 11% reported being evicted because of their gender
According to the
same study, more than half (55%) of those who were homeless at one
point in their life because they were transgender or gender non-conforming
(19% of total respondents) were harassed by staff or shelter residents,
“29% were turned away altogether, and 22% were sexually assaulted
by residents or staff. Respondents who have experienced homelessness
were highly vulnerable to mistreatment in public settings, police
abuse and negative health outcomes”.
Transgender people with a migrant or minority background are
particularly vulnerable to homelessness. The higher risk of discriminatory
eviction even affects transgender organisations, as shown by the
case of the Greek Transgender Support Association which faced organised
resistance from other tenants, calling for their eviction only one
month after moving in.
30. In the above mentioned recommendation, the Committee of Ministers
asks member States to target factors which might increase the vulnerability
for homelessness of transgender people by establishing neighbour
support and security programmes and training relevant agencies on
the specific needs of transgender people.
4.4. Access to education
Negative attitudes and conduct towards transgender
people and gender diversity is widespread in educational facilities.
Thus, only 10% of transgender respondents to the FRA study had never
observed anything in this regard. For the majority (69%), negative
comments and conduct occurred regularly in their school life.
This stigmatisation impacts transgender students and staff
in their personal development, self-esteem, well-being and thus
also school/professional performance, forcing many to quit school
early. Unfortunately, sometimes school staff engage in discriminatory
behaviour as shown by the case of a young transgender woman in Athens:
the Greek school administration neither stopped the physical and
verbal attacks against her from the Headmaster, nor reacted to an
attempt by other students to douse her in a flammable liquid and
burn her. Even if the Greek Ombudsman stood up for her, the transgender
girl had to leave the school.
33. Procedures to change a name and gender marker are usually
only available at the age of majority. This poses challenges for
the usage of gendered facilities (locker rooms, sanitary facilities,
gender-segregated uniforms/schools) and participation in daily school
life in accordance with the individual’s gender identity.
34. Most countries do not require official records and educational
certificates of transgender students to be adapted, leaving it to
the goodwill of the school administration. A divergence in official
documents poses considerable obstacles in accessing higher education
and finally the job market.
35. In the United Kingdom, according to Ms Alison Pritchard, Director
of the Government Equalities Office, awareness of the importance
of accommodating the needs of young transgender people in school
is increasing. Schools have a duty to ensure that they are balancing
the rights of their students and are not discriminating on grounds
of gender identity. Actual arrangements are made by the individual
school, based on the specific situation and also depending on available
4.5. Stereotyping and
Transgender people are confronted with little understanding,
let alone acceptance. A study in Germany found that 45% of people
have no or little understanding of those who intend to or have changed
has been confirmed in the European Union Eurobarometer 2012, which
revealed that only 8% of people know a transgender person personally,
while 13% had no opinion on the prevalence of transgender discrimination
(compared with 8% for sexual orientation).
the report shows diversity in the public sphere is more accepted,
people would be very uncomfortable with a transgender person being
elected to the highest political office.
Knowing a transgender person personally is directly linked
to a higher sensitivity for discrimination experiences. However,
ignorance and stereotypes are the breeding ground for hostility
and prejudice. Media play a key role, as evidenced by the direct
link between inappropriate media representation of transgender people
and physical and verbal attacks against them.
comparison across the European Union shows that comments (44%) and
verbal abuse (27%) are the most common forms of harassment.
4.6. Hate crimes and
38. Many transgender people are exposed to verbal and
physical assault in public. According to the Transgender EuroStudy
(2008), 79% of respondents have experienced some form of harassment
in public, ranging from transphobic comments to physical or sexual
abuse. This phenomenon was confirmed by the “Transphobic hate crime
in the European Union” report published by Press for Change in 2009.
Nearly every visibly transgender person experiences harassment,
abuse and violence in public. As pointed out by the Office for Democratic
Institutions and Human Rights of the Organization for Security and
Co-operation in Europe (OSCE/ODIHR): “Homophobic hate crimes and
incidents often show a high degree of cruelty and brutality. They
often involve severe beatings, torture, mutilation, castration,
even sexual assault. They are also very likely to result in death.
Transgender people seem to be even more vulnerable within this category.”
The most serious incidents of
violence or harassment reported to the police in the last five years
which happened partly or completely because the victims were perceived
to be LGBT (by LGBT subgroup (%))
Source: FRA LGBT Survey
The transgender hate motive behind crimes is often
reported only by non-governmental organisations (NGOs). Perpetrators
of violence against transgender people can be clients (in the case
of transgender sex workers), gangs, police and other individuals.
The statistics of TGEU's Trans Murder Monitoring Project show an
alarming trend, illustrated, for example, by the number of reported
murders in Turkey in recent years (2008: 4; 2009: 7; 2010: 7; 2011:
6; 2012: 6; 2013: 4).
Other reports concerning 11 European
countries documented 71 murders of transgender people in five years.
In most cases, victims are migrants
or sex workers, and often both.
When turning to health-care providers, the police or equality
bodies, transgender people may face many difficulties in obtaining
help, as they fear transphobic reactions, blackmail and re-traumatisation.
76% of transgender respondents to the FRA LGBT Survey said that
they did not report the most serious incidents to any institution,
not even the police. Negative attitudes of law-enforcement bodies
against transgender sex workers have a major impact on these individuals’
safety and security.
For many transgender people, rejection, bullying and violence
start in the family of origin. The continuous threat of violence
negatively affects transgender individuals’ ability to pursue their
personal development and fulfilment. It is often not possible to
turn to others for help, as disclosing domestic violence would often
result in coming out as transgender, as the causes for the domestic
violence would become public, with all the adverse consequences
that this would entail.
the ongoing strain on an often isolated individual without access
to transgender peers or suitable support often results in serious
mental health issues for transgender individuals and their communities.
5. Suicide and suicide
attempts among transgender people
The prevalence of self-harm, suicide and suicide
attempts is much higher among transgender people than the general
population. While this has been investigated more widely in the
United States than in Europe, some of the more recent European studies
that I have mentioned provide relevant information. Transgender Europe
and ILGA’s Transgender study of 2008 reported a 30% attempted suicide
rate among transgender people. The United Kingdom’s Trans Mental
Health Study of 2012, for instance, indicates that 84% of respondents
stated that they had considered ending their lives at least once.
Of these, 65% had considered it in
the last year, and 3% thought about it daily. The rate of respondents
having actually attempted to commit suicide at some point is a disturbingly
high 48%.The findings of the 2013 Irish study Speaking from the
Margins were similar.
The findings of a 2009 Internet survey on transgender youth
based on approximately 90 respondents in France showed a similar
Children and young people are particularly
at risk. The recent, tragic suicide of an American teenager, Leelah
Alcon, was a particularly visible case, but not an isolated one.
45. Actual and attempted suicides are the consequence of pain
and in turn generate more suffering among the victims and those
around them. They are also a cry for help. This cry should not fall
on deaf ears: it is my firm conviction that much can and must be
done to prevent suicide and the suffering leading to it. Suicide prevention
measures should include awareness-raising activities aimed at transgender
people and the general public, as well as specific training for
people working in suicide prevention. Information campaigns and
other prevention activities may be carried out jointly by transgender
people’s organisations and charities specialising in suicide prevention.
In the United Kingdom, the government’s suicide prevention
strategy of 2012 takes into account that specific situations may
require a different approach. Therefore, the strategy allocates
research funds to investigate “how interventions can be tailored
to improve the mental health in some specific groups such as black
and minority ethnic groups and lesbian, gay, bisexual and transgender
The Scottish suicide prevention strategy
2013-2016 has also identified LGB and transgender people as high-risk
47. Specialists explain that the main motivation for suicide is
not a wish to die, but rather the will to end pain. In Europe, there
is much scope for improving the quality of life of transgender people.
While suicide prevention activities targeting transgender people
are needed, it is also necessary to tackle the root causes for suicide, which
include all forms of discrimination and violence. Discrimination
subjects transgender people to hardship and if that were to be eradicated
the quality of life of transgender people would improve and suicide
rates would certainly decrease. Even conversion therapies, aimed
at convincing a transgender person to give up their gender identity
and instead to identify with the sex they were assigned at birth,
often represent a form of psychological violence and may further
accelerate suicidal tendencies.
48. I wish to underline that, as shown by the research carried
out in the field, the prevalence of suicides and suicide attempts
among transgender people decreases after transitioning. This is
another significant indication that transitioning leads to a substantial
improvement of satisfaction and life quality.
6. Legal protection
Only 21 Council of Europe member States explicitly
include gender identity as a prohibited ground of discrimination,
either in their general anti-discrimination legal framework or in
anti-discrimination laws in specific sectors. Amongst them is a
German equality law which protects transgender people in the area
of employment, including the right to rectification of employment
In other countries, gender identity is
covered under “sex” and made explicit through case law.
should be underlined that my country, Malta, in recent years made
a huge leap forward in fighting discrimination on the grounds of
sexual orientation and gender identity. In April 2014, it became
the first country in Europe, and the second in the world, to include “gender
identity” as a prohibited ground of discrimination in its Constitution.
Recently adopted European Union directives in the area of
and the draft European General Data
Protection Regulation explicitly refer to non-discrimination on
the grounds of gender identity and expression.
7. Access to gender
52. In general, transgender people who seek gender reassignment
treatment experience an increase in quality of life after transitioning.
According to a UK/Irish survey, 70% of them were more satisfied
with their lives after transitioning and only 2% were less satisfied.
Those who were less satisfied after transitioning mentioned poor
surgical outcome, loss of family, friends or employment, everyday
experiences of transphobia and non-trans-related reasons.
One of the main obstacles faced by transgender people in access
to trans-related health care is general lack of competence and resources.
80% of those seeking gender reassignment have been refused coverage under
the available health-care plan; 50% of those refused paid for the
Given this limited public coverage,
it would be even more important to have public policies and guidelines
clearly outlining that gender reassignment treatment has to be dealt
with like any other medically necessary treatment in public insurance
plans. It is also of concern that many private medical insurance
providers reject transgender people or require higher insurance
The Committee of Ministers has emphasised that limitations
to cost coverage must be “lawful, objective and proportionate”.
Council of Europe member States provide comprehensive or partial
gender reassignment treatment.
between these States are significant, ranging from member States where
quality expertise centres are available and those where some but
not all necessary treatment is available. In countries where no
facilities are available, people wishing to undergo gender reassignment
go abroad (they are even explicitly advised to do so in some member
protocols differ from country to country and often do not meet international
55. A few cases have been brought before the European Court of
Human Rights. In G.G. v. Turkey,
which is pending, the applicant challenges under Articles 3 and/or
8 of the Convention the refusal by Turkish authorities to cover
treatment judged to be “imperative and urgent” by courts and doctors.
On 10 March 2015, in the case Y.Y. v.
Turkey, concerning the refusal by the Turkish authorities
to grant authorisation for gender reassignment surgery on the grounds
that the person requesting it was not permanently unable to procreate, the
Court held unanimously that there had been a violation of Article
8 (right to respect for private and family life) of the Convention.
“Gender Identity Disorder” (GID) or an equivalent diagnostic
process is mandatory in most European countries to access gender
reassignment treatment and most legal gender recognition procedures.
National treatment protocols feature adapted definitions of GID
from the WHO International Catalogue of Diseases (ICD).
People with trans identities are
affected by a wide range of codes, such as Transsexualism (F 64.0), Gender
Identity of Childhood (F 64.2), Other Gender Identity Disorders
(F 64.8), Gender Identity Disorder, unspecified (F 64.9), Fetishistic
Transvestism (F 65.1) or Dual-role Transvestism (F 64.1).
diagnoses have been criticised by human rights activists as stigmatising
and actively pushing for social exclusion of trans people, while
not adding to their physical or mental well-being. Sweden, Norway
and Finland removed Dual-role transvestism (F 64-1), Fetishism (F
65.0), Fetishistic transvestism (F 65.1) and Multiple disorders
of sexual preference (F 65.6) from their national catalogues for
lack of therapeutical value.
I wish to highlight some positive developments on this front.
On 11 June 2014, the Danish Parliament amended the gender recognition
procedures, omitting diagnostics and any other medical requirements,
making it the first country in Europe to base legal gender recognition
entirely on the self-determination of the transgender person
. On 16 May 2014, the Administrative
Court of Stockholm rejected the practice of interpreting the Swedish
Law on Legal Gender Change as requiring a psychiatric evaluation
and diagnosis (the decision has been appealed).
58. Coverage of costs for gender reassignment treatment hinges
on obtaining a GID diagnosis or equivalent. The “mental disorder”
label reinforces stigma, making prejudice and discrimination more
likely, and rendering transgender people more vulnerable to social
and legal marginalisation and exclusion. The mental health diagnosis
thus contributes to increased risks to mental and physical well-being.
63% of transgender respondents to a German study felt that the GID
diagnosis was a source of significant distress for them.
59. Even when gender reassignment treatments are covered by public
health services, they may be difficult to obtain in practice. In
the United Kingdom, for instance, as my interlocutors explained
during the fact-finding visit, there is a serious shortage of surgeons
with specific experience in this field in the National Health Service. As
a result, waiting lists are large and waiting times are exceedingly
A group of international transgender health experts has been
developing different alternative models for health classification
regarding gender identity, as a contribution to the currently ongoing
review of the International Classification of Diseases, with the
aim of facilitating access to health-care coverage without stigmatising
campaign “Stop Trans Pathologisation – STP 2012” demands the removal of
the categories of “gender dysphoria”/“gender identity disorders”
from the WHO list.
The World Professionals Association
of Transgender Health (WPATH) has called for the depsychopathologisation
of gender variance and urges “governmental and medical professional
organisations to review their policies and practices to eliminate
stigma toward gender-variant people”.
The Spanish Network for Depathologisation
of Trans Identities has developed a best practice model for trans-related
health care, based on informed consent.
8. Gender recognition
61. Legal gender recognition is for many transgender
people the key to meaningful participation in society and to living
in dignity, protected from discrimination. Despite repeated rulings
of the European Court of Human Rights on the positive obligation
of States to provide for gender recognition, only 34 countries in
Europe have legal provisions to recognise a trans person’s gender
identity. Transgender people’s existence is hence de facto not recognised in a quarter
of the Council of Europe member States. Procedures, if they exist,
are often very lengthy and complicated. A medical and legal limbo
is inscribed in all existing legislation regulating gender recognition.
All too often, the requirements for gender recognition force
individuals to give up one human right to gain another. Twenty-three
countries in Europe require by law that trans people undergo sterilisation
before their gender identity is recognised. The former Commissioner
for Human Rights has critically remarked that “[t]ransgender people
appear to be the only group in Europe subject to legally prescribed,
requirements may include diagnosis of mental disorder, medical treatment
and invasive surgery, mandatory psychiatric institutionalisation,
assessment of time lived in new gender
identity and being single or divorced. Such requirements violate
a person’s dignity, physical integrity, right to form a family and
to be free from degrading and inhuman treatment.
TGEU’s TvT Legal and Health Care Mapping
shows that in some countries legal
gender recognition is possible in theory, but the practice is different.
Applications by trans people are often delayed, not accepted or
refused without the right to appeal, or there is legal uncertainty
about the procedure. Another practical difficulty occurs if the
legal gender recognition procedure does not extend to altering official
documents previously issued by State or private actors. Population
registries using numerically coded gender markers may pose an additional
challenge. Thus, the last digit of the Danish social security number
(odd for male, even for female), which is widely used, for example
when opening a bank account or as a university matriculation number,
clearly indicates the gender as registered by birth, because it
does not change over a lifetime.
64. Those trans people not matching the strict diagnosis or other
medical requirements are not eligible to have their gender identity
officially recognised. This is relevant for a large portion of the
European trans population: The EU Survey on LGBT Experiences of
Discrimination (FRA 2012) found that 73% of trans respondents do
not identify within the gender binary. Equally, those trans people
not able or willing to submit to requested medical procedures or
who are excluded on grounds of age restrictions do not have access
to these procedures and associated rights.
65. Cumbersome and lengthy processes result in trans people having
no, or greatly reduced, access to the job market; difficulties with
travel; forced divorces and stress on families; ineligibility for
partnership recognition and being subjected to discrimination by
State and non-State actors. Claiming one’s rights is also hindered,
as it is difficult to file a discrimination case if one’s ID documents
do not reflect the person’s presented gender. The Fundamental Rights
Agency (2008, 2010, 2011) suggests a link between certain requirements
such as sterilisation, genital surgery, mental health diagnosis
or age limits in national gender recognition legislation and setbacks
in accessing education or employment.
66. In conclusion, the lack of quick, accessible and transparent
gender recognition procedures further marginalises an already socially
excluded group. Transgender respondents to the EU LGBT Survey 2012 unsurprisingly
named improved gender recognition procedures as a major factor that
could help improve social acceptance and transgender well-being.
67. On a positive note, a change of attitude and attempts at legal
reform can be witnessed in many European countries, a process triggered
by increased awareness, with civil society and international organisations, including
the Council of Europe, being positive drivers of change. The Swedish
and Dutch parliaments abolished in 2011 and 2013 respectively the
sterilisation requirement for a change of documents, Austrian and German
courts had previously declared similar legal passages to be violating
human rights and thus void.
68. As already mentioned, the Danish Parliament recently amended
the gender recognition procedures, omitting sterilisation and any
other medical requirements. The new Danish regulations represent
a turning point and the first time that the principle of self-determination
is enacted in Europe. They make it possible to obtain legal gender
recognition by requesting a new social security number. No surgical
intervention or treatments such as hormone replacement therapy are
requested. The law introduces a reflection period (the request needs
to be confirmed six months after the original application) and a
minimum age of 18.
The Irish Parliament is currently discussing a draft bill
on gender reassignment, but this text is not based on self-determination.
Michael O’Flaherty, a distinguished Irish human rights lawyer and
former rapporteur of the group of experts which drafted the Yogyakarta
Principles, criticised this draft legislation as disrespectful to transgender
people and out of line with international good practice.
I believe that European legislators
who engage in regulating the question of gender recognition should
now draw inspiration from more recent and progressive models.
70. On 4 March 2015, the Parliament of Malta voted unanimously
on second reading a draft Gender Identity, Gender Expression and
Sex Characteristics Bill. At the time of writing a final reading
is still required for adoption. The opposition has declared that
it will vote in favour of the Bill, which is expected to be adopted
by the end of March 2015. This comprehensive text is one of the
most advanced in this field. It stipulates that all citizens and
permanent residents of Malta have the right to “the recognition
of their gender identity, the free development of their person according
to their gender identity, to be treated according to their gender
identity and to their bodily integrity and physical autonomy”. This
“right to gender identity” is of major importance. Legal gender
recognition is no longer viewed as a social or medical issue, but
rather as a way to enforce every individual’s right to their gender
identity. I am convinced that this is the only correct, human rights-based approach
to regulating this matter, beautifully encapsulated by this law’s
provision: “The gender identity of the individual shall be respected
at all times.”
71. Transgender people have long suffered high vulnerability
to a wide range of discriminatory and hostile behaviours. Their
situation has been neglected or underestimated and not tackled effectively.
72. There is lack of knowledge and understanding of transgender
issues amongst the general public. Much remains to be done to increase
awareness of the rights of transgender people and their specific
needs. Providing relevant accurate, unbiased information through
the mass media and in education curricula is necessary to this end.
73. Awareness among public authorities has increased in the last
few years, as shown by the adoption of important reforms of regulations
relevant to transgender people, notably on legal gender recognition.
However, this does not apply to all Council of Europe member States.
My main goal, in the preparation of this report, was therefore to
provide law-makers with information on the challenges that transgender
people currently face in Europe and on the most protective and progressive
legislation introduced in Europe up to now.
74. It is my sincere hope that this report will contribute to
a greater equality and respect for the rights and dignity of all
human beings, without discrimination.