There have been some extremely brutal hate crimes
against transgender persons. One case which received media attention was
the murder in Portugal of a homeless, HIV-positive, Brazilian
transgender woman, called Gisberta Salce Junior. She was tortured and
raped by a group of young men, thrown into a well and left to die.
My discussions with non-governmental organisations defending the rights
of transgender persons indicate that a number of such hate crimes go
unreported – even in serious cases. One of the reasons appears to be a
lack of trust in the police.
Some people seem to have a problem with the mere existence of human
beings whose outer expression of their inner gender identity is not the
same as their gender determined at birth. Aggression against transgender
persons cannot however be excused as resulting from ignorance or lack of
education. These attitudes cause serious harm to innocent and vulnerable
people and must therefore be countered.
I have been struck by the lack of knowledge about the human rights
issues at stake for transgender persons, even among political
decision-makers. This is probably the reason why more has not been done
to address transphobia and discrimination based on gender identity. The
result is that individuals are discriminated against all over Europe, in
areas such as as employment, health care and housing.
In a number of countries, the problem starts at the level of official
recognition. Transgender persons who no longer identify with their birth
gender, seek changes to their birth certificates, passports and other
documents, but often encounter difficulties. This in turn leads to a
number of very concrete problems in daily life when showing one’s ID
papers – in the bank or the post office, when using a credit card, or
crossing borders.
One well-publicised case related to Dr. Lydia Foy in Ireland who sought
to have her legal gender changed from male to female on her birth
certificate. After ten years of struggle, in 2007 the Irish High Court
finally ruled that the State was in breach of Article 8 of the European
Convention on Human Rights.
The European Court of Human Rights has ruled that States are required
to recognise legally the gender change of post-operative transsexuals2
In one case, Christine Goodwin, a post-operative male to female
transgender person, complained about sexual harassment in the workplace,
discrimination in relation to contributions to the National Insurance
system, and the fact that she was prevented from marrying a man (because
she was still legally male).
The Court stated that “the very essence of the Convention was respect
for human dignity and human freedom. Under Article 8 of the Convention
in particular…protection was given to the personal sphere of each
individual, including the right to establish details of their identity
as human beings.”3
In some European countries, it has now become possible to correct
offical records and obtain a new first name. However, in other countries
a change of birth certificate is simply not allowed. In a large number
of Council of Europe Member States, such changes are permitted only upon
proof that the transgender person has been sterilised or declared
infertile, or has undergone other medical procedures, such as gender
reassignment surgery or hormone treatment. The individual's sincere
affirmation of their gender identity is not seen as sufficient, and the
suitability of the medical procedures for the person in question is not
considered.
Additionally, many countries require that a married person divorces
before his or her new gender can be recognised, even though the couple
itself does not want to divorce. This in turn may have an impact on
children of the marriage. In fact, in several countries the parent who
has undergone the gender change will lose custody rights. Legislation
requiring divorce needs to be reformed in the spirit of the best
interests of the child.
To require surgery as a prerequisite to enjoy legal recognition of one’s
gender identity ignores the fact that such operations are not always
desired, medically possible, available, and affordable (without public
or other funding). It is estimated that only 10% of transgender persons
in Europe actually undergo gender reassignment surgery.
Even access to ordinary health care is a problem for transgender
people. The lack of trained staff familiar with the specific health care
needs of transgender persons – or simply prejudice towards transgender
people - render them vulnerable to unpredictable and sometimes hostile
reactions.
In the United Kingdom, male to female transgender persons have been
struggling to get their gender status accepted for the purpose of
pension benefits. In spite of overwhelming legal arguments they have so
far been denied the pension rights that other women in the country (who
were born female) enjoy without question.
There are other obstacles encountered in day-to-day life. A major
problem for transgender persons is harassment and discrimination at
work. Some leave their jobs to avoid it, while others avoid gender
reassignment surgery for fear of stigmatisation.
Data presented by EU’s Fundamental Rights Agency shows that in some
countries the unemployment rate of transgender persons can reach up to
50%. Some jobless transgender persons are unable to find employment, and
see no other option but to work in the sex industry. A report from Human
Rights Watch on Turkey called attention to the situation of transgender
sex workers in that country - victimised by violence, drug addiction,
sexual abuse, lack of health insurance, homelessness, police attacks,
and a high risk of HIV/AIDS.
To date, very little factual information is available on the situation
of transgender people in Council of Europe Member States. This
information is needed urgently to determine the extent of the problems
faced.
There is no excuse for not immediately granting this community their
full and unconditional human rights. Council of Europe Member States
should take all necessary concrete action to ensure that transphobia is
stopped and that transgender persons are no longer discriminated against
in any field.
Thomas Hammarberg
Thomas Hammarberg
Notes
1. Gender identity is understood to refer 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 (which may involve, if freely chosen, modification of bodily
appearance or function by medical, surgical or other means) and other
expressions of gender, including dress, speech and mannerisms.
2. Most recently, in L. v Lithuania, Application 27527/03, 11 September
2007, para. 56.
3. Christine Goodwin v. United Kingdom, Application 28957/95, judgment
of 11 July 2002.
This Viewpoint can be re-published in newspapers or on the internet without
our prior consent, provided that the text is not modified and the original
source is indicated in the following way: "Also available at the Commissioner's
website at www.commissioner.coe.int"
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