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Clear laws needed to protect trans persons from discrimination and hatred

Human Rights Comment
headline Strasbourg 26/07/2011
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Clear laws needed to protect trans persons from discrimination and hatred

Trans persons face severe discrimination in many areas of life, not least in employment, education, health care and leisure activities. Bullying at school is common-place. Surveys have demonstrated that about half of trans persons hide their gender identity at work for fear of losing their job. Forty-one transphobic murders have been reported in Europe since 2008.

Newborns are recorded as a boy or a girl and this distinction becomes a legal and social fact from then on. What is characteristic for trans persons is that they experience problems in identifying with the sex assigned at birth. It does not correspond with their deeply felt individual experience of gender; their gender identity.

Gender identity includes the personal sense of the body and other expressions such as dress, speech and mannerisms. Trans persons often present themselves differently from the expectations of the male or female gender role given to them at birth. They may choose to undergo hormone treatment and surgery to modify their body appearance to reassign their gender.

Today trans persons often lack specific protection against discrimination based on gender identity – protection that has proven to be urgently needed.

Transphobic prejudice and hatred

A report published recently by my Office demonstrates that attitudes towards trans persons show ignorance, prejudice and even hatred. The fact that “transsexualism” and “gender identity disorder” are often found in medical classifications for mental illness can stigmatise trans persons and restrict their decisions in the choice of treatment.

At worst, trans persons are victims of violent hate crime. A trans murder monitoring project carried out by Transgender Europe has reported 41 transphobic murders taking place in European countries since 2008. The countries concerned are Albania, Germany, Italy, Poland, Portugal, Russia, Spain, Serbia, Turkey, and United Kingdom.

Yet transphobia is rarely addressed specifically in national penal codes. In fact, only Sweden and Scotland explicitly cover transphobic hate crime in criminal law. While more general provisions found in some countries about incitement to hatred may be applied in such cases, this is not enough.

Discrimination based on gender identity

All human rights should apply equally to everyone regardless of gender identity.
Yet, gender identity is not always clearly identified as a prohibited ground of discrimination. International human rights treaties do not usually refer to gender identity specifically.

International law is however interpreted by courts and human rights monitoring bodies to include gender identity as a ground of discrimination. This year’s Council of Europe Convention on preventing and combating violence against women and domestic violence became the first human rights treaty which refers to gender identity explicitly. The EU has also applied directives on equality between men and women to provide some protection to trans persons.

At the national level, only nine Council of Europe member states have included gender identity explicitly in their non-discrimination legislation: Albania, Croatia, the Czech Republic, Germany, Hungary, Montenegro, Serbia, Sweden and the United Kingdom. Even in these countries, the terminology used varies which may limit the scope of protection. Eleven other member states apply equality law between men and women in line with EU practice. In the remaining 27 member states the coverage of trans persons under equal treatment legislation is unclear.

Reform legislation and monitor progress

Too often politicians and policy makers have ignored the human rights of trans persons when drafting legislation and designing public policies. There is a need to close this gap and start serious reforms and initiate social change. National non-discrimination legislation should specifically include gender identity as a prohibited ground of discrimination. Transphobic hatred should be recognised as a possible motive for bias-motivated crime and hate speech.

National and international medical classifications should also be reviewed to eliminate any stigmatisation or obstacles trans persons may face in accessing the treatment they need and making choices regarding care. The current revision process of the WHO International Classification of Diseases provides a timely opportunity for doing so.

National and international monitoring is needed to measure progress. National equality bodies and Ombudspersons should have a clear mandate to promote the human rights of trans persons. Change is only possible if European governments show a more genuine political will to address this problem, and much more determination to fight prejudice and discrimination.

Thomas Hammarberg