A new Council of Europe report reviews the progress achieved in European countries in guaranteeing full legal gender recognition (LGR) in all areas of life. The report acknowledges advances in legislation, practices and public attitudes, but progress is slow and additional steps are needed, inter alia, to “depathologise” legal gender recognition, as well as to ensure that family members of the persons concerned are not adversely affected and the children’s best interests duly taken into account.
This is the first thematic report on the implementation of the Recommendation CM/Rec(2010)5 on measures to combat discrimination on grounds of sexual orientation or gender identity focusing on the specific LGR aspect of the Recommendation. While support for rights of LGBTI persons, including the concept of legal gender recognition is firmly taking root in Europe, there are substantial differences between countries, the report reveals. 38 member states of the Council of Europe have a legal or administrative procedure to ensure legal gender recognition, and nine have a self-determination system. However, in some countries there is no clear procedure in place and others have rolled back existing protection by making LGR impossible. For some transgender, intersex and gender- diverse people this means having official documents that do not match their gender identity. This makes them more vulnerable to discrimination and violence. Another problem is the rise in opposition towards the human rights of transgender persons in some countries accompanied by a deficit of public information on their situation.
Over the past ten years, there has been some legislative progress to move away from the legacy of ‘pathologisation’ of LGR procedures, but this has been slow. Twenty-six member states of the Council of Europe still include a medical diagnosis as a precondition for undergoing LGR, and 13 member states still require sterilisation, contrary to the ECHR case law. There is limited progress on addressing other issues, such as ensuring that being transgender is not categorised as a mental illness. The report recommends abolishing sterilisation or any other compulsory medical treatment as a requirement for legal gender recognition. Member states should also facilitate inclusive discussions to better understand what ‘depathologising’ LGR procedures means.
As to removing divorce requirement from the LGR process, this is also not always the case: in 19 member states, divorce is required, at least de facto, to access LGR. This is legally problematic, as it means that the rights of an already lawfully married couple are at stake, including the loss in acquired rights for children. At the same time, there are positive legal developments: in six countries, the law does not require anyone to be single before applying for legal gender recognition, while another nine countries respect the integrity of existing marriages and update marriage certificates accordingly. The report’s recommendation is that member states should examine their civil status requirements for LGR to ensure that such requirements do not affect the acquired rights of the spouses and children.
As regards making LGR accessible to children and/or adolescents, this is the case in 17 Council of Europe member states. In many member states, there have been discussions about reviewing age limits especially when these limits lead to young transgender persons facing rejection, exclusion, or other problems in their everyday lives; emphasis in these discussions is put on the maturity of the child/adolescent. Member states should ensure that LGR procedures for children are based on the best-interest-of-the-child principle, and they should review explicit or implicit age restrictions accordingly, the report recommends.
In order to capitalise on existing experience of some Council of Europe member states with regard to LGR of non-binary, gender-diverse and intersex persons, member states may facilitate inclusive discussion on this topic and review inter alia the necessity of including sex/gender markers in official identity and other documents, the report suggests.
As for making LGR accessible to non-nationals residing in the country, existing restrictions should be re-evaluated in light of the European Court’s case law.
The report also makes some general recommendations. Equal treatment legislation should be accompanied by appropriate policy measures for its implementation and regular reviews. Member states which currently have no anti-discrimination legislation in place specifically protecting gender identity, should move towards introducing it. Motives linked to the victim’s gender identity or sex characteristics should be considered as “aggravating circumstances”.
The report has been prepared by a working group set up by the Council of Europe’s Steering Committee on Anti-Discrimination, Diversity and Inclusion (CDADI), with the support of the Sexual Orientation and Gender Identity (SOGI) unit. The next thematic report to be published in 2023 is expected to focus on hate crime directed against LGBTI persons.
