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Forced divorce and sterilisation – a reality for many transgender persons

Human Rights Comment
Strasbourg 31/08/2010
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The rights of transgender persons are still ignored or violated, but some signs of understanding now begin to appear. One example is the outcome, at long last, of Lydia Foy’s struggle in Ireland. She was registered as male at birth but has lived as a woman since 1992. This summer she finally succeeded in her battle for legal recognition by the Irish state as a woman and for a birth certificate that reflects this reality.

Most people legally defined as man or woman will experience a corresponding gender identity. Transgender persons, however, do not have such a corresponding identity and may wish to change their legal, social, and sometimes also physical status.

The case initiated by Lydia Foy in 1997 led to a High Court ruling ten years later that Ireland was in breach of the European Convention on Human Rights by not providing recognition of Dr. Foy in her preferred gender. It took the Irish government another 2.5 years to accept that Irish law is incompatible with the European Convention. In June 2010 the Irish government withdrew its appeal to the Supreme Court and will now recognise Lydia Foy as a woman. 

The Irish government will introduce legislation to recognise transgender persons in their preferred gender including the possibility for them to obtain new birth certificates. An inter-departmental working group has been set up by the Irish government to develop a legal framework which respects the human rights of transgender individuals. It is crucial that representatives of the transgender community as well as other experts be represented in this working group. This could become a good model for other states which are currently considering improving their legal framework for transgender persons, including Portugal, Hungary, the Netherlands.

Still viewed as a mental disorder

Ireland is not the only country where transgender persons have faced obstacles in obtaining legal recognition of their preferred gender. Some Council of Europe member states still have no provision at all for official recognition, leaving transgender people in a legal limbo. Most member states still use medical classifications which impose the diagnosis of mental disorder on transgender persons.

Even more common are provisions which demand impossible choices, such as the “forced divorce” and the “forced sterilisation” requirements. This means that only unmarried or divorced transgender persons who have undergone surgery and become irreversibly infertile have the right to change their entry in the birth register. In reality, this means that the state prescribes medical treatment for legal purposes, a requirement which clearly runs against the principles of human rights and human dignity.

Some positive legal developments can however be found. The Austrian Administrative High Court ruled in 2009 that mandatory surgery could not be a prerequisite for gender change, and in Germany the Federal Supreme Court indicated in 2005 that operative interventions as a precondition for the change of gender are no longer tenable.

Full right to physical and moral security

All countries need to develop expeditious and transparent procedures for changing the name and gender of a transgender person on official documents, in accordance with the case-law of the European Court of Human Rights.

In 2002, in Goodwin v UK, the Strasbourg Court’s Grand Chamber stressed that in the twenty first century the rights of transgender persons should be effectively protected by states. They should have the same right to personal development and to physical and moral security enjoyed by others in society. One cannot but agree.

There is a strong need for an informed dialogue about the widespread discrimination against transgender persons in Europe today. One contribution will hopefully be a comparative study, the result of which my office will present early next year, on continued discrimination in all parts of Europe on grounds of sexual orientation and gender identity.

Thomas Hammarberg