During six years I travelled frequently to member states of the Council of Europe. I was often reminded of the continued discrimination against individuals on account of their gender identity. Transgender persons still encounter severe problems in their daily lives as their identity is met with bureaucratic insensitivity, suspicion or outright rejection.
There have been some extremely brutal hate crimes against transgender persons. My discussions with non-governmental organisations defending their rights indicate that a number of hate crimes (even very serious ones) go unreported. One of the reasons appears to be a lack of trust among transgender people towards the police.
Some people seem to have problems with the mere existence of human beings whose inner identity is not the same as their appearance or as the one determined at birth. The aggression directed against transgender people cannot, however, be dismissed only as a psychological problem of those who do not know better. These attitudes victimise a number of innocent and vulnerable persons 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 on grounds of gender identity and gender expression. The result is that, in all countries, individuals are discriminated against, including in such crucial areas as housing, employment and health care.
In a number of cases, problems start already at the stage of the state recognising a person’s gender identity when issuing birth certificates, passports and other documents. Most transgender persons who want to state that they no longer identify with their gender as registered at birth have difficulties in processing those changes in official records. This in turn has caused a number of practical problems when showing identification papers: in the bank or the post office, when using a credit card, crossing a border or in other similar situations.
One well-publicised case related to Dr Lydia Foy in Ireland who has tried for years to obtain a birth certificate to reflect her female gender since April 1997. Five years ago the Irish High Court delivered a landmark judgment ruling that the state was in breach of Article 8 of the European Convention on Human Rights and the Irish Government later withdrew its appeal.
Therefore, not only should Lydia Foy be legally recognised as a woman, it was obvious that the government had an obligation to introduce legislation to recognise transgender persons in their new gender, and allow them to obtain new birth certificates. I was surprised – and disappointed – to learn when I recently visited Dublin that this had not happened.
In fact, these problems have now been addressed in most European countries, where it has become possible to obtain corrections of such records and also obtain new forenames. However, in some countries a change of birth certificate is still not allowed and, in others, such changes are permitted only upon proof that a person is sterilised, declared infertile, or has gone through other medical procedures such as gender reassignment surgery or hormone treatment. The medical obstacles thereby created for the individual are ignored, and the opinion of the individual is seen as insufficient.
Additionally, many countries require that a person divorce before the new gender can be recognised – regardless of whether or not the partners actually want to divorce. This in turn has a negative impact on the position of children, both in terms of their rights, as well as in terms of their relationships with their parents. In fact, in several countries, the parent who has undergone gender change will lose custody rights. Such legislation needs to be reformed in the spirit of the best interests of the child.
To require surgery as a condition for enjoying the right to one’s gender identity ignores the fact that only about 10% of the transgender persons in Europe undergo gender reassignment operations.
While the official policy in some situations makes surgery a condition for the gender change to be accepted, such operations are not always a practical option for those who want them. A study by ILGA-Europe and TransGender Europe showed that a large proportion of transgender respondents in the European Union are refused state funding to alter their sex.
Even access to ordinary health care can be a problem for people with a “non-standard” gender identity. The lack of trained staff and the lack of familiarity with the specific health care needs of transgender persons – or simply prejudices towards transgender people – render this group of people very vulnerable to unpredictable and sometimes hostile responses when they use medical services.
In the United Kingdom, some 4 000 male-to-female transgender persons have been struggling to get their gender status accepted, including for the purpose of accessing pension benefits. In spite of overwhelming legal arguments, they have so far been denied the pension rights that all other women in the country have.
Other obstacles stand in the way of living a normal life like everyone else. A major problem for transgender persons is the harassment and discrimination many of them face in workplaces. The effect is that some just leave their jobs, while others avoid undergoing gender reassignment surgery as they fear being stigmatised.
Data presented by the Agency for Fundamental Rights has shown that some jobless transgender persons have been unable to find other employment and have then ended up in prostitution. A report from Human Rights Watch on the situation in Turkey drew attention to the situation of transgender prostitutes 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 has been gathered on the situation of transgender people in Council of Europe member states. This information is needed to determine where the rights of transgender persons to recognition of their identity are infringed, and the extent of their problems in terms of discrimination and violence, and when accessing health care or other public services.
The European Court of Human Rights has ruled that states are required to recognise the gender change in post-operative transsexuals. A case was raised by Christine Goodwin from the United Kingdom who herself was a post-operative male-to-female transsexual. She complained of sexual harassment in the workplace, discrimination in relation to contributions to the National Insurance system, and denial of her right to marry.
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, where the notion of personal autonomy was an important principle underlying the interpretation of its guarantees, protection was given to the personal sphere of each individual, including the right to establish details of their identity as human beings.
… In the twenty-first century the right of transsexuals to personal development and to physical and moral security in the full sense enjoyed by others in society could no longer be regarded as a matter of controversy requiring the lapse of time to cast clear light on the issues involved.
There is no excuse now for not granting this minority their full and unconditional human rights. This message from the Court has to be followed through in all Council of Europe member states. States must take all necessary actions to ensure that transphobia is stopped and to end any discrimination against transgender persons.