Across Europe, trans people are denied their right to have their gender recognized, unless they fulfill invasive requirements, such as undergoing sterilization or getting a psychiatric diagnosis. Human rights bodies have clearly affirmed: this is a violation of trans people’s human rights. Progress has been made, but when it comes to trans rights, Europe still has a long way to go.
A few months ago I was on my way to meetings at a human rights institution and about to go through security early in the morning. Coffee in my hand, prepared for my day and the fight I knew was coming. Each time, I need to get the security staff on my side so they enter my correct name and gender on my badge. Being a non-binary trans person, I use a name that is different from my legal name and do not identify with the gender that is on my ID. After a 10-minute back and forth about my name and gender marker, the officer posed a question that must have seemed quite simple to him. “But why don’t you just have your gender marker changed?”
Why don’t I?
Legal gender recognition
Trans people identify with a gender that differs from the gender that was assigned to them at birth. Many trans people want access to legal gender recognition (LGR) at some point in their lives, which means having their gender marker in their ID cards or passports changed, so it aligns with the gender they identify with. The lack of matching documents causes dysphoria, anxiety, discomfort, shame, humiliation to many. It may also expose us to discrimination and bar our access to basic services, such as picking up mail at the post office, boarding a plane, or getting our diplomas. It can also make us vulnerable to violence and harassment. No cisgender (i.e. not trans) person ever has to worry about their ID not matching who they are. For them, using documents is simply a part of everyday life. For us, it something that courts and doctors can decide over.
States have restricted the right to self-determination of trans people and policed their identity and expression for centuries. State policing does not only affect us. Countries in Europe and beyond seem to have an urge to control bodies and decisions when they pose a threat to cisheteronormative patriarchy. Take for instance laws and restrictions with regards to abortion. While these primarily target the agency of cis women, they also affect some trans people.
In the vast majority of European countries where LGR is available, it is conditional upon medical requirements, such as forced sterilization, examinations, or a mandatory psychiatric diagnosis. While many trans people wish to take hormones or access surgeries, definitely not all do. These medical interventions force trans people to undergo bodily changes they do not want. As some surgeries result in sterility, they also prevent trans people from becoming biological parents. In fact, many trans people want to and do have kids. While hormones do not prevent you from becoming a biological parent, sterility definitely does. Making trans people choose between their bodily integrity and a legal recognition of their gender is simply inhumane.
Providing social and legal recognition to trans people, legal gender recognition is key for non-discrimination. Yet, because of invasive requirements, the process of LGR across European countries further perpetuates and embodies discrimination and violence against trans people. Gender recognition is about changing your documents and should be handled as a simple administrative process. Although progress has been made, few countries in Europe provide for LGR in a way that is fully compatible with human rights standards.
In 2013, the UN Special Rapporteur on Torture affirmed that the forced sterilization of trans people - then legal in 27 countries in Europe - amounts to torture, cruel, inhuman or degrading treatment or punishment (TCIDTP). This has since been echoed by a variety of other UN actors, as well as the Council.
Human rights are not all absolute, i.e. in some circumstances, states can limit them. Freedom from torture and ill-treatment however, is recognized as an absolute right in international human rights law, i.e. states can make no arguments to justify it. The Special Rapporteur affirming that the sterility requirement violates an absolute right, was a major milestone in the evolution of trans rights protections globally.
In 2017, the European Court of Human Rights also stated its position on this issue, stating that forced sterilization is a violation of the right to private and family life. In October 2018, the European Committee of Social Rights established that it seriously impacts a person’s health, physical and psychological integrity, and dignity. It reaffirmed that trans people should not be forced to choose between their gender identity and physical integrity.
Despite these standards, in 14 European countries trans people are still forced to undergo sterilization to have their gender marker changed.
Mandatory psychiatric diagnosis
In 34 European countries, trans people need to get a psychiatric diagnosis of gender dysphoria or similar, to access legal gender recognition. This requirement has also been established as a human rights violation, by the UN and the Council of Europe alike.
As another milestone development, in June 2018 the World Health Organization removed all trans related diagnoses from the mental disorders chapter. The depathologization of trans identities was a major victory for trans movements globally. Needless to say, a large proportion of trans people do have mental health problems: due to discrimination and violence we face, we are at higher risk of depression, suicidal thoughts, anxiety and self-harm compared to the average population or even cisgender LGB people. Being trans however is not a psychiatric disorder per se. The mandatory diagnosis requirement violates the right of every person to self-determine their gender identity and perpetuates discrimination and violence.
In 21 countries there is a divorce requirement in place. This is closely interlinked with the right of same-sex partners to marry. It may happen, that a trans woman who had legally been recognized as male and is married to a woman, wants to legally transition and change her gender marker to the correct F. If the state does not recognize same-sex marriage, their union will be annulled. The divorce requirement has torn families apart, often leaving spouses and their children in a legal limbo. Some countries have also barred trans people from being to marry, even after the legal changing of their gender marker. For instance, a trans man has already changed their gender marker to the correct “M”, may not be allowed to marry (anyone), only because they have a trans history. This practice seems to be rare in Europe today, but have subjected trans people to discrimination for years before.
Other discriminatory requirements and restrictions
A large number of European countries also force trans people to undergo medical examinations, or take hormones before accessing LGR. As set out above, not all trans people want to transition medically and/or access hormone replacement therapy (HRT). Access to healthcare must be provided on the basis of self-determination and with the full and informed consent of the person concerned. Cisgender people can freely make decisions about the care they receive: not applying the same standard to trans people is discriminatory.
In some countries trans people must also pass a so-called “real-life” or “real life experience” test that request they live and present in line with their gender identity over a considerable period of time. This might expose them to further discrimination and violence, as their documents will not reflect their gender expression. Such tests are also discriminatory per se: no cisgender person ever has to prove they are male or female enough. Sadly enough, cis people might be also harassed for having a gender expression that is not stereotypical - but no one will take away their ID or passport.
With few exceptions, non-binary trans people in Europe, who do not identify exclusively as male or female, are unable have a gender marker on their IDs that matches their identity. 33 countries have age barriers in place, leaving trans youth vulnerable and stripping them from their agency. In most countries legal gender recognition is not accessible for asylum seekers and refugees, or people with psycho-social disabilities.
Is the situation improving in Europe?
In 2010 the Council of Europe issued recommendations to member states on issues of sexual orientation of gender identity, and called for legal gender recognition procedures that are quick, transparent, and accessible and free from abusive requirements. In a 2015 resolution on discrimination against trans people, the Parliamentary Assembly (PACE) welcomed the emergence of the right to having one’s gender identity recognized and added that LGR must be provided on the sole basis of self-determination. It also called on states to ensure a third gender marker option is also available on documents, in addition to male and female. In another resolution on the rights of intersex people in 2017, the PACE the went a step further and recommended states to consider making the registration of sex on birth certificates and other identity documents optional for everyone.
Overall, the legal situation with regards to LGR has definitely improved in Europe. The number of countries requiring sterility has decreased from 24 in 2013 to 14 in 2018. Greece has recently abolished the sterilization and diagnosis requirement. Sterilization and surgeries are no longer required in Slovenia, Lithuania, Switzerland and Russia. Trans refugees in Austria and France can now access legal gender recognition. In 2017, Malta introduced the gender neutral category of ‘X’ on national IDs and passports, which anyone can freely choose as an alternative to male and female. Denmark also allows for the ‘X’ gender marker on passports. Scotland and Ireland have recently announced that the recognition of non-binary people will be part of the ongoing LGR law reform process. National courts in the Netherlands, Germany, and Austria have ruled that only providing for the option of male or female is insufficient.
Yet, it is worrisome that only a handful of European states, Belgium, Malta, Ireland, Denmark, Norway and most recently Portugal, have established quick, transparent and accessible LGR procedures based on self-determination and only Malta provides for the ‘X’ option. In the rest of Europe, legal gender recognition is either limited to binary trans people, conditional upon one or more abusive requirements or not in place at all.
“But why don’t you just get your gender marker changed?”, said the security staff. “Because I would have to be sterilized” - I answered. A minute of silence must have passed, us standing on opposite sides of the officer’s desk. There is no right response to this, really. After the long and tense pause, he shuffled around on his desk, typed and clicked on his keyboard, and a few seconds later my correct badge was printed. It felt right. It felt fair. It was so simple, and yet so huge - just to be recognized. A simple declaration, a few clicks, the buzz of the printer - that is all it should take.
 Non-binary people do not identify with the sex that was assigned to them at birth and have a gender identity that does not correspond to being (exclusively) male or female. They might identify with being both, or neither of these two, their gender identity might be fluid, or they might not have a gender identity at all.
 See for instance https://tgeu.org/wp-content/uploads/2017/10/Overdiagnosed_Underserved-TransHealthSurvey.pdf
 Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez. A/HRC/22/53. Human Rights Council. 1 Feb 2013. https://www.ohchr.org/documents/hrbodies/hrcouncil/regularsession/session22/a.hrc.22.53_english.pdf
 The European Convention of Human Rights specifies the scope of these limitations in a number of articles. In the case of freedom of assembly for instance, limitations must be prescribed by law and necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. European Convention on Human Rights, Article 11. 4 Nov 1950. https://www.echr.coe.int/Documents/Convention_ENG.pdf
 A.P., Garçon and Nicot v. France, (Application nos. 79885/12, 52471/13 and 52596/13) . http://hudoc.echr.coe.int/eng?i=001-172913
 ICD-11 will be formally adopted in 2019. It is then up to states to implement it.
 Rainbow Europe, ILGA-Europe. https://rainbow-europe.org/
 Trans Rights Europe Index & Map. Transgender Europe. https://tgeu.org/trans-rights-map-2018/
 Rainbow Europe 2018. ILGA-Europe. https://rainbow-europe.org/
 Malta Introduces Gender-Neutral ‘X’ Option On Official Documents. Lovin Malta. https://lovinmalta.com/news/news-breaking/malta-introduces-gender-neutral-x-option-on-official-documents
 Denmark: X in Passports and New Trans Law Works. TGEU. Sept 2014. https://tgeu.org/denmark-x-in-passports-and-new-trans-law-work/
 In Germany and Austria, the cases were about intersex people but non-binary trans people will hopefully be able to choose the ‘X’ option or have the gender marker field empty in their documents.
 Portugal votes for self-determination. April 2018. https://tgeu.org/portugal-votes-for-self-determination/