MINISTERS’ DEPUTIES

CM Documents

CM(2022)99

7 June 2022[1]

1439th meeting, 6 July 2022 4 Human rights   4.8 Steering Committee on Anti-discrimination, Diversity and Inclusion (CDADI) Implementation of the Recommendation CM/Rec(2010)5 on measures to combat discrimination on grounds of sexual orientation or gender identity Thematic Report on Legal Gender Recognition in Europe Item to be considered by the GR-H at its meeting on 28 June 2022

 

CONTENTS

Introduction. 3

Section I - Main observations. 4

1.     Public opinion and legislative trends. 4

2.     Anti-transgender discourse. 6

3.     Evolution of international legal thinking. 8

a. Right to self-determined gender identity and States’ positive obligations. 8

b. Removing abusive requirements. 8

c. Quick, transparent and accessible procedures. 9

d. Age restrictions. 10

4.     State of play of national legislation in Council of Europe member States on Legal Gender Recognition (LGR) 10

a. Existence of measures to ensure LGR. 11

b. Medical requirements. 11

c. Divorce requirement 12

d. Age requirement 13

Section II - Good practices. 13

1.     Self-determination. 13

2.     Age limits. 15

3.     Cost and duration of LGR procedure. 16

Section III - Concluding remarks: LGR-related issues for further dialogue in CoE member States  16

1.     Moving away from the legacy of pathologisation. 16

2.     Removing divorce requirement 17

3.     Making self-determination-based LGR accessible to children. 17

4.     Including non-binary/gender-diverse persons in LGR. 18

5.     Making LGR accessible to non-nationals residing in the country. 19

6.     Comprehensive approach to LGR and its implementation. 19

Section IV - Recommendations. 19

APPENDIX: KEY TERMS AND ABBREVIATIONS. 21

Introduction

1.            The present thematic report stems from the CDADI decision^[2] to complement the comprehensive review of the implementation of Recommendation CM/Rec(2010)5 of the Committee of Ministers to member States on measures to combat discrimination on grounds of sexual orientation or gender identity^[3] with thematic reviews on one of the themes covered by CM/Rec(2010)5. In autumn 2021, the Council of Europe’s Committee of Ministers tasked the CDADI to review annually a thematic dimension of the Recommendation and to prepare a comprehensive review of the Recommendation by the end of 2025.

2.            The first thematic review focuses on legal gender recognition (LGR), understood as the legal recognition of a person’s gender identity, including name, sex/gender marker and other gender-related information, which may be reflected in surnames, social security numbers/personal identification numbers, titles etc., in public registries, records, identification documents (identity cards, passports, driving licences) and other similar documents (educational certificates etc.). As per Recommendation CM/Rec(2010)5 (paragraphs 20-22), “Member States should take appropriate measures to guarantee the full legal recognition of a person’s gender reassignment in all areas of life”; “prior requirements […] for legal recognition of a gender reassignment, should be regularly reviewed in order to remove abusive requirements”.

3.            Cyprus, Lithuania, North Macedonia and Spain have volunteered to participate in this thematic review and use this opportunity to advance their national reform process.

4.            This first thematic review gathered in-depth information and opened up an informed dialogue on LGR at national level thanks to the drawing up of national reports, the holding of multi-stakeholder roundtables and the issuing of recommendations in each of the participating countries. This process is also an opportunity for the Council of Europe to tailor its co-operation activities to the needs of member States.

5.            The present report provides an overview of the state of play of national legislation on LGR, summarises the development of international standards and compiles examples of good practices to empower stakeholders in addressing the human rights concerns of LGBTI persons (Sections I and II). It also highlights some issues for further dialogue and support from the relevant bodies of the Council of Europe (Council of Europe) (Section III) and recommendations to the attention of the member States (Section IV).

Section I - Main observations

1.     Public opinion and legislative trends

Overall increased support of public opinion

6.            Overall, support towards equal rights for LGBTI persons is reported to have grown in EU members States: the 2019 Eurobarometer survey data[4] shows that in the field of LGR, 59% of respondents think that transgender persons should be able to change their civil documents in accordance with their self-defined gender identity. The survey also reveals substantial differences between member States (see graphic below): 13 countries are well above this average figure: respondents’ support goes up to 83% in Spain and Malta or 82% in the Netherlands. Lower figures are recorded in 15 countries, decreasing to 20% in Romania, 16% in Hungary or 12% in Bulgaria.

Source: Special Eurobarometer – Discrimination in the European Union, (2019), European Commission

7.            Beyond the EU, it is encouraging to note that the 2018 IPSOS survey focusing on 16 countries from different regions in the world concluded that 60% of the people surveyed would like their country to do more to support and protect transgender persons.[5]

Information gap and misperceptions

8.            Evaluating public support for transgender persons’ human rights is a challenging task. In particular, the lack of information about the human rights situation of transgender persons among the general public is acute in certain countries, including in some EU countries. Research and monitoring by international agencies, international and local NGOs have helped to bridge the data gap and shed light on attitudes towards LGBTI persons in countries or regions not regularly covered by EU and other surveys. They highlighted higher levels of anti-transgender attitudes and significant pathologising attitudes in some regions and countries, with overall low level of acceptance in Southeast Europe^[6] and pronounced stereotypical attitude towards transgender persons in certain countries, notably in Eastern Europe.[7]

Slow progress on the legislative side

9.            On the legislative front, OECD data shows an increase in the share of laws passed that are critical to ensure equal treatment of LGBTI persons over the past two decades (see tables 1 and 2 on the percentage of LGBTI-inclusive legislation passed between 1999 and 2019). For transgender and intersex persons, legislative advances are reported to be slower but‘good progress’ was noted, in particular when depathologising LGR in the past 10 years: in 2019, 15 OECD countries allowed transgender persons to change the gender marker on their birth certificate and other identity documents without any medical requirement, while there was none in 2009.[8]

Table1: Source: Over the Rainbow? The Road to LGBTI Inclusion, OECD 2020

10.          With regard to LGR specifically, the results of the OECD questionnaire on LGBTI-inclusive laws and policies (2019) below[9] show that while more States have now LGR laws, a number of issues have seen limited improvements: these relate to not categorising being transgender as a mental illness in national clinical classification; availability of a non-binary gender option on birth certificates and other identity documents; and postponing medically unnecessary sex-normalising treatment or surgery on intersex children.

11.          In sum, it is positive to note an overall clear trend in supporting LGBTI persons’ rights taking root in Europe. However, progress achieved over the last decade in discussing gender identity or expression issues should be contrasted with the realities of discrimination faced by transgender persons. In fact, according to the surveys of the European Union Agency for Fundamental Rights (FRA), the experience of discrimination by transgender respondents has increased between 2012 and 2019 in all the areas of life surveyed[10]: while in 2012 43 % answered that they felt discriminated, this figure rose to 60 % in 2019.

2.     Anti-transgender discourse

12.          Major progress was observed regarding the visibility of issues relating to gender identity or expression and sex characteristics over the last decade. However, such progress has been coupled with a rise in opposition towards transgender persons’ human rights. A substantial rise in hate speech, both from political figures and leaders, including government representatives, religious leaders, in the media and online was observed by Council of Europe bodies together with an equally sharp increase in physical attacks on LGBTI persons[11].

13.          In her 2021 human rights comment, the Council of Europe Commissioner for Human Rights warned against the costly strategy of public officials and elected politicians scapegoating LGBTI persons for political gain and the perception of impunity such hateful messaging may leave.^[12] Such a trend has been thoroughly documented in the latest ILGA-Europe 2021 Annual review.^[13]

14.          Anti-transgender discourse is not only rising in selected countries. As co-ordinated anti-transgender narratives are spreading throughout Europe (and beyond), it is recognised as a pan-European problem: in its 2021 report on Combatting rising hate against LGBTI persons in Europe, Parliamentary Assembly of the Council of Europe noted that this rising hatred would “not simply be an expression of individual prejudice, but the result of sustained and often well-organised attacks on the human rights of LGBTI people throughout the European continent”, resulting in the perpetuation of gender inequalities and gender-based violence in the search of erasing what is seen as threats to traditional values.[14]

15.          In many Council of Europe member States, anti-transgender discourse is reported as heavily relying on anti-gender movements[15], which consider heterosexuality and gender identity based on biological sex to be the norm. Opponents to transgender persons’ rights have argued that giving attention to gender identity or expression issues would pose a challenge to the human rights of others[16], implying that there would be a competition for human rights protection when the essence of human rights is about protecting human dignity.

16.          The rejection of transgender persons can contribute to excluding them from public life and access to services: it limits their access to education, health care, housing and employment and is particularly felt by those most affected by multiple discrimination. It not only has a devastating impact on the persons concerned but also impedes overcoming gender stereotypes as a whole, obstructs gender equality[17] and harms society’s cohesion.

17.          Against this background, a group of United Nations and international human rights experts and monitoring bodies, including the Council of Europe Commissioner for Human Rights have called “on States, faith-based institutions, religious leaders and other stakeholders to consider the negative impact of exclusionary or stigmatising narratives on violence and discrimination against lesbian, gay, bisexual, transgender, and gender diverse (LGBT) persons” in their statement prepared for the International Day Against Homophobia, Transphobia and Biphobia on 14 May 2021.^[18]

18.          Reflecting on this negative trend and how lack of recognition of gender identity may lead to further stigmatisation, discrimination, harassment, humiliation, and physical and sexual violence[19], many of the stakeholders participating in the national roundtables organised as part of this review emphasised the need to include protection from hate speech and hate crime as part of a comprehensive approach when addressing LGR to ensure its effectiveness in guaranteeing respect of gender recognition.

3.     Evolution of international legal thinking

19.          European and international case-law have set out important benchmarks regarding LGR, although existing legal standards do not explicitly refer to transgender and intersex persons.

20.          The European Court of Human Rights (the Court) is the judicial institution that has dealt with the largest number of cases related to gender identity and transgender persons.[20] It has embraced evolving social realities and affirmed a right to self-determined gender as an essential manifestation of the right to protection of private life (Article 8 of the European Convention on Human Rights, ECHR). The Court has issued landmark decisions, offering minimum standards for the protection of transgender persons (see below).[21] Other bodies of the Council of Europe contributed to develop further the non-discrimination and equality dimensions on matters affecting transgender persons, including through CM/Rec(2010)5. The Council of Europe Commissioner for Human Rights, the European Commission against Racism and Intolerance (ECRI) and the Parliamentary Assembly have provided further guidance to States[22] and are important references for the Court to acknowledge the continuous evolution of international thinking on LGR.

a.     Right to self-determined gender identity and States’ positive obligations

21.          LGR has been much in focus of the Court’s jurisprudence concerning human rights cases of transgender and intersex persons over time. While ‘gender identity’ was already established to fall within the non-exhaustive list of protected characteristics set out in Article 14 of the European Convention on Human Rights (ECHR) on the right to non-discrimination, the Court has further considered that “elements such as gender identification, names, sexual orientation and sexual life fall within the personal sphere protected by Article 8”.^[23]

22.          In its landmark judgment, Goodwin v. the United Kingdom (2002)^[24], the Court ruled for the first time that the applicant had a right to gender recognition and established the corresponding obligation for the State to secure that right.

23.          This was the first of a series of judgments in which the Court has further reviewed the means employed by States to comply with their obligation to provide for LGR. The following paragraphs detail the requirements for LGR which the Court considered to be in breach of Article 8 of the ECHR on the right to respect for private and family life.

b.    Removing abusive requirements

b.1. Sterilisation and medical intervention

24.          For the Court, any requirements of irreversible changes in the individual's metabolism would amount to a violation of the right to private life (Article 8 ECHR): this includes medical intervention, or sterilisation requirements. In YY v. Turkey (2015)^[25], the Court ruled that sterilisation cannot be made a prerequisite for access to LGR. In its judgment, A.P, Garçon and Nicot v. France (2017)^[26], the Court explicitly ruled that the requirement of infertility to obtain LGR violates the right to physical and moral integrity under Article 8. With regard to diagnosis requirements, the Court took a more differential stance, even though it did note that “the psycho-pathologisation of transgender persons reinforces the stigmatisation of which they are victims” (para. 138). Such diagnosis requirements are seen increasingly critically, as they are not compatible withthe international trend toward the full depathologisation of transgender persons. ECRI recommends[27] that “relevant legislation is amended to allow gender changes in personal documents, without the requirement for completion of full medical gender reassignment procedures, particularly surgery”. International agencies and experts have united to underline the need for a total abolishment of all forms of pathologisation, including requiring the assessment by a medical or other expert for LGR (see the 2016 Inter-Agencies Declaration on the occasion of the International Day against Homophobia, Transphobia and Biphobia Pathologisation[28]). Moreover, this trend is also reflected in the increasing number of Council of Europe member States that have reformed their legislation concerning LGR (see Section III on good practices). In its most recent judgment, X. and Y. v. Romania (2021), the Court moved towards greater recognition of self-determination to transgender persons: it established that conditioning LGR to gender affirming surgery in a case where the applicants refused such surgery on the ground of the invasiveness of the medical procedure itself (regardless of its impact on fertility) violates Article 8 of the ECHR.^[29]

b.2. Divorce

25.          The Court acknowledged that the requirement for married transgender applicants to get divorced before having access to LGR leads to daily situations in which a transgender person faces “inconveniences”. When in the case Hämäläinen v. Finland (2015) the Court found that a divorce requirement was not disproportionate, it was due to the availability for the applicant of a genuine option that provides legal protection for same-sex couples almost identical to that of marriage: “if the applicant wishes both to obtain legal recognition of her new gender and to have her relationship with her wife legally protected, Finnish legislation provides for the possibility to convert their marriage into a registered partnership, with the consent of the applicant’s wife” (§ 77).^[30] In contrast, the United Nations Human Rights Committee found in its case G v. Australia (2017)[31] that divorce requirements do violate the rights to privacy and equality under Articles 17 and 26 of the International Covenant on Civil and Political Rights. It held that “even though failure to provide access to marriage for same-sex couples may not constitute a violation of the ICCPR, consistency between birth registrations and the Marriage Act was not a legitimate aim”, and concluded that the national policies were inconsistent and discriminatory.

c.     Quick, transparent and accessible

26.          Making possible the change of name and sex in official documents in a quick, transparent and accessible way is a key recommendation of CM/Rec(2010)5. These principles have been taken into account by the Court when examining the implementation of LGR procedures in some member States.

27.          In its jurisprudence, the Court reviewed the time span between applying for and being granted LGR and found that a transgender person’s right to privacy had been violated due to the excessive duration of the proceedings. The Court highlighted that rigid and long judicial LGR procedures leave transgender individuals vulnerable and are contrary to the aims of the ECHR^[32], and that protracted examination of a claim has long-term negative consequences for mental health.^[33]

28.          In several cases, the Court addressed issues of legal clarity both in terms of language and responsible authorities and concluded that the lack of clarity of the legal framework on LGR amounted to a violation of Article 8. It did reach such a conclusion for example when noting that national courts reached very varying conclusions about the conditions and procedure for LGR^[34], or when it observed that any conclusion on the applicants’ request would be “precariously close to speculation” hence creating a situation of legal uncertainty for the applicants. The Court also noted that transparency is lacking when “no provision clearly specifies the body that has jurisdiction to decide on a request”.^[35]

29.          Aspects such as costly and long court or administrative procedures may place substantial economic barriers to LGR in practice. In addition, some transgender persons might be unable to fulfil certain prior requirements for LGR, for instance due to their age or health status.^[36] This in turn calls for due consideration to be given to the personal situation of the applicant.

d.    Age restrictions

30.          Explicit or implicit age restrictions may obstruct the best-interest-principle for young as well as elderly transgender persons. In Schlumpf v. Switzerland (2009)^[37], the Court held that the personal circumstances of the persons should be prioritised over a mechanical application of the law.

31.          In conclusion, the Court’s case law has dynamically evolved since it declared a violation of Article 8 concerning the recognition of transgender persons for the first time almost 30 years ago in the case of B. v. France in 1992.[38] What was considered a breakthrough at the time needs to continuously evolve not only to reflect the evolution of societal norms and attitudes with regard to gender identity but to offer genuine protection to all, including transgender and intersex persons.

Diagram 1 - International Human Rights Law Benchmarks

4.     State of play of national legislation in Council of Europe member States on LGR

32.          Several Council of Europe member States, including the four countries participating in the review project have engaged in improving their LGR procedure (or lack thereof) and have used existing Council of Europe support to steer legislative work towards ensuring that access to LGR is based on the declaration of the person with no additional requirement (self-determination model). For all four countries, building consensus on a bill on LGR continues to be a challenging undertaking: the pressure of opponent forces, whether in Parliament, in a coalition government or among high level decision-makers may indeed lead to a lowering of the required level of protection granted to transgender persons in LGR.

33.          The national roundtables in all four countries have shown that discussions greatly benefited from experiences of other countries that have successfully passed new legislation on LGR that respects the case-law of the Court. Roundtable participants also expressed interest in being provided with an overview showing how other Council of Europe member States have addressed certain LGR requirements and what are the overall trends in Europe on these. For the present report to support future national debates on LGR reforms, the following paragraphs attempt to summarise the main provisions and requirements for LGR across Council of Europe member States and group together countries’ approaches accordingly. The following broad categories are used:

a)     Measures to ensure LGR

b)    Medical requirements

c)     Divorce requirement

d)    Age restrictions

34.          This clustering approach draws (and geographically expands) on the 2020 Study on LGR in the EU commissioned by the European Commission.^[39] It is based on available data^[40] and may not entirely reflect the practice of implementation in the countries concerned. It may however be considered as a starting point and may be consolidated with additional data that the members of the CDADI working group on sexual orientation and gender identity (GT-ADI-SOGI) and of the CDADI could provide regarding the situation in their countries.

a. Existence of measures to ensure LGR       

 

Type of measures	Countries
Legal or administrative measures, including case law	39 member States Austria, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Czech Republic, Cyprus, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Iceland, Ireland, Italy, Latvia, Luxembourg, Liechtenstein, Lithuania, Malta, Moldova, Montenegro, Netherlands, Norway, Poland, Portugal, Romania, Russian Federation, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine, United Kingdom.
No procedure laid down (or LGR made impossible*)	8 member States: Albania, Andorra, Armenia, Azerbaijan, Hungary*, Monaco, North Macedonia, San Marino. *Hungary: The March 2020 Omnibus Law replacing the changeable characteristic of “sex” with an immutable “sex assigned at birth” has made LGR impossible.

b.    Medical requirements

Medical requirements	Countries
Self-determination	9 member States* with a self-determination model (see Section IV for details) Belgium, Denmark, Iceland, Ireland, Luxembourg, Malta, Norway, Portugal, Switzerland. *Some autonomous communities in Spain have also endorsed a self-determination model.
Compulsory medical intervention	24 member States Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Estonia, Finland, Georgia, Italy**, Latvia, Liechtenstein, Lithuania, Montenegro, Poland, Romania, Russian Federation, Serbia, Slovakia, Slovenia, Spain*, Sweden, Turkey, Ukraine, United Kingdom*. * In some regions only. ** Decisions of the Constitutional Court no. 221/2015 and the Court of Cassation no. 15138/2015) ruled out compulsory medical intervention for LGR.
Compulsory sterilisation	13 member States: Bosnia and Herzegovina, Bulgaria, Cyprus, Czech Republic, Finland, Georgia, Latvia, Liechtenstein, Montenegro, Romania, Serbia, Slovakia, Turkey.
Compulsory medical diagnosis (gender identity disorder or psychological evaluation)	27 member States: Austria, Bosnia and Herzegovina, Bulgaria, Croatia, Czech Republic, Estonia, Finland, Georgia, Germany[41], Italy, Latvia, Liechtenstein, Lithuania, Moldova, Montenegro, Netherlands, Poland, Romania, Russia, Serbia, Slovakia, Slovenia, Spain*, Sweden, Turkey, Ukraine, United Kingdom. * In some regions only.
No compulsory medical diagnosis	10 member States: Belgium, Denmark, France, Greece, Iceland, Ireland, Luxembourg, Malta, Norway, and Portugal.

c.     Divorce requirement

Marriage	Member States
No divorce requirement	19 member States: Austria, Belgium, Denmark, Estonia, Finland, France, Germany, Iceland, Ireland, Luxembourg, Malta, Netherlands, Norway, Portugal, Spain, Sweden, Switzerland, Ukraine, and the United Kingdom.
Divorce required or de facto divorce In some countries, in the absence of recognition of same-sex marriages and/registered partnerships, the existing relationship of an LGR applicant may become legally void or have an unclear status after they access LGR.	19 member States: Bosnia and Herzegovina, Bulgaria**, Croatia**, Cyprus**, Czech Republic**, Greece, Italy*, Latvia**, Liechtenstein, Lithuania**, Moldova, Montenegro, Poland**, Romania**, Russia, Serbia, Slovakia, Slovenia**, Turkey. *Italy: an automatic conversion into a civil partnership is possible for those who want to avail themselves of this possibility, hence mitigating the impact of the divorce requirement. **In the following countries, a legal void is reported with respect to marital status: Bulgaria, Croatia, Cyprus, Czech Republic, Latvia, Lithuania, Poland, Romania and Slovenia.

d.    Age requirement

Age restrictions	Member States
LGR accessible to children (although some restrictions may apply, see below for detailed conditions, where relevant)	17 member States Austria, Belgium, Croatia, Estonia, France*, Germany, Greece, Iceland, Italy, Luxembourg, Malta, Montenegro, Netherlands, Norway, Portugal, Spain and Switzerland. *France: only “emancipated children” upon decision of the judge.
Self-determination applies (maturity of child is the guiding principle)	Malta, Luxembourg, Spain (in 9 of 17 regions).

Section II - Good practices

35.          This section includes a selection of national legislation and/or case law about LGR procedure based on self-determination that puts in place quick, transparent and accessible procedures. It also provides examples of countries where discussion on age restrictions regarding LGR have led to revisiting existing legal provisions.

1.   Self-determination

36.          Nine Council of Europe member States have opted for an approach largely based on self-determination, with some limitations in some cases (including age restrictions which is detailed further below). Discussions on the reforms needed to address these limitations continue to take place in those countries and the information reflects the compromises made at the time of legislative change, with the understanding and knowledge of the self-determination models then available.

37.          The procedures following the self-determination approach are the most accessible ones where recognition of a person’s gender identity is self-defined, and not determined by anyone other than the individual. They do not require compulsory medical intervention, surgery or sterilisation or other intrusive requirements.

2.   Age limits

38.          There have been on-going discussions in some Council of Europe member States about reconsidering age limits for LGR, especially since age limits may lead to young transgender persons facing rejection, exclusion or other problems from their environment in everyday life. The paragraphs below focuses specifically on the steps taken by some States to ensure a more flexible approach to LGR for children.

39.          These include States like Malta or Luxembourg where the legal framework on LGR is without an age limit. Emphasis is placed on the maturity and development of the child. Court procedures for those below age 16 (Malta) and for those below age 5 (Luxembourg) follow specific procedural safeguards: In Luxembourg^[52], the law foresees that in the event of disagreement between the parents of a child aged five years, the most diligent parent applies to the competent authority which rules in the interests of the child. In Malta^[53], the child must have parental consent or the consent of the persons exercising parental authority or the tutor in order to initiate the request. The person exercising parental authority, or the legal guardian, must file an application in the registry of the Civil Court requesting the Court to change the recorded sex and the first name of the child with the express consent of the child. When the application is made on behalf of a child, the Court must: (a) ensure that the best interests of the child as expressed in the Convention on the Rights of the Child are the paramount consideration; and (b) give a due weight to the views of the child having regard to the child’s age and maturity.

40.          Others have included children while keeping some age limits. Legislation in Norway^[54] for example provides that LGR is possible at any age but imposes certain conditions according to age groups. Children between 6 and 16 must apply together with the person or the persons who have parental responsibility of the child. For children under the age of 6, the application must be filed by the person who has the parental responsibility for the child. If the parents have shared custody, but the application is only filed by one of them, the legal gender may nevertheless be changed if this is in the child’s best interest.

3.   Cost and duration of LGR procedure

Quick, transparent and accessible procedures

41.          The following section provides examples of reforms that have addressed certain aspects of the principle of “quick, transparent and accessible procedures” for LGR:

Section III - Concluding remarks: LGR-related issues for further dialogue in Council of Europe member States

42.          This section aims at highlighting some of the main problems related to LGR which may benefit from further discussions between national stakeholders, with Council of Europe facilitation and support. There are clearly distinct legal and practical situations with regard to LGR across Council of Europe member States. Some States have already put in place some advanced models of self-determination. Others have rolled back existing protection by making LGR impossible. The level of protection for LGR achieved at a certain point in time cannot be considered locked once and for all. Like all human rights, it requires adaptation to present-day needs and adjustments of the legal framework according to impact assessments and latest international trends: this could include for example making their LGR self-determination procedure more inclusive for children, non-citizens residing on their territory or open to non-binary and intersex persons. In other countries, priorities may rather focus on establishing (or re-establishing) minimum protection for LGR, starting with providing legal certainty about procedures and/or depathologising the procedure. Peer-to-peer learning and a sliding scale approach could be used, in which the experience of some Council of Europe members States would help other States in moving up their level of protection.

1.      Moving away from the legacy of pathologisation

43.          In the majority of member States, LGR procedures still carry the legacy of pathologisation with medical requirements ranging from forced sterilisation to non-necessary medical procedures, including surgeries and hormonal therapies, undergoing medical diagnosis, psychological appraisals, medically supervised “real-life experience” or other medical procedures or treatment.

44.          Requiring sterilisation or irreversible identity change through an operation in the national legislation has been clearly established by the Court as breaching international human rights standards, including Article 8 of the ECHR. The sterilisation requirement is now on its way out, with a decreasing number of countries including such a requirement.

45.          Whereas there should not be any coerced medical treatment, the Court’s case law requires and Recommendation CM/Rec(2010)5 calls on member States to provide gender-affirming health services[55] such as hormone treatment, surgery and psychological support to transgender persons and to ensure that they are covered by health insurance.[56]

46.          The decision of the World Health Organisation (WHO) to remove transgender-related categories from the Chapter on Mental and Behavioural Disorders of the International Classification of Diseases Version 11 (see the 72nd World Health Assembly (WHA) in 2019)[57] was also a positive step for recognising gender diversity and depathologising it.

47.          Despite this evolution, legislation and current discussions on LGR in some countries are still dominated by medical considerations, with LGR being only possible upon medical diagnosis in several countries. Facilitating national and international exchanges between health experts, transgender and intersex civil society and the human rights community may help in moving away from pathologisation: they may help understand why being a transgender person has nothing to do with a mental health condition and why keeping a pathologising approach leads to stigmatisation and the risk of human rights violations.

2.     Removing divorce requirement

48.          In a relatively large number of Council of Europe member States, a divorce requirement conditions access to LGR, raising issues of compatibility with international human rights law, notably on the right to the protection of private life and non-discrimination (see Section I).

49.          Including such a requirement in the law (or in practice) places applicants for LGR in a situation whereby they must choose between their personal self-determination and their right to marriage. In practice, the law makes them renounce their marriage, often against the explicit will of the spouses who wish to remain a legally recognised family unit. Such a requirement has also negative consequences not only for the couple and the acquired rights and protection of the marriage: for the families who have children in their care, the parent who asked for LGR may lose custody rights of the children and the best interest of the children may be at stake.

50.          There are however progressive legal and case law developments in Council of Europe member States that have positively addressed these issues: some Council of Europe member States have made it explicit that no one may be required to be single before applying to LGR (see the examples of Denmark, Ireland, Luxembourg, Malta, Norway and Portugal). Some other States’ legislation respects the integrity of the existing marriage after LGR (Austria, Belgium, France, Germany, Iceland, Netherlands, Spain, Sweden, Switzerland) and provides for the marriage certificate to be updated accordingly. In the case of Germany, the removal of the divorce requirement in the law came after the Constitutional Court ruled that such a requirement for the purpose of LGR was contrary the German Constitution, despite the existing option of registered partnership available to same-sex partners. In the Court’s view, “The spouses may determine themselves how they will conduct their marriage. If the state pushes spouses towards divorce, this does not only go against the essential characteristic of a marriage as a lasting community of responsibility, but also takes away from marriage the protection guaranteed by Article 6(1) of the German Fundamental Law.”^[58]

51.          These examples may help in reviewing LGR laws that exclude married people and ensure compliance with the Court’s jurisprudence highlighting that protection of the acquired rights of marriage needs to be in place, should divorce be required (see Hämäläinen v. Finland(2015), Section 1 of this report).

3.     Making self-determination-based LGR accessible to children

52.          Most transgender persons realise that their gender identity does not match their sex assigned at birth before reaching the age of 18.[59] An EU commissioned study further describes how young transgender respondents have “repressed their feelings about their gender identity and delayed coming out for decades rather than years, due to their strong fear of familial rejection or losing their jobs”.[60]

53.          International human rights standards[61] are clear in highlighting the need for the best interests of the child to be given prime consideration, also when these interests collide with those of the persons exercising parental responsibility. This includes respecting the child’s right to express views in accordance with age and maturity.

54.          Despite this background, relatively few Council of Europe member States have included in their legislation provisions allowing transgender children to have their gender identity legally recognised. While self-determination has been increasingly endorsed for LGR of adults, children are still facing regulations that are based on outdated medical standards or are placing automatic barriers. On the positive side, countries like Malta, Norway or Luxembourg and some regions in Spain have ensured that children have the right to LGR and can exercise this right on the basis of self-determination.

55.          While no unified approach on this matter exists, there is a recent evolution to progressively remove age barriers: some States like Finland, Denmark and Sweden have engaged in evaluating the implications of lowering age restriction in an attempt to move away from strict age limits. These discussions together with the positive examples stated above may help other countries willing to re-examine their legislation on this point.

4.     Including non-binary/gender-diverse persons in LGR

56.          With human rights law further consolidating the right to change gender from female to male or vice versa, the question has arisen on approaches to be taken on recognising a gender identity that is neither male nor female or is both. In other words, the question of recognising persons who do not fit within the binary system has gained ground.

57.          Some member States have introduced legal reforms in order to recognise a non-binary or gender-neutral registration, following principles 3 and 31 of the Yogyakarta Principles +10^[62] on the application of international human rights law in relation to sexual orientation, gender identity, gender expression and sex characteristics.

58.          Some national courts have already examined issues on non-binary recognition, prompting legislative changes. The below includes examples of countries allowing the registration of gender markers other than male or female, using gender neutral or no gender markers in official documents.

·  Austria: Option “diverse” is available for intersex persons since 2019 (Constitutional Court, 15 June 2018 (G77/2018-9)).

·  Belgium: The absence of non-binary recognition in law violates the constitutional right to equality and non-discrimination (Constitutional Court, 19 June 2019 (judgment no. 99/2019^[63])). A new law is now being prepared which would remove all reference to sex in identity documents .^[64]

·  Germany: Option “diverse” or no sex marker available since 2018 for intersex persons (Federal Constitutional Court, 10 October 2017 (1 BvR 2019/16)).

·  Iceland: Gender neutral registration. Persons registering their gender as “X” are allowed to take gender neutral family names in lieu of patro- and matronymics that designate the person as being someone’s son or daughter (Article 6 of the Act on Gender Autonomy[65]).

·  Malta: Option “X” available since 2018.

·  Netherlands: Option “X” is possible through a judicial procedure since 2018. Some changes to stop registering gender have already been made by local councils of cities like Amsterdam and Utrecht. There are currently discussions in the Dutch Parliament to reform the registration of sex/gender markers.

59.          Research and discussions are on-going on what are the most appropriate measures to take with regard to making non-binary recognition possible. For example, some of the measures listed above have also been criticised for their stigmatising effects. In the context of its examination of the human rights of intersex persons, Parliamentary Assembly discussed this issue and recommended “to consider making the registration of sex on birth certificates and other identity documents optional for everyone”.^[66] In its 2018 study on non-binary gender registration models in Europe^[67], ILGA-Europe detailed models for third gender marker or no gender marker options while posing the human rights implications of the option chosen and being sensitive to categorisation. Experience from member States together with the studies and recommendations already available could help those States which are considering such reforms.

5.     Making LGR accessible to non-nationals residing in the country

60.          Human rights protection extends to everyone whether they are nationals or not. The recent Court judgment, Rana v. Hungary (2020)[68], reminded member States of that fact: the Court ruled that restricting access to LGR to a transgender applicant with no birth certificate from Hungary was an unjustifiably restrictive practice which is in breach of the member state’s positive obligation to protect private life under Article 8 of the ECHR. In the case in question, the applicant had been granted refugee status precisely because the person had been persecuted on the grounds of gender identity in the country of origin. The Court hence acknowledged the obstacles faced by migrants approaching their country of residence for changing their registered gender. The consequence of such a ruling may be subject to further discussions among Council of Europe member States, the majority of which give access to LGR only to their nationals.

61.          Positively, some Council of Europe members States such as Germany, Greece, France, Malta, Luxembourg and Switzerland enable refugees and stateless persons to change their name and/or gender, while Iceland and Luxembourg extend this right to anyone seeking asylum. The Netherlands, Norway and Belgium also enable people born abroad who are not permanent residents or citizens (migrants and foreign residents) to access LGR.

6.     Comprehensive approach to LGR and its implementation

62.          How LGR is experienced by those concerned depends on a range of laws, policies, regulations, administrative procedures and court rulings that go beyond those specifically about LGR, and include provisions relating to many other areas of life, such as education, employment, health, marriage, child custody, privacy etc.

63.          On its own, legal gender recognition does not eliminate discrimination against transgender, intersex and gender-diverse persons. It is also necessary to address the discrimination and violence that transgender people face. In a context where stigma prevails against transgender persons, even when progressive legal provisions exist, implementation practices can still impose unjustified, abusive or discriminatory requirements.

64.          Measures in countries with comprehensive legal frameworks on LGR, such as Malta and Portugal, have a broad focus on human rights and the application of gender recognition to other areas of life such as privacy, health and protection from discrimination. They also include comprehensive provisions for implementation with concrete and targeted steps while providing remedies and redress if violations occur.

Section IV - Recommendations

65.          Overall, this thematic review process has shown solid benefits in supporting planned or on-going reforms in the field of LGR, enhancing the visibility of the human rights issues raised by LGR, facilitating dialogue between all stakeholders and importantly, giving a voice to transgender and intersex persons in the discussions of the issues that affect them in their lives.

66.          Based on the lessons learned from this first review, some recommendations are hereby included regarding improvement of legislation and practice for LGR:

General Recommendations:

67.          Comprehensive equal treatment legislation should be accompanied by appropriate policy measures for its implementation and coupled with regular reviews to ensure effective responses to evolving human rights challenges of transgender, intersex and gender-diverse persons.

68.          Member States which currently have no anti-discrimination legislation in place specifically protecting gender identity should move towards appropriate legal and policy protection of these grounds.

69.          Where hate speech and hate crime legislation does not explicitly recognise criminal acts on the basis of motives linked to the victim’s gender identity or sex characteristics, member States should address this gap by legislation that makes it possible to consider these motives as “aggravating circumstances” and giving specific attention to the protection of victims in accordance with existing international standards and guidelines.

Legal Gender Recognition Specific Recommendations:

70.          In line with the Court’s case law and following the example of a considerable number of member States, provisions requiring sterilisation or any other compulsory medical treatment as requirements for LGR should be abolished. A clear separation should be made between the legal gender recognition process and any sex- or gender-related medical care that a person freely decides to undertake based on informed consent. Such treatment should be accessible independently of medical status, age or migration status.

71.          In order to better understand the issue of depathologisation in LGR procedures, including the issue of medical treatment, mandatory mental-health assessments and diagnosis, member States should facilitate discussions between transgender persons, intersex persons, civil society organisations representing them, health professionals, human rights experts and authorities.

72.          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, and that a solution to protect those rights is in place, in line with the Court’s jurisprudence.

73.          Member States should ensure that LGR procedures for children centre on the best-interest-of-the-child principle and should review explicit or implicit age restrictions that may obstruct that principle in order to ensure children’s access to legal recognition, health and security.

74.          In order to capitalise on existing experience of some 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 sex/gender markers in official identity and other documents.

75.          Member States should engage in the examination of existing restrictions to non-nationals’ access to LGRin light of the Court’s judgment Rana v. Hungary (2020).

APPENDIX: KEY TERMS AND ABBREVIATIONS

Key terms[69]

Gender identity: is understood to refer to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical, or other means) and other expressions of gender, including dress, speech and mannerisms.

Gender expression: social expression of an individual’s gender identity, including the use of name, pronouns, clothing, haircut, behaviour, voice, or body characteristics.

Gender/Sex marker: Legal sex appearing on documents (birth certificates, identification documents, etc.).

Intersex: Persons born with biological sex characteristics that do not fit societal norms or medical definitions of what makes a person male or female. Sometimes, a person’s intersex status is detected at birth, sometimes it only becomes apparent later in life notably during puberty. There are many forms of intersex, it is an umbrella term rather than a category.

Legal Gender Recognition: is understood as the legal recognition of a person’s gender identity, including name, sex/gender marker and other gender-related information, which may be reflected in surnames, social security numbers/personal identification numbers, titles etc., in public registries, records, identification documents (identity cards, passports, driving licences) and other similar documents (educational certificates etc.).

Self-determination: a procedure to access legal gender recognition based on a declaration (such as a statutory or notary statement) by the person concerned, with no additional requirements.

Sex: refers to the biological characteristics used to define humans as female or male. These sets of biological characteristics are not mutually exclusive.

Transgender: is an umbrella expression referring to persons who have a gender identity different from predominant social expectations based on the person’s sex assigned at birth.

Abbreviations

CDADI:                 Steering Committee on Anti-Discrimination, Diversity and Inclusion

CM/Rec(2010)5:     Recommendation CM/Rec(2010)5 of the Committee of Ministers to member States on measures to combat discrimination on grounds of sexual orientation or gender identity

EFPN:                   European Governmental LGBTI Focal Points Network

ECHR:                  European Convention on Human Rights

ECRI:                    European Commission against Racism and Intolerance

EU:                       European Union

FRA:                     Fundamental Rights Agency of the European Union

GT-ADI-SOGI        CDADI working group on sexual orientation and gender identity

INGOs:                 International Non-Governmental Organisations

LGBTI:                  Lesbian, Gay, Bisexual, Transgender and Intersex persons

LGR:                     Legal Gender Recognition

NGOs:                  Non-Governmental Organisations

PACE:                  Parliamentary Assembly of the Council of Europe

SOGIESC:            Sexual orientation, gender identity or expression and sex characteristics

the Court:             European Court of Human Rights

WHO:                    World Health Organisation