When we discuss the needs of transgender persons and the legal recognition of their gender, some people doubt the need and necessity to create proper legislation for a small number of people. However, extensive research which has been carried out in The Netherlands, shows that 0,6 percent of people born as male, and 0,2 percent born as female feel the desire to (partially) alter the gender assigned to them at birth. This comes down to around 48.000 people in The Netherlands. This leads me to conclude that there are more than 3 million transgender persons living in Council of Europe member states! By no means a small number. To have your gender identity legally recognized in a quick, transparent and accessible way is a human right; many of Europe’s 3 million transgender persons do not enjoy this right.
The Netherlands’ previous legislation made transgenders undergo sterilization and gender reassignment surgery in order to have their gender legally recognized. This is now seen as a violation to the right to bodily integrity. Transgenders who did not want to, or who were unable to meet these requirements were confronted with discrimination on a daily basis because their gender expression did not match with their official documents.
The Netherlands values human rights of all and puts great effort into upholding international human rights standards. Recommendation (2010)5 states that our previous law did not meet the minimum standards the Committee of Ministers agreed upon. We can proudly say that our new law does.
On the first of July 2014 a law entered into force that makes it easier for transgender people to alter their gender on their birth certificate and other official documents. The law revises the Netherlands Civil Code. The amendment makes an important contribution to equal rights of transgender people.
Let me briefly describe to you on what principles our current law is based. Surely we followed the Council of Europe’s Recommendation which states that procedures need to be quick, transparent and accessible. The Dutch law also reinforces the right to self-determination and the right to physical integrity. Transgender people can define their gender identity without obstruction and they can participatein social lifemore quickly in their preferred gender.
So how are these values: self-determination, physical integrity and the ability to participate in social life expressed in the law?
Transgender people are currently no longer required to undergo gender reassignment surgery to change their physical appearance to the gender they prefer. The so-called sterilization-requirement has also been abolished. These previous requirements meant that transgender people had to be infertile and had to undergo unnecessary surgery in order to alter their gender on the birth certificate.
With the new law, the procedure is simplified because a court order is no longer a necessity.
Instead of going to court transgender people only need a statement from an expert that affirms the person’s permanent conviction to belong to another gender. You can see this affirmation as a midwife who will affirm that a pregnant woman is indeed delivering a baby. It is transgender persons who determine their gender identity, the expert will only inform the person and affirm that the conviction of a person that he or she belongs to the other gender is of a permanent nature. In short: it is based on informed consent.
Besides the human rights aspects, there is an opportunistic benefit to the new procedure: The fact that legal gender recognition became an administrative procedure, instead of a court procedure, saves the government money.
With the statement from the expert transgender people can request the registrar of the municipality to modify the certificate. The modification of the birth certificate will be reflected in other official databases, such as the Municipal Personal Records Database. This has consequences for the passport, other travel documents and school and university diplomas.
The new law makes it possible to change the person’s forenames simultaneously.
Furthermore, the age limit has been lowered to the age of16 years.
Now how did this law come about? Several Ministries participated in the drafting process. But the government did not draft the law independently; NGOs such as Transgender Network Netherlands have contributed greatly to the quality of the law. I would urge other countries to do the same and include NGOs, the Council of Europe’s SOGI Unit and experts from organisations such as Transgender Europe in the process.
As all policy officers and legislators in this room will know; it is quite easy to draft a law, but it is very difficult to know how a law will actually play out in practice. In The Netherlands we try to anticipate on this by evaluating the law after 3 years. This evaluation will focus specifically on the age limit. We will review whether the age limit of 16 years is appropriate or whether this should be lowered to 12 years.
Let me wrap up. Adopting this new transgender legislation did come with some political and practical challenges. But the human rights of transgenders deserve a bit of effort. However countries want to shape their legislation regarding legal gender recognition, it should meet the minimum requirements we have agreed upon in Recommendation (2010)5. Gender reassignment surgery and sterilization as requirements for legal gender recognition do not fit the values we protect and promote in Europe. Use the expertise of your NGOs and of Transgender Europe and the Council of Europe, and you’ll find that drafting and implementing proper legislation regarding legal gender recognition will not be difficult at all. Actually, it is quite easy.