Are the Netherlands about to abolish gender registration?

One might be tempted to think so, following the recent developments. First they liberalise the gender change legislation for trans people. Then the Justice Ministry orders an investigation into the issues with binary gender registration. Now an expert meeting will take place and conservative government party VVD calls for abolition plans to presented next year and next for month a debate is planned.

Some years ago the LGBT and feminist networks of the Dutch Green party already issued a manifesto and a debate on the usefulness and rightfulness of gender registration. One conclusion was the resistance is shared widely but not necessarily deeply felt. And this week conservative MP Jeroen van Wijngaarden writes on his personal MP blog page he also is against “unnecessary” registration. After the D66 liberals recently opened the debate, first on a local level and later in Parliament. The 13 March 2015 published report “M/F and beyond” (“M/V en verder”) by the Scientific Research and Documentation Centre (WODC) of the Ministry for Justice and Security did a good job. And maybe all the publicity around the gender recognition legislation in the Netherlands helped getting the issue more acute.

Who benefits?

The group for who a different solution of the currently limited gender registration is of importance, is bigger than thought before. The most recent results in the Netherlands (Kuyper, 2014) mention 2% who are not happy with their birth assigned gender, and 5% gender ambiguous people. The EU Fundamental Rights Agency talks about 25% of the petitioned trans population in Europe identifying as “other”. Another 15% is queer. In total some 45% does not identify in a binary sense, if we count cross dressers with the transsexuals/transgenders/ men/women (with a “trans past”).

In the 2011 Dutch Social Research Agency SCP report 22%of the interviewees identified in a non-binary way. As Kuyper writes in a blog about the Dutch survey, to count the number of people suffering from headache, one does not go the headache polyclinic, so why would we do that when counting trans* people? Thereby Kuyper explains the striking difference in numbers between medical data and (more) sociological data. Also in recent years the trans population has grown through an increase in emancipation and better legal protection. If then the trans population is growing and the group of non-binary identifying is that big, there is a reason to have this reflected in legislation.

Six countries do it differently

Up to now six countries* are known for having a way out of (only) binary gender registration. There is a globally valid way out, codified by the ICAO (link to blog) that requires an X for “unknown, not registered” as alternative to M or F. But not all the countries deviating from the dichotomous standard comply with this. India for example chose “others” as description. Australia has five gender registration options and New Zealand offers M/F/X every time one needs to enter gender registration (also officially). Denmark is the most recent now and Malta underway. The UK has – again – an Early Day Motion pleading for genderless passports.

Now who do the regulations apply to? To everyone? Only to trans people? To trans and intersex people? To everyone? Which are the criteria that apply? Is the solution a real one? What are the consequences? Which options are there? What can be imagined with regard to gender registration?

1. Sometimes there is gender registration ánd sex registration. This is the case in the UK system and its derivatives like the Canadian system. There it can happen that passport states female, while the birth certificate still states someone is male. In case of coerced use of sexed facilities like the penitentiary system, the female reassigned person will end up in a male facility because the sex has not yet been changed. This is the case f.e. when a GRC (Gender Recognitrion Certificate) has been issued but one has not completed the medical trajectory. Through this discordance of registers and levelled registration, suddenly a person’s original sex assignment is revealed.

2. The change of registration is only available to intersex persons. This is the case in Germany where a newborn with ambiguous genitalia cannot get a gender marker in their birth certificate until had become clear what gender the child belongs to. Though interpretations differ (some see a possibility to migrate from M/F to nothing) the idea is to prevent a change in record by waiting until clarity is provided.

3. “Other”, for everyone. In India this is the case. In India since the 2014 NALSA Supreme Court case, it has been ordained trans* people should be able to get this ordination (?) upon self identification. The verdict has not yet been implemented since it also stated 3% of government jobs should be reserved for trans* people and government keeps postponing, out of lack of political will. Changing the gender, not only to “other”, is open to anyone. Also registering as other is not required. Legally this makes gender registration pretty irrelevant. Everything is open to everyone. How this works out in daily life remains still to be seen, since implementation is a complicated case anyway. The law in Nepal does only apply to “third gender persons”, which is not clearly defined.

Also in new Zealand one can change from anything to anything and that can be done at will. Practically it is advised not to change often because of repercussions of non-matching appearance and gender indication causing trouble.

4. Unknown or unspecified, unspecific or indeterminate. This is the case in Australia, where Alex MacFarlane in 2003 won the first case to have an X in their passport. Better known and more recent is Norrie May-Welby who was the first trans person to win a case against the registry of births and deaths to be registered as neither male nor female. The specificity of the case is that Norrie previously had gotten a gender confirming treatment towards feminisation but also disposed of statements they did not fit the male or female category. To get there a statement by a medical professional is needed.

As an intermezzo we must take in to account the different legal traditions. This is of importance how the law can be changed. Of the countries that recognise a non-male/non-female solution only Germany and Denmark have a civil law system and all the other are based in common law (where courts can also contribute to the extent of the law). In Germany and Denmark it is far more a legislative process and the courts don’t play an important role in changing the laws. In the UK and the Commonwealth the court can be used far more actively to obtain change.

Which way do the Netherlands go?

The report “M/F and beyond” indicates there are quite some hurdles on the road to removal or making legislation gender neutral. Of course it could be decided to first take the biggest issues head on and then do the rest whenever that part of legislation requires an update anyway. Something like “where the law states ‘he’ or ‘she’, also ‘they’” is implied. That would be the practical take.

Social climate now tends more to open a third option for who doesn’t identify as one of the currently legal sexes, than complete abolition. Or leaving out of the passports. Though a general leaving out option will not be the choice probably: international tendency is not to destroy the system, just opening it up.

That would be a rather unwise decision. Acting that way creates a huge risk of setting apart people who are or are perceived as trans*. Only when a category of unspecified is open for everyone, it would be acceptable. That is why the German solution is so faulty. Also only indeterminate is acceptable. Not a countable extra, that would make it even worse than a restricted available third. This would open the gates for many official gender identities and freezes them, which beats the purpose.

A growing number of liberal politicians makes the case for quitting “unnecessary” registration, like on website forms. It remains to be seen how wide the definition of “unnecessary” will be. I can only hope as wide as possible.

Superfluous and stupid

There are two extra arguments I would like to present here.

First the futility of a multiple option gender registration for gender equality (let alone equity). Why register when it makes no difference. We are talking about an item in basic administration, civil registry. Registries started with men only in the beginning, only when women got (property) rights, it made sense to have them separately registered (instead of subsumed under their husbands). Still there is a pay gap between men and women and not all countries know equality between men and women. Inserting a new category will not safeguard the rights of the newcomer. Maybe even create and extra distance for the newcomer. If equality (or even better equity) is the goal, why register them separately.

Further a third gender option is politically stupid. From a political point of view, or a more philosophical and militant starting point, the aim should not be recognition in registration, although human rights law makes it possible to do so. The aim should be, as reflected in treaties and covenants, to eliminate inequality between the genders. Originally protection against equality between men and women, after recognising more genders, these should protected also of course, since equality is the aim. As argued above, the more you differentiate, the higher the risk of inequality as result. If equality/equity is really the aim, the best way to reach that is quitting registering gender altogether. There are definitely obstacles, but those are largely of a practical character and can be resolved. Partially beforehand, partially on the go.

In social discourse completely different worries are voiced, like: this will lead to the elimination of men and women as categories. Sometimes this a sincere fear, but often it is conservative fearmongering. I think the effect is more of a drastic decentralising of traditional gender identities and expressions. There is nothing wrong with that. It can easily be argued we have the UN Women Treaty CEDAW and the Yogyakarta Principles on our side.

Another argument that often is heard is of medical or biological nature: either there are essential differences. This is understandable but not as correct as put. Because the differences are between bodies, not necessarily between genders. And since it is about bodies, it makes more sense to register essential body parts present with a family doctor than the gender identity of the person inhabiting the body at a civil registry. And for social research self identification usually is of higher importance than the registration.

It seems the tide is favourable for more gender equality in the West. We should definitely go on, but at the same time fight those who block changes elsewhere, since mostly the money for that comes precisely from the West.

*India, Nepal, New Zealand, Australia, Germany, Denmark; Malta is on its way and more will follow for sure.