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. Continue reading
April 2015 is for trans* and intersex human rights in Europe a rather fortunate month. On the legal level that is. It still rains trans murders and suicides, not to speak of other atrocities. Which – cynically maybe – show precisely what we need that legislation for.
I want your attention for two cities in two countries for two different important advances. The first town is Valletta, on Malta. The other is Geneva in Switzerland. And then for two more where no less important stones fell in Oslo, Norway and Strasbourg, France. Continue reading
In the early morning of the 18th of December 2013 the Dutch Senate passed the proposal for updating the existing legislation of now 18 years old. It has been a long and bitter fight, in which some core demands have been realised, but it is not over yet.
For some time now the German decision to require parents of a child with ambiguous genitals to register their child without a sex marker and without protection or time limit, is making the news. To the growing displeasure of intersex activists.
Displeasure because intersex activists have not been consulted and if consulted would have advised against this law. Because of the utter confusion about a “third gender” or “third sex”. Because the way it works, parents and doctors will be inclined more to cut up the childs genitals instead of less. Without education or protection: who wants a sex ambiguous child?
To first tend to the misunderstanding about Germany that the press still furthers. Germany does not have third gender option. Not even or intersex infants. If a child is born in a German hospital (or at home) and on grounds of the genitals its se cannot be defined without a doubt, the requirement is to leave the sex marker (gender marker) open in the birth certificate. There is no time limit to it.
Where the power to decide on the childs sex lies in medical hands the tendency will be to try to prevent any ambiguity, out of professional pride (“Look! We can fix this!”). Be it through prenatal hormone therapy (with certain intersex conditions the mother gets off-label prescription of dexamethasone), surgical or postnatal hormone treatment prescription Or even abortion. Preimplantation Diagnostics and other screenings are unwelcome interventions where it concerns intersex “discovery”.
This will not help prospecting parents in handling the body diversity of their child. The most friendly it will be frowned upon and run into problems when for example registering it for Kindergarten. Given the ttal lack of support in society, the enforcing of a sex and gender binary everywhere in life, already the child’s start will be complicated. How will it be treated by family (“we don’t now what it is”), in Kindergarten where everything is pink and blue ..
The way it works, intersexed children (they fit within a diversity of bodies, but through medical scrutiny they intersexed, made intersex or having a “Disorder of Sex Development” to make it worse) only get the worst of possibilities, not the best.
Would anti-discrimination legislation help then: Well, yes. Though there is a risk of making thngs more complicated to keep the system. Instead of creating a limited extra category, German government could have had the courage to open it up for everyone to have no sex/gender marker in the birth certificate and other documents. At least let it die out. So that from end 2013 all children would be free of a sex/gender marker, and after some years that population will have grown and gender registration starts dying out with the deceased.
A word about terminology here: usually we speak of gender marker, but it happens at birth on the view of the genitals of a baby. The “no sex marker” solution the german chose and others are eyeing, shows that sex and gender are constantly conflated. Because of specific genitals, a specific gender identity and gender role is attributed too the child. naturalistic thinking with biologistic arguments then takes care of the rest: your gender is supposed to stay the same through life, apart from errors. in classic legislation the legal problem trans people present is solutioned along these “error” lines. Apparently the person develops differently than we expected, so we grant the right the correct this error. Another reason the Argentinean solution for gender recognition is so revolutionary.
The solution to havng a two option system and people that do not fit in can theoretically be solutioned by introducing a new category, or leave the field open. But that leaves two important questions: is it the best solution, and waht do the people involved say of it? There is a saying “Nihil nobis sin nobis”, nothing about us without us. Decent politics involves the group that has to benefit or suffers from a certain solution. This has not happened here. Elsewhere, in the Australasian region third gender solutions have been introduced through the explcit wish of part of the population. Not in Germany however.
What would be the best solution to the problem of having non fitting categories? One could opt for opening up a real third sex/gender category, indicated with an X on all official documentation (this is the internationally recognized solution from the ICAO). But for legsilation there must be a need and it must be proportionate in its effect. In Europe (Council and Union) there also is the equality principle. New categories , new distinctions may only be introduced in legislations where equalilty is protected. In Germany this is definitely not the case, neither in Australia where inter* people cannot marry a man or a woman since they are not one. The very least to do is introduce protection against discrimination. If not it is a solution on unequal footing and against the equality principle.
Next there is the risk of wanting to create even more categories. Why not one or inter* and one or trans*? Sensile lawyers will rejext this idea since it makes no sense to discriminate between so many not really essential traits. Which in turn brings us to the question: if continuing to create categories is senseless, do the existing categories make sense? Does sex registration in the civil registry make sense? Medically speaking, sex registration might make sense. But the civil registry is not for medical information. With equality legislation covering more and more terrain, inequality between men and women seen as a somewhat retarded way of thinking (although still very much alive), what is the use of registering? Just because bodies are different and they have different roles? That is hardly a good argument.
The best way then is to simply abolish sex/gender registration at the civil registry. Make those categories moot, uninteresting, without importance. It is not about abolishing men and women ro male and female identities, it is just about quitting to enforce them. Most reasons to keep the status quo come from the same realm as objections against marriage equality between genders or the possiblity to change genders, sc. moral conservatism.
Of course between act and dream stand laws and moral objections – to quote the Dutch poet Willem Elsschot – but that should not be insurmountable.
This post highlights some nasty details hiding in the shades of the current Dutch transgender bill, as imposed upon Dutch trans people by obscure deliberations between the Justice ministry and the gender teams. Where informed consent on the one hand is the only criterion for LGR, the gender teams through a back door still have their say who is credible and who is not, who will be recognised and who will be scrutinised.
In many countries medical interventions are required in order to be able to change your gender registration on birth certificate and/or passports. Think France, Spain, US, Scandinavia, Poland, Chile, Brazil Japan, Philippines … From a human rights perspective requiring medical intervention for legal change constitutes a violation of the right to be exempt form medical maltreatment. And recently the UN Special Rapporteur in Torture classified obligatory medical interventions as such. He explicitly mentioned infant genital mutilation and forcible trans genital surgery to equal torture. And then there are countries that do not require it to be so, but do expect it. Even if they say to rely on the informed consent of the applicant. As it stands, the new Dutch law presupposes the wish to medical intervention. Also there are some countries that do not require any medical intervention. Examples are Argentina of course, the UK, Hungary, Portugal …
With the recently adapted legislation for legal gender recognition the Netherlands now opts for a strange hybrid that has some devils hiding in the details. The formal construction to be is that anyone (with a legal registration in the Netherlands) of sixteen years or older can request a confirmation letter of their long term and/or deeply seated feeling of not belonging to the sex/gender they are registered under. The only requirement is they have to understand what they are engaging upon. But as stated: the devil hides in the details. For the professionals allowed to issue such a letter of understanding, are the doctors and psychologists of the gender teams. Which is surprising. If the applicant is not by definition suffering from a mental disorder, then why have them screened by a psychologist? If going down that way, one might expect obstructive co-morbidities. These are given in the explanation of the law: the legislator fears for applications by people suffering from psychoses or other delusions. Not that there have been many reports of misuse. Most psychoses or delusions of people that apply for trans health care interventions, concern trans people with mental coping problems, trans people with co-morbidities. Not madmen playing trans. Nor villains wanting to abuse the system. And anyway, if this might be the case sometimes, the statistics are really low and the harm done is only to themselves. So the legislator is confused, fearful or influenced by the medical establishment.
The second and related problem lies in how the gender teams will react. How they will perform their task. Here word on the street is not really positive either. What is to be expected is a conflation of tasks. On the one hand psychologists still have to inform prospective patients on the medical gender reassignment protocols and procedures. On the other hand they get a new task, to screen if the applicant understands what this change of legal gender entails. When the setting is mostly assisting people with coping with their cross gender feelings, filtering out who is eligible for gender reaffirming treatment, then this is not an illogical step. But the legal requirement is different. The psychologists however – from professional pride? – insist on not just checking the measure of informed consent, but already inform and check the client’s readiness for medical treatment. This does injustice also to the current population of people that come to the gender team. Not all those rejected are not transgender (enough). Also applicants for medical assistance that are not ready for medical treatment – in the current setting or not ready at all – are being turned away.
Up to now everyone passes through a psychological diagnosis of gender dysphoria. If you just want acknowledgement of your identity, partial treatment, the whole package or maybe counselling. No discrimination this way. That starts behind the first gate. It very much looks like the amount of people requesting a consult will grow, potentially a lot, and next there will be quick and a slow path/trajectory. The fast route is for who only wants legal gender recognition. They get in principle one talk and are free to go then. Until they want medical treatment. Group two wants immediately medical assistance. It is not clear now if they will get the offer to first change their gender marker. Or will be side lined with longer waiting times until there is more capacity. Or the other way round: if you only need a certificate, you can wait. This approach is plain wrong. Not from a medical/psychological point of view. Then it is logical to first do a thorough anamnesis. But these people do not come for a medical anamnesis, they want their gender marker changed in order to easier decide how to continue with life. In order to find out how to make sense of their gender difference. Now the processes of gender change have the chance to be more separated, it also could become more clear that there is a need for more counselling. The psychologists at the gender teams only check if you conform enough to the diagnostic criteria for (full) medical treatment. And then they only take your pulse during transition. Which leaves trans people in limbo again for the most important element of health care: support.
So, the applicant for legal gender change who does not want or need (any more) medical assistance inquires at the civil registry for the conditions to change their gender marker and then hears they have to go and see a psychologist or psychiatrist from the gender team. That means the state considers the requester to be mentally incapacitated for an autonomous decision regarding their gender.
Transgender Network Netherlands asked the secretary of Justice for clarification, since he is making a mess of it. I am very curious what he will come up with, but something tells me we still have to wait some years before we will get real informed consent.
As you may have seen on the social media already, or on trans mailing-lists: change in Dutch gender recognition legislation just took a big leap this afternoon of 9 April 2013.
Already five years ago Dutch trans people contacted the minister for Emancipation (and Education, Science and Culture) complaining about the ridiculous and human rights violating legislation that goes back to 1985. The minister then promised to get it changed fast.
Fast forward to 2011. Human Rights Watch presents a report on the situation of trans people in the Netherlands and precisely then a watered down proposal is presented. National and international trans organizations complain heavily, only being happy with the removal of the requirement for medical (physical) interventions. After discussions and comments in the first (written) lecture in parliament some improvements are made.
Last week the debate took place and today the change proposal has been voted to continue to the next round, the Senate. After that only a signature of the head of state is needed for the law to come in to force.
What does the law entail when accepted?
- Every person with a Dutch birth certificate or residence can amend it without medical intervention. If at least 16 years old.
- Provided with an expert letter confirming the applicant’s durable conviction being of the other gender. The expert is to be a doctor or psychologist of the gender teams. Others are to be cleared by the gender teams.
- Go to the civil registry and it will be adapted.
- Evaluation of the law after five years
Amendments have been brought to the floor to change some important aspects:
- LGBT organisations (incl. the trans organisation) want a wider group of experts to be authorized to write an expert opinion, like social workers, reverends, sexologists, gender experts, trans organisations … Alas: rejected
- It has been requested to bring the evaluation term of the law back to three years because of the rapid developments in the field. Alas: rejected
- Lower the age limit to 12 years. Alas. Also rejected
- Also it has been requested to investigate the possibility for a third gender marker or nothing at all. This motion has been accepted. Results are to be in within two years (to prevent the ongoing UK “investigations”). The precise order has not yet been commissioned.
All in all a good result, but it leaves still room for improvement on essential points. Life for trans people will be enormously improved, probably per Jan 1, 2014 as hope is the changes will then have effect.
As a note: this has no implications for the availability of trans specific health care. These issues are not legally coupled.
The proposal for change of the existing gender recognition legislation in the Netherlands is out. This proposal will be debated on the floor. It is – as the previous version – not good enough. Actually it hardly changed since last time we saw it.
The news came in the mail. An update of the website of the Justice and Security ministry. The proposal for change of gender recognition legislation is ready for second reading. Written comments have been worked through and answered. The secretary of state for Justice and Security apparently was not impressed by the questions and by the comments of the trans-movement. We are not impressed by him. Never were. Some refreshers:
- It took a Human Rights Watch report for government to come up (immediately!) with a proposal for change.
- This after some three years of talking and checking back with the legal advisor of government and of several ministers speaking of their worry for the current situation.
- Extensive comments for all national (TNN, COC, ..) and international (TGEU, HRW, GATE) stakeholders have been given.
- Then again the government needed reminding not to stall. Promise is debt.
- Comments again from national actors went to all political parties that took up several important questions but – of course not required – government took up maybe one point
- The trans movement is only taken seriously where it is advantageous for government
So what does the proposal of Dutch neoliberal cum ex-social ex-democrats comprise?
- An expert in gender dysphoria must check if you are sincere and that you have an enduring conviction. If you are not deluded or doing it out of delusion. If it is not done out of criminal intent
- Appointed gatekeepers consist of current doctors and psychologists gender teams, and others accorded by the ministry. They proposed a nice package deal.
- “Real Life Experience” or long time living in the role of preference has no influence on the legal part of the process. But gatekeepers may take that more serious than other expressions of trans-gender
- You must be at least 16 years of age
- After giving birth as a (legal) man you will still be the mother. Mater semper certa est. No wishes to make pedigree law gender neutral. Tendency is more re-biologising
- Good thing: no need for hormonal or surgical treatment
- Good thing 2: no court procedure necessary anymore
- The law will be evaluated after five years
So, two or three important good changes, and lots of lost opportunities in this proposal. Where good thing 3 may be that the expert opinion may not be a diagnosis. But how will this go if the applicant later goes on to medical procedures? Will it then be taken as a (psycho) medical diagnosis? So you must be gender dysphoric to get help?
Government gave in on the easy part: the world moves to outlaw coerced medical treatment (actually already for some time). Lately by UN Special Rappporteur Juan Méndez who now moves required and coerced medical interventions for trans people and infant genital mutilation as with intersex children explicitly into the Convention against Torture (absolute, never relative, always enforceable human rights law).
Yogyakarta Principle 18 is about this issue: medical maltreatment, unnecessary medical interventions. The Yogyakarta Principles on human rights regarding sex, gender and sexuality, that Dutch government says to wholly support.
Principle 3 however is about recognition before the law. Apart from making change easier than before, government still requires trans people to see an expert in effing gender dysphoria. who must check if we feel to belong to The Other Sex. We are never the experts on us. The trans movement has not been consulted on the issue of the expert, the medical experts have.
It is a long way to Tipperary. And an even longer one to gender justice.