Dutch gender recognition bill: better but not good

Finally Dutch government is showing to take gender recognition legislation serious by publishing the Legal Gender Recognition Bill as soon as possible after ministerial treatment in the Council of Ministers. And also by acknowledging most of the changes trans organisations advised. However Dutch government is up to now absolutely not willing to fully depathologise and set an example and take their preferred role of human rights example back.

Trans organisations and human rights organisations have by HRW report “Controlling bodies, denying identities” and by their advise during the consultation period for the coming gender recognition act (art. 28, book 1, Civil Code) indicated the importance of not only granting the practical points, but also granting autonomy over lives and bodies. In conceding this, Dutch government would set an European precedent as they have with granting marriage to people of any combination of (two) registered genders.

It looks government is not willing to function as vanguard in this issue. Since the Argentinean senate adopted the gender recognition bill and president Fernández signed it into law, the Netherlands would be the first country in Europe – not any more in the world – to fully depathologise trans identities by stating the requirement for gender recognition for gender variant people would be to be clear about the implications of their wish by a process of informed consent.

This expert would not – as now – be an expert in things transgender, but someone who understands peoples’ minds, who can affirm that the applicant does understand what they are engaging in. Such a professional could be psychologist, a social worker, or anyone who by their education or professional experience can discern these things.

Current political and societal climate are not so positive yet, that we may get this without more advocacy being done. Up to now the state’s idea remains with this ‘expert’. This will partly have to do with normality being invested so deep in society, and also in politicians, lawyers and medical professionals, that it is very difficult to think that gender might actually be trivial.

In my opinion we can for legal change even do totally without this. A waiting period of some months would be enough to keep most pretenders from really changing. And if not: what is the importance of gender registration? Since we do not need it anymore, why take it so serious?! Really.

Part of the problem lies in negative advise of the State Council, another one in current composition of parliament. While Dutch lower house might accept the bill without much ado (some Christians protesting over the core change of leaving out medical treatment, some others over potentially no control of the applicant’s seriousness), Senate would probably prove  a tougher battle since Christians there are more powerful and Senate doesn’t run as fast as Congress does. They are more prone to anticipate complications.

it is to be hoped the law passes without much watering down because then we can go ahead and focus on the bad health situation for trans people. Also pressure will be lifted fotr trans people to immediately seek medial assistance: the fact of your saying so (maybe to be confirmed by someone who ought to be knowledgeable on it) gives administrative recognition and relief. Not that cultural attitude wil have changed immediately with the law, that takes quite some extra effort.

Practically  the LGR bill says:

  • Be 16 or older
  • Be of Dutch nationality or be a resident
  • Have an letter stating you are gender dysphoric (serves as proof of durable conviction
  • Go to civil registry for name and gender change

No physical medical intervention needed anymore, thus no required permanent infertility. No judge to double check your conviction. So far so good.

Gender dysphoria
However by needing a letter declaring our gender dysphoria we still have doctors impounding their vision on us. Gender dysphoria is an official psychiatric diagnosis (to be). Needing this for a change of legal gender excludes trans* and gender variant people who do not feel gender dysphoric (maybe gender strange, but not dysphoric) and pathologises our identities.

A related problem lies in the fact that the clerk at the civil registry can refuse the requested change when the applicant doesn’t look like their idea of a man or a woman and they (therefore) do not trust the expert letter. A step towards new refusing clerks? As with the same sex weddings? And what about the experts? Do they understand gender queer to name an example? Would they understand neutrois? Why would an expert be able to confirm our gender identities and expressions? This constructs and maintains a very unequal process: the expert’s gender is always better, more real than the applicant’s. How else could the expert be qualified to judge? And how can an expert affirm the reality of a conviction they do not recognize?

Less than halfway
Concluding: actually we are not even halfway with this proposal. Until we can tell ourselves at the clerk’s desk how we want our gender to be registered for whatever reason (why the heck can’t it be frivolous? what’s wrong with frivolous gender changes?!) the law does not do us justice. As an interim law destined to live (say) a year an then be replaced by a Real Good Law,.. OK  I can live with that, but given the trouble done to explain this bill and given the legislative process that is highly unlikely. So: let’s improve this bill by loud and clear action.


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1 Comment

  1. Schlumpf v Switzerland, L v Lithuanis, Van Kuck v Germany, Goodwin v UK – all these cases in the ECHR shsow that the Dutch Government is failing to follow the law and they must be taken to court over it.

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