Entanglements

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.