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.
The results of the whole parliamentary process as it stands are:
- No medical intervention checking for the measure of transness required any more
- Hand over a letter by an expert (gender team approved psychologist!) stating your informed consent to the civil registry
- Medical procedure itself has not changed: diagnosis, hormonal treatment and (genital and chest) surgery still available and (partially) funded.
Monday evening there was a still terse debate on some of the elements of proposal #33.351. All parties interested stated again their preferential points. In the end the law got passed with two thirds majority vote. The issue was considered too important for partisan hobbies. This post gives a rundown of the arguments and sketches the next steps.
No male mothers!
The Christian Democrats have deep running problems with the legal intervention in natural order. From 1 July a trans woman can “father” a child and a trans man can bear a child, and both stay in their legal gender. Their change of gender marker should however be withdrawn by administrative procedure as soon as they beget or bear a child. They didn’t use the words, but it sounded that they consider pregnant men and inseminating women an abomination. CDA pleaded for an “objectifiable check” meaning the family court by that. Also, with the canceling of court control, the Christian Democrats wanted the Real Life Test of one or two years reintroduced in the law. And minors should only be allowed to change their gender marker if their parents would be involved in the process also. This to prevent trouble at home. These issues must be arranged by law according to the CDA senator. That proposal would leave us with the old 1985 law plus the amendments because of modern developments as marriage equality (availbale since 2001) and gay adoption.
Through the courts
The Socialists also guarantee for remarkable contributions to the debate where it concerns family law. They already did so with the law on lesbian co-parenting. The senator intervening in these debates is a former family judge who is very concerned for the consistency of the legal system where it concerns fundamental legal issues. Where a change of act is required, normally the family court is involved. Such is Dutch legal system. In this case that would add another 1500 to 2000 euros to the already taxing process of gender change. SP would ask then for a change of law that the state would take care of the legal costs involved. As long as the legal system states intact. Somehow previous reports stated that the choice for the court was undisputed.
Our conclusion is that these institutions never listened closely on this point: with one third of the trans population living below the poverty line and many unemployed or underemployed, fees up to 2000 euros are quite an attack on the household budget. And the fact that a judge is needed to confirm our gender identity – for the legal recognition is confirmation by the state – that actually shouldn’t have anything to do with our bodies and our gender identities – is a chutzpah. The right way is to have the registration amended by the civil registry clerk. Anything more is ridiculous.
Senator Quik-Schuijt of SP is against the age limit in the law. Any limit would be arbitrary, but parental participation in the process again is desirable. And a judge.
Although I strongly disagree with the suggestions by above mentioned parties, I do understand their sorrow that the legal system might become incoherent. I just would have to tell them this is already the case and this incoherence is growing because the system is outdated, is unaware of several developments happening in society. By trying to preserve the hetero normative character of the law more and more trouble will come. The idea of a state commission to review the family and personal law in vigor is a good one, if that would lead to a modernised and gender neutrally formulated legal system. However retrofitting laws so the system for now stays intact is not the way to go. Since 2001 with the first homosexual marriages the law is already cringing. They’d better see the current development as another step towards modernising the system. That senator Quik is not willing, shows her legal conservatism. The senators still want to influence our lives more than reasonable. Like the SP spokesperson wants to legislate for emotional trouble that may come from changing your gender back.
Many parties (Social Democrats, Christian Democrats, Socialists, Conservative Christians, Freedom Party) were very much against an age limit of 16 years or even younger because they doubt very much that at age 16 one can already be really sure and responsible. Which is why voting is at 18, driving a car, within short drinking alcohol … Telling and showing that adolescent trans people are very sure and capable of deciding for themselves did not really convince them. Nor did the fact that the legal competence for invasive medical treatment is at 16 so they can start their invasive medical procedures (willingly) already at that age. Apparently the senators’ children are not apparent trans people. Like in the US and probably elsewhere almost every in LGBT rights involved strong opinionated politician has a child who is an out gay or lesbian, we definitely need more trans children with politicians here. Any volunteers?
The Liberals of D’66 refer to the solidity of the wish to change. But that is not informed consent. Informed Consent is checking the actual mental capacity of the applicant for what they request. The solidity is at most a part of that process, implicitly, a conclusion one may draw from the talk. Also explicit checking for this runs the risk of again a substantive judgment which again was not the intention of the law.
Also for in principle very willing parties like the Social Democrats this age limit, any age limit in the law actually remains a vexing problem. The PvdA would love to see no age limit in the law, but on the other hand needs assurance of the interests of minors. Not all minors are so self assured and self secure they know or can voice their different gender identity. But these will not ask for it or will be confronted by questions in the consenting process. It here would be no such process, they would not have the opportunity to be questioned about their identity. They would ask a change of gender marker, or they would not. A law maker might become nervous about non controlled changes (an anomaly in Dutch law). For trans people it would indicate a diminished importance of such a thing. Everyone with a Dutch identity document as an ID card or passport has a social security (civil service number) This is effective in tracking down a person, also for gender changes or name changes (marriage!). Which is immediately an answer to the Conservative argument “But what about malevolent use of the law?”
So we have an inappropriate age limit, we have naturalist wishes for the legal system and for humans, fear for criminal use, what’s next? The rest of the debate gave no real new argumentation. Of conservative Christians and freedom party we know are against this law and for different reasons human rights are not so interesting to them. The Conservatives (VVD) emphasize the trouble with minors again and are worried about potential criminal intent. With that we are through all relevant arguments.
What most senators do not know or do not realise is that the 1985 result, the law we still have, was planned to be more modern but thanks to Christian Democrat hegemony medical requirements were kept. In the interest of the protection of public order it was deemed necessary to have an infertility requirement. Also in those days male mothers and female fathers needed to be prevented to counter legal anomalies. These came forward anyway since many trans people used to live a heterosexual life before (and maybe after) gender change and had children. They were de facto male mothers and female fathers. Now however there are legal provisions for this form of parenthood. In the end with the vote of the Christian Democrats.
Positive interventions came from the Social Democrats, the Greens and the liberals. The Greens started to immediately refer to the Yogyakarta Principles (article 3, the right to recognition before the law, that refutes the legitimacy of requiring medical intervention for legal recognition). With the law on lesbian co-parenting (no adoption needed anymore by the second mother, just recognition before the civil registry clerk) legal inhibitions to male mothers and female fathers now are gone. Questions were asked about the social situation of trans people and what government is doing about the deprivation of trans people. The liberal spokesperson quoted from several life stories of trans people to indicate the trouble they run into. A welcome change from the purely legal context.
The biggest problems we face with this law do not lie directly in the text, but more in the thoughts behind this law. When looking at the text, the final requirements, we could be rather happy, With the evaluation in three years we may get the expert out or at least a lesser role for them and then shortly after we can do away with them anyway. Yay for trans autonomy then. Except.
Except that the philosophy behind the law is just plain Wrong. In the debate, in the drafting process and in the answers by government it becomes very clear that trans* people are not considered to be people who can decide for themselves about their gendered walk in life. The role of the expert to confirm our informed consent is considerably larger than the role of a civil servant who has to check if the requirements for marriage have been fulfilled. The Yogyakarta principles state clearly no discrimination on the ground of gender identity is allowed, as now do several European treaties.
The way forward
The best, the only way forward, is to continue the process towards demedicalisation and equal rights. In the situation we want to reach trans people will be treated well, just like non-trans people. No extra support because of deprivation but realised equal rights. The road to go is then to on the one hand continue emancipation by getting more trans people employed and have better access to health care without discrimination or medicalisation for being different.
For that we also need to change the new law, in such a way that we do away with the appointed expert that checks how informed our consent is to a legal change. That still does not make us equal. People about to get married are not questioned about their motives and how they imagine the “until death do us part”. Of course, divorce is possible, but that is not why you enter in a marriage. So why not question prospect husbands and wives (not necessarily of each other) how they envision their new life, how sure they are they will stay married. Alternatively abolish the questioning of the trans person.
Consent is still an important issue, but then in health care. You need to understand what certain treatments offer in chances and in risks. If the doctor to deliver the treatment beliefs you understand you can sign an agreement that you are very aware of all risks and chances, as a well informed patient.
It will be another intense struggle, this time directly with the gender clinic in Amsterdam that is designated as and posits itself as core scientific centre on trans medical affairs. Also of course with the Health ministry that gives the clinic the room in which they operate. We cannot indicate how long this fight will be. But it will be terse the coming years. But of the coming ICD-11 is favourable for us, we might win this fight sooner than later.