Pathologising self-determination of gender identity laws fosters intersectional discrimination against trans and gender diverse individuals and perpetuates existing discrimination by denying the protection of relevant fundamental rights. While some EU States have shifted to a depathologised approach for self-determination of gender-identity, the European Court of Human Rights has not explicitly recognised it. Aniketh Rao explores this gap in the EU legal context.
Self-determination of gender identity in human rights should be construed as universal and inalienable, not as a pathologising social construction. Pathologisation occurs when trans and gender diverse people are characterised as clinically disordered, requiring medical interventions for legal recognition of their self-determined gender identity. This legal construction oppresses the intersectional realities of people and, in that sense, fosters legal discrimination against them. In this piece, I submit that, within EU legal context, depathologising self-determination of gender identity is a step towards less discrimination in law for individuals with intersectional identities.
The trans and gender diverse are intersectional gender identities. In order to self-determine their own gender identity, gender diverse and trans individuals are largely victims of pathologic and diagnostic practices like unwanted surgeries, sterilisation and coercive psychiatric assessments. Despite states’ duty to protect under international human rights law, the translation of this duty into the right to self-determination of gender identity is incomplete, often requiring medical prerequisites. Gendered legal frameworks that enforce these restrictions harbour a discriminatory force against trans and gender diverse peoples’ right to equal protection before the law, and freedom from discrimination. Thus, the virtual silence on right to self-determination of gender identity and the lack of an intersectional perspective in international human rights laws fuels a discriminatory treatment to these individuals.
The intersectional stance in regional human rights mechanisms, particularly in the EU, is showing relative progress. The self-determination of gender identity embodies an anti-discriminatory standpoint when depathologised, specifically, when it is legally recognised without medical interference. Such anti-discriminatory legal framework for self-determined gender evinces the mainstreaming of intersectionality in law.
Recently, the European Parliament adopted a resolution that placed significant emphasis on intersectional discrimination, specifically concerning trans people. For instance, recommendations in the resolution urged EU States to ensure that legal gender recognition procedures respect self-determination and conform to the World Health Organisation’s International Classification of Diseases (ICD-11), which advocated for the eradication of sterilisation requirements. This demonstrates that EU institutions are increasingly recognising the importance of intersectionality concerning gender identity.
Furthermore, while the jurisprudence of the European Court of Human Rights (ECtHR) does not guarantee a right to self-determination of gender identify for trans and gender diverse individuals, decisions of the Court are legally insightful. They advance a view of gender identity as part of the private realm and invalidate pathological requirements as conditions for legal recognition.
Beginning with Goodwin v. UK, the ECtHR declared for the first time that trans people’s right to gender recognition is a duty of the state. It also granted states a wide margin of appreciation when setting requirements for the legal recognition of gender identity. These conditions mainly included sterilisation, genital surgery, and medical necessities, which the states can assess more flexibly. Similarly, in Van Kück v. Germany, gender identification was established within the private sphere. Thus, states have the duty to protect this intimate sense of private life as mandated by Article 8 of the European Convention on Human Rights (ECHR).
Sterilisation was, however, abolished in YY v. Turkey (2015). The court decided that sterilisation violated Article 8 of ECHR, which, in fact, was established as an essential element of self-determined gender identity. Similarly, in A.P., Garçon and Nicot v. France (2017), the Court found compulsory sterilisation for self-determination of gender identity contradictory to physical integrity under Article 8. Recently, in X. and Y. v. Romania (2021), the ECtHR found gender reassignment surgery to be another violation of private life (Article 8). As mentioned, these ECtHR cases, therefore, not only qualify the right to private life as an essential constituent of the right to self-determined gender identity, but also invalidate pathologic conditions for this self-determination. In fact, these ECtHR judgements have prompted the implementation of an absolute depathologised self-determination model of gender identity in Denmark, Malta, Norway, Ireland, and Belgium.
The ECtHR has, however, cautiously rendered judgements on gender identification within the male-female dichotomy for trans people and not for the gender non-conforming. Examples includes P.V v. Spain and Identoba and others v. Georgia, where transsexuality and gender identity were respectively established within the personal characteristics covered in Article 14 (right to non-discrimination). Nonetheless, in Belgium, the depathologised self-determination of gender identity extends to the non-binary, which can be established solely by declaration. In light of this, medical requirements for self-determined gender identity can be asserted to be not only a violation of the right to private life and non-discrimination, but also a breach of the right to health. Pathologised self-determination of gender identity is contrary to the highest attainable standard of health and is, therefore, inevitably coercive, invasive, and discriminatory in relation to the right to health.
An emancipatory ending to intersectional discrimination, synonymous with the Belgian approach, would take the rights to private life, non-discrimination and health as potentially constituting the legal base to argue against pathologising. These are important rights to consider on the path to a depathologised access to self-determination of gender identity for trans and gender non-binary people. Hence, a latent intersectional and anti-discriminatory progress, contained in the jurisprudence of ECtHR, would be developed by the explicit recognition of these rights regarding the self-determination of gender identity.
Image credit: Tingey Injury Law Firm / Unsplash
