Discrimination against transgender persons must no longer be tolerated”
That’s not a quote from a trans blog, nor from a trans rights organisation like Press for Change, but a quote by Thomas Hammerberg the Council of Europe Commissioner for Human Rights and published earlier this week on the Council of Europe website. The full text reads as follows (also available at the Commissioner’s website at www.commissioner.coe.int):
During missions to member states of the Council of Europe, I have been reminded of the on-going discrimination many face on account of their gender identity. Transgenderpersons encounter severe problems in their daily lives as their identity is met with insensitivity, prejudice or outright rejection.
There have been some extremely brutal hate crimes against transgender persons. One case which received media attention was the murder in Portugal of a homeless, HIV-positive, Brazilian transgender woman, called Gisberta Salce Junior. She was tortured and raped by a group of young men, thrown into a well and left to die.My discussions with non-governmental organisations defending the rights of transgender persons indicate that a number of such hate crimes go unreported – even in serious cases. One of the reasons appears to be a lack of trust in the police.
Some people seem to have a problem withthe mere existence of human beings whose outer expression of their inner gender identity is not the same as their gender determined at birth. Aggression against transgender persons cannot however be excused as resulting from ignorance or lack of education. These attitudes cause serious harm to innocent and vulnerable people and must therefore be countered.
I have been struck by the lack of knowledge about the human rights issues at stake for transgender persons, even among political decision-makers. This is probably the reason why more has not been done to address transphobia and discrimination based on gender identity. The result is that individuals are discriminated against all over Europe, in areas such as as employment, health care and housing.
In a number of countries, the problem starts at the level of official recognition. Transgenderpersons who no longer identify withtheir birthgender, seek changes to their birth certificates, passports and other documents, but often encounter difficulties. This in turn leads to a number of very concrete problems in daily life when showing one’s ID papers – in the bank or the post office, when using a credit card, or crossing borders.
One well-publicised case related to Dr. Lydia Foyin Ireland who sought to have her legal gender changed from male to female on her birth certificate. After ten years of struggle, in 2007 the Irish High Court finally ruled that the State was in breach of Article 8 of the European Convention on Human Rights.
The European Court of Human Rights has ruled that States are required to recognise legally the gender change of post-operative transsexuals2. In one case, Christine Goodwin, a post-operative male to female transgender person, complained about sexual harassment in the workplace, discrimination in relation to contributions to the National Insurance system, and the fact that she was prevented from marrying a man (because she was still legally male).
The Court stated that “the very essence of the Convention was respect for human dignity and human freedom. Under Article 8 of the Convention in particular…protection was given to the personal sphere of each individual, including the right to establish details of their identity as human beings.”3
In some European countries, it has now become possible to correct officalrecords and obtain a new first name. However, in other countries a change of birth certificate is simply not allowed. In a large number of Council of Europe Member States, such changes are permitted only upon proof that the transgender person has been sterilised or declared infertile, or has undergone other medical procedures, such as gender reassignment surgery or hormone treatment. The individual’s sincere affirmation of their gender identity is not seen as sufficient, and the suitability of the medical procedures for the person in question is not considered.
Additionally, many countries require that a married person divorces before his or her new gender can be recognised, even though the couple itself does not want to divorce. This in turn may have an impact on children of the marriage. In fact, in several countries the parent who has undergone the gender change will lose custody rights. Legislation requiring divorce needs to be reformed in the spirit of the best interests of the child.
To require surgery as a prerequisite to enjoy legal recognition of one’s gender identity ignores the fact that such operations are not always desired, medically possible, available, and affordable (without public or other funding). It is estimated that only 10% of transgender persons in Europe actually undergo gender reassignment surgery.
Even access to ordinary health care is a problem for transgenderpeople. The lack of trained staff familiar with the specific health care needs of transgender persons – or simply prejudice towards transgender people – render them vulnerable to unpredictable and sometimes hostile reactions.
In the United Kingdom, male to female transgender persons have been struggling to get their gender status accepted for the purpose of pension benefits. In spite of overwhelming legal arguments they have so far been denied the pension rights that other women in the country (who were born female) enjoy without question.
There are other obstacles encountered in day-to-day life. A major problem for transgender persons is harassment and discrimination at work. Some leave their jobs to avoid it, while others avoid gender reassignment surgery for fear of stigmatisation.
Data presented by EU’s Fundamental Rights Agency shows that in some countries the unemployment rate of transgender persons can reach up to 50%. Some jobless transgender persons are unable to find employment, and see no other option but to work in the sex industry. A report from Human Rights Watch on Turkey called attention to the situation of transgender sex workers in that country – victimised by violence, drug addiction, sexual abuse, lack of health insurance, homelessness, police attacks, and a high risk of HIV/AIDS.
To date, very little factual information is available on the situation of transgender people in Council of Europe Member States. This information is needed urgently to determine the extent of the problems faced.
There is no excuse for not immediately granting this community their full and unconditional human rights. Council of Europe Member States should take all necessary concrete action to ensure that transphobia is stopped and that transgender persons are no longer discriminated against in any field.
Thomas Hammarberg
This is an unequivocal statement, at the most senior of levels, that transgendered people face widespread discrimination across Europe. Practically all of the points raised apply in the UK, including the general points the Commissioner makes about employment and joblessness. The UK is also singled out in terms of pensions rights and marriage. The Gender Recognition Act 2004 (GRA) is one of the most flawed pieces of legislation in recent times and, unless materially amended by the forthcoming Single Equality Bill it is inevitable that the GRA will be challenged in court. Take marriage for example. As the Commissioner explains, those who are married are unable to change their birth certificates unless they dissolve any existing marriage first. Not only does this impact on children as explained in the Commissioner’s viewpoint, it can also prevent the individuals from accessing their pension entitlements. The GRA also requires that an individual lives in their new role for 2 years before they may apply for a Gender Recognition Certificate (the mechanism by which a revised birth certificate may be obtained), although in practice the delay is somewhat longer as various medical reports are required which can only be produced after the expiry of that two year period and then the applicant may need to wait a further 14 weeks before the Gender Recognition Panel meets to consider their application for a Gender Recognition Certificate (GRC). Some individuals can have surgery up to 2 years before they can obtain a GRC and are effectively barred from marrying in their correct gender for this time. Unless the GRA is changed it is inevitable that this will be challenged alongside the need to dissolve any existing marriage. Both of these issues seem to be clear breaches of Article 8 of the European Convention on Human Rights (ECHR), the right to respect for private life and family. This is a qualified right, and the State is entitled not to apply the right absolutely. Whether the State would be able to justify the above GRA restrictions is questionable. As it is possible for individuals living overseas to obtain a GRCwithout waiting for two years, it is hard to see what justification the UK Government could advance in defence of this restriction. The European Court of Human Rights has also found in the case of Christine Goodwin, that Article 12, the right to marry applies to transsexual people. Again this is a qualified right but the State may not apply a qualification which takes away the right. Again, it is hard to see how imposing a two year plus wait is consistent with either Article 12 or with the 2008 United Nations declaration on sexual orientation and gender identity (see below).
That an individual has undergone gender reassignment should be a matter of utmost privacy and certainly falls within Article 8 of ECHR. This right of privacy is generally established in GRA clause 22; however this right is completely shattered by the Gender Recognition (Disclosure of Information) (England, Wales and Northern Ireland) Order 2005 which essentially allows any individual to out a transsexual person who seeks to marry in church even if s/he posses a GRC. These then feed into a new clause 5(B) which the GRA inserted into the Marriage Act 1949:
(1)A clergyman is not obliged to solemnise the marriage of a person if the clergyman reasonably believes that the person’s gender has become the acquired gender under the Gender Recognition Act 2004.
(2)A clerk in Holy Orders of the Church in Wales is not obliged to permit the marriage of a person to be solemnised in the church or chapel of which the clerk is the minister if the clerk reasonably believes that the person’s gender has become the acquired gender under that Act.
Not only has the transgender individual’sright to privacy not been upheld, their right to marry in accordance with their religous convictions is also threatened, especially in Wales. It remains unclear whether this infringes a transgendered persons rights under Article 9 of ECHR.
As I reported in the previous article, gender identity disorder (GID) is classified internationally as a mental disorder. Although it is possible for a transgendered person to transition to live in their correct gender, obtain hormones and even surgery without a formal diagnosis of GID (which may not be an applicable diagnosis for the individual), the GRA requires that a diagnosis of GID is obtained before a GRC is granted. What other women are forced into getting a diagnosis of a mental disorder if they wish to marry. The situation is a gross breach of human rights.
It is worth noting that the UK has signed the 2008 United Nations declaration on sexual orientation and gender identity, as have all member states of the European Union (but not the USA). The declaration was read out to the UN General Assembly on December 18, 2008 and reads:
- We reaffirm the principle of universality of human rights, as enshrined in the Universal Declaration of Human Rights whose 60th anniversary is celebrated this year, Article 1 of which proclaims that “all human beings are born free and equal in dignity and rights;
- We reaffirm that everyone is entitled to the enjoyment of human rights without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, as set out in Article 2 of the Universal Declaration of Human Rights and Article 2 of the International Covenants on Civil and Political, Economic, Social and Cultural Rights, as well as in article 26 of the International Covenant on Civil and Political Rights;
- We reaffirm the principle of non-discrimination which requires that human rights apply equally to every human being regardless of sexual orientation or gender identity;
- We are deeply concerned by violations of human rights and fundamental freedoms based on sexual orientation or gender identity;
- We are also disturbed that violence, harassment, discrimination, exclusion, stigmatisation and prejudice are directed against persons in all countries in the world because of sexual orientation or gender identity, and that these practices undermine the integrity and dignity of those subjected to these abuses;
- We condemn the human rights violations based on sexual orientation or gender identity wherever they occur, in particular the use of the death penalty on this ground, extrajudicial, summary or arbitrary executions, the practice of torture and other cruel, inhuman and degrading treatment or punishment, arbitrary arrest or detention and deprivation of economic, social and cultural rights, including the right to health;
- We recall the statement in 2006 before the Human Rights Council by fifty four countries requesting the President of the Council to provide an opportunity, at an appropriate future session of the Council, for discussing these violations;
- We commend the attention paid to these issues by special procedures of the Human Rights Council and treaty bodies and encourage them to continue to integrate consideration of human rights violations based on sexual orientation or gender identity within their relevant mandates;
- We welcome the adoption of Resolution AG/RES. 2435 on “Human Rights, Sexual Orientation, and Gender Identity” by the General Assembly of the Organization of American States during its 38th session in 3 June 2008;
- We call upon all States and relevant international human rights mechanisms to commit to promote and protect human rights of all persons, regardless of sexual orientation and gender identity;
- We urge States to take all the necessary measures, in particular legislative or administrative, to ensure that sexual orientation or gender identity may under no circumstances be the basis for criminal penalties, in particular executions, arrests or detention.
- We urge States to ensure that human rights violations based on sexual orientation or gender identity are investigated and perpetrators held accountable and brought to justice;
- We urge States to ensure adequate protection of human rights defenders, and remove obstacles which prevent them from carrying out their work on issues of human rights and sexual orientation and gender identity.
It is time for the British Government to respond to the criticisms of the Council of Europe Commissioner for Human Rights, urgently amend the GRA to remove these areas of discrimination in accordance with Article 14 of ECHR and the 2008 UN Declaration, and to ensure that existing provisions relating to equal opportunities in areas such as employment are applied in practice and are not merely paper law.
Note: the Department for Constitutional Affairs has published a guide to ECHR which may be found at http://www.justice.gov.uk/docs/act-studyguide.pdf
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