Chapter eight: Recognising Gender Identity

En español

Transgender law covers a wide range of issues that arise when an individual’s internal experience of gender does not correspond with the sex assigned at birth. Transgender individuals typically face discrimination in education, employment, immigration, and child custody decisions. They suffer high rates of hate crimes and are especially vulnerable to physical and sexual abuse in prison. Cases involving transgender individuals are included in a number of other chapters in this book. The cases here focus on one particular aspect of transgender law: legal recognition of the preferred gender of a transgender individual.

Legal recognition cases most commonly arise when individuals seek to change their sex on identity documents, such as birth certificates, passports, and national identity cards. They may concern other documents, such as diplomas, driver’s licence, national health insurance card, or other certification or documentation related to identity or qualifications. Legal recognition cases also occur when individuals change their name to reflect a preferred gender. Since identification is required for most activities in daily life (enrolling in school, finding a job, opening a bank account, renting an apartment, or travelling across a border), the issue is one that is significant to the individuals concerned. An individual’s right to change the sex on his or her identity documents protects privacy and prevents discrimination and stigma on the basis of gender identity or gender re-assignment.

In some countries it is legally difficult to change gender. Individuals may be required to undergo genital reconstruction surgery, be infertile, and be single or divorced. In other countries, no such requirements are imposed, or no legislative framework exists. The issue of changing gender on identity documents is closely related to the right to marry, which is discussed in Chapter 9.

The rights to equality and privacy are at the centre of jurisprudence on gender identity and gender recognition. In P.V. v. Spain, the European Court of Human Rights observed that Article 14 of the European Convention without doubt covers “transsexualité”.^[1] Much earlier, however, beginning with Christine Goodwin v. United Kingdom, the Court held that a State’s failure to provide legal recognition for Goodwin’s gender re-assignment violated her right to privacy. The Court stated: “Under Article 8 of the Convention in particular, where the notion of personal autonomy is an important principle underlying the interpretation of its guarantees, protection is given to the personal sphere of each individual, including the right to establish details of their identity as individual human beings”.^[2] It confirmed this position in a line of succeeding cases. On similar grounds, under the ICCPR the UN Human Rights Committee has urged States to “recognize the right of transgender persons to a change of gender by permitting the issuance of new birth certificates”.^[3]

The European Court has also addressed the requirements that States have imposed on health insurance coverage for medical treatment associated with changing gender identity. In Van Kück v. Germany, the applicant had been denied reimbursement of the costs of medical treatment for expenses related to her gender reassignment operations and hormone treatment. The German courts had concluded that the applicant had not proved the treatments in question were medically necessary. The European Court found that requiring “medical necessity” breached the applicant’s rights under Article 6 (fair hearing) and Article 8 (privacy) of the Convention.^[4] In a similar case, the European Court held that imposing a mandatory two-year waiting period before diagnosis of “true transsexualism” could be established was contrary to both Articles 6 and 8.^[5]

The cases in this chapter can be divided into two categories. In the first, courts are dealing with a request for legal recognition of a change of gender in the absence of a specific statutory framework. The cases from Argentina, Malaysia, South Korea, Pakistan, and the Philippines fall into this category. The issue is whether an individual should be recognised under law as having a gender different from the one assigned at birth. In the second category, States have enacted legislation concerning legal recognition for a change of gender. Courts are therefore dealing with the question of whether the requirements imposed under such laws are constitutional. The cases from Australia, Germany, and New Zealand fall into this category.

In almost every case in the first category, the individual seeking gender recognition had undergone gender reassignment surgery. The exception is Khaki v. Rawalpindi. There the Supreme Court of Pakistan was operating in a cultural context that had long accepted hijras in some clearly defined social positions. The term hijra refers to individuals who are born male but who adopt female gender identities, typically through choice of dress and social roles. They may or may not have had male genitals removed surgically. The Court therefore did not focus its analysis on the surgical question when it ordered that hijras should be permitted to register as a “third sex.”

In the other cases in this category, the courts reveal very different reasoning. In Silverio v. Philippines, the Philippines Supreme Court held that the plaintiff could not change her name or sex because the law only allowed changes in official documents to be made following clerical or typographical errors. In the view of the Court, sex was immutably fixed at birth. For the South Korean Supreme Court, by contrast, true gender was determined not only by biology, but also by psychological and social factors. Because the principle behind the Family Register Act was to record the true personal status and relationships of a person, it was reasonable to allow the plaintiff to “correct” his gender in the Family Register. The Argentine court adopted a judicial compromise. Drawing on international and comparative law, the Family Tribunal had emphasised the right of privacy under Section 19 of the Constitution, which included the right to define one’s personal identity. On this ground, it concluded that the applicant should be issued new identity documents reflecting the changed gender. However, because the birth certificate was a record of a historical fact (the sex as recorded at birth) a new birth certificate could not be issued.

The second set of cases address statutory conditions for a change of gender. The Australian and New Zealand cases focus on the requirement of genital surgery. In Michael v. Registrar-General of Births, the applicant was a transgender man who had undergone a bilateral mastectomy, was on testosterone hormone treatment, and had lived as a man for years. He had not, however, had genital reconstruction surgery. Under Section 28 of the Births, Deaths, and Marriages Registration Act 1995, a Family Court could declare that a birth certificate should contain the person’s “nominated sex” if it was satisfied, on the basis of expert medical evidence, that the applicant “has assumed (or has always had) the gender identity of a person of the nominated sex, and has undergone such medical treatment as is usually regarded by medical experts as desirable to enable persons of the genetic and physical conformation of the applicant at birth to acquire a physical conformation that accords with the gender identity of a person of the nominated sex; and will, as a result of the medical treatment undertaken, maintain a gender identity of a person of the nominated sex”. Noting the expense and dangers of genital reconstruction surgery for a transgender man, the Court held that Michael was not required to undergo surgery in order to obtain a new birth certificate.

The Court also stated, however, that Michael would not always be considered legally male. In reaching this conclusion, the Court studied the legislative history of the Act and in particular Part 5, titled “Declarations of Family Court as to sex”. Section 33 of Part 5, titled “New information not to affect general law”, provided that “the sex of every person shall continue to be determined by reference to the general law of New Zealand”. The Court interpreted this as a reference to general law, which limited marriage to opposite sex partners. Furthermore, Section 77 of the Act concerned authorisation to search birth certificate records. Such searches were generally limited to the Registrar-General, but the Registrar-General could permit another person to inspect the records if the purpose was to investigate “whether or not the parties to a proposed marriage are a man and a woman”. As a result of these provisions, the Court concluded that Michael could be given a new birth certificate reflecting his male sex but that under certain circumstances information about the change of sex would be disclosed.

In State of Western Australia v. AH, the Supreme Court of Western Australia analysed the requirement of a “reassignment procedure” under the State’s Gender Reassignment Act 2000. Two individuals, AH and AB, had adopted male gender identities, undergone double mastectomies, and were undergoing hormone therapy. Neither AH nor AB had removed their internal female sexual organs or had surgery to remove external female genitalia or construct male genitalia. A lower court had found that both had completed the requirements for legal recognition of gender reassignment. The Supreme Court of Western Australia disagreed. It held that, under the Act, surgery was not specifically required, but that only individuals who had adopted the “gender characteristics of a person of the gender to which the person has been reassigned” could qualify for a recognition certificate. The Court found dispositive the fact that the applicants had retained both their internal reproductive organs and external genitalia. They did not therefore possess sufficient male gender characteristics.

Australian courts have been critical of the gender reassignment procedures imposed under State law. The Supreme Court of Western Australia suggested that legislators should have considered the fact that the Act made it more difficult for female to male transgender individuals to obtain a recognition certificate. In Re Alex, the federal Family Court of Australia regretted “that a number of Australian jurisdictions require surgery as a pre-requisite to the alteration of a transsexual person’s birth certificate in order for the record to align a person’s sex with his/her chosen gender identity”.^[6] This case was relied upon by the Family Court of Auckland in Michael v. Registrar-General of Births; a later decision concerning Alex is included in this chapter.

The two German cases deal with the requirements of the Transsexual Law. In both cases, the Constitutional Court found portions of the law unconstitutionally limited rights. In the first case, 1 BvL 10/05, the Constitutional Court struck down the requirement that an applicant must be unmarried or divorced before a new gender could be legally recognised. It found the forced divorce provision created a conflict between the right to marry and the right to protect one’s private sphere, including realisation of a self-determined sexual and gender identity. Both were protected under the Basic Law. Although the legislative purpose, to prevent the appearance of same-sex marriage, was legitimate, the law failed the proportionality test. Forcing the applicant to chose between recognition of her gender identity and her marriage was disproportionate to the legitimate legislative interest.

In the second case, 1 BVR 3295/07, the Constitutional Court considered the requirement that an individual must undergo gender reassignment surgery in order to be legally recognised in a new gender. The applicant, who was registered as male at birth but lived as a woman and was in a relationship with a woman, had been refused a civil partnership because civil partnerships were only available to same-sex couples. Because the applicant had not undergone reassignment surgery, marriage was the only means by which she and her partner could legally protect their relationship. However, since marriage in Germany was limited to opposite-sex couples, being in a marriage meant disclosing publicly that the applicant was born male. The Court held that the requirement of gender reassignment surgery was incompatible with the right to sexual self-determination and physical integrity, as protected by the Basic Law.