The Equal Rights Trust (ERT) notes an emerging trend of states taking an increasingly flexible approach towards official recognition of a person’s gender identity. This represents a shift towards greater understanding of the complexity of gender identity and better accommodation of gender variant persons’ needs.
This year has seen moves by various states which indicate, to varying degrees, a growing acceptance of the need to move away from the biological assessment and/or categorisation of gender, towards a situation in which the self-defined gender identity of gender variant persons is reflected in official documentation.
On 30 November 2011, the Lower House approved the Gender Identity Bill and sent it to the Upper House for debate by senators. The legislation would allow persons to undergo sex change operations without judicial authorisation and would entitle persons to amend their name and gender in national identity documentation without special permission from the courts, whether or not they have undergone surgery.
On 6 October 2011, the case of AB v Western Australia  HCA 42 confirmed that individuals are not required to have had complete physical gender reassignment surgery in order for the gender with which they self-identify to be officially recognised. The High Court of Australia found that:
The question whether a person is identified as male or female, by reference to the person's physical characteristics, is intended by the Act to be largely one of social recognition. It is not intended to require an evaluation by the Board of how much of a person's body remains male or female. Rather, the Board is directed by s 15(1)(b)(ii) to the question of how other members of society would perceive the person, in their day-to-day lives. Such a recognition does not require knowledge of a person's remnant sexual organs.
New guidelines announced by the Australian Ministry for Foreign Affairs in September 2011 make it easier for gender variant persons to have the gender on their passport specified as “X”, rather than "Male" or "Female". Previously, in order for a person’s gender to be changed on their passport, they would have had to have undergone gender reassignment surgery. Under the new guidelines, a statement from a medical practitioner supporting the application is sufficient.
In a judgment handed down on 11 January 2011, the German Constitutional Court ruled that section 8(1) Nos. 3 and 4 of the German Transsexuals Act 1980 were unconstitutional. Section 8(1) of the Transsexuals Act required that a person be “permanently infertile” and have “undergone surgery which has changed his or her external sexual characteristics and which has resulted in clearly approaching the person’s appearance to that of the other gender” in order for the person’s self-perceived gender to be recognised under the law of civil status. The Constitutional Court held that:
The permanent nature and irreversibility of transsexual persons’ perceived gender cannot be assessed against the degree of the surgical adaptation of their external genitals but rather against the consistency with which they live in their perceived gender. The unconditional prerequisite of a surgical gender reassignment according to § 8.1 no. 4 TSG constituted an excessive requirement because it requires of transsexual persons to undergo surgery and to tolerate health detriments even if this is not indicated in the respective case and if it is not necessary for ascertaining the permanent nature of the transsexuality.
In 2011, Nepal conducted a national census which, for the first time, included a third option in the gender categories from which citizens can choose to identify themselves. Nepal also issued its first citizenship certificate recognising the “third gender” in April 2011.
Following calls from Human Rights Watch, the Dutch government announced in September 2011 that it intended to amend Article 28 of the Dutch Civil Code which requires transgender persons to undergo hormone treatment and surgery, as well as be permanently and irreversibly sterilised, prior to having their new gender registered on any official documents. Despite being one of the first countries to introduce laws allowing for change of gender on official documents in 1985, the legislation has not been amended since.
On 16 March 2011, the Portuguese government passed the 17th Amendment to the Code of Civil Registration which enables gender variant persons to register the gender with which they identify and preferred names on their official documentation through a standardised administrative process. No medical interventions, in the form of sterilisation, hormone therapy, or surgery, are required for legal recognition of gender identity through this process.
The UK Home Office has announced that it is “considering the gender options available to customers in the British passport” and “exploring with international partners and relevant stakeholders the security implications of gender not being displayed in the passport”.
The UK Ministry of Justice Prisoner Service Information of March 2011 (PSI2011-007) on “The Care and Management of Transsexual Prisoners” contains guidance on the care, management and treatment of transsexual prisoners – both with and without gender recognition certificates. It recognises that “[a] transsexual person is someone who lives or proposes to live in the gender opposite to the one assigned at birth. A transsexual person may or may not have been diagnosed with gender dysphoria.”
In California, the Vital Statistics Modernisation Act was approved by the Governor and filed with the Secretary of State on 9 October 2011. It deletes those provisions of the pre-existing law which allowed, when a person applies for a new birth certificate following gender reassignment surgery, a person to file objections against the issuing of a new certificate. Pursuant to the new Act, a physician’s affidavit constitutes conclusive proof of gender change.
New rules adopted by the US Federal Prisons Bureau extended access to hormone treatment, counselling and gender reassignment surgery to gender variant persons while they are in prison. Prior to the adoption of new rules only inmates who had been diagnosed prior to incarceration were eligible for gender related treatment.
The US Social Security Administration has confirmed that it will end its practice of sending a “no match” letter to employers when a prospective employee’s registered gender does not match the gender given by the employee. This practice was occurring as part of the Social Security Number Verification System which enables employers to ensure individuals are who they say they are and that taxes and benefits are correctly allocated. However, it was adversely affecting individuals who no longer lived or identified as the gender assigned to them at birth.
The right to legal recognition
In order to properly secure the rights of gender variant persons it is essential that laws and policies regulating official documentation and identification procedures are designed in a way which take account of such persons’ needs. This implies a move away from reliance on rigid categorisation, and a move towards recognition of a person’s self-defined gender identity.
Principle 3 of the Yogyakarta Principles, which address the application of international human rights commitments to issues of sexual orientation and gender identity, provides that “[e]ach person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom.” Similarly, the European Court of Human Rights (ECtHR) held in Kuck v Germany that “the applicant's freedom to define herself as a female person, [is] one of the most basic essentials of self-determination.” The ECtHR has also recognised that a failure to recognise a person’s gender identity can have a serious impact upon a gender variant person’s enjoyment of human rights. In Goodwin v UK, the ECtHR said:
It must also be recognised that serious interference with private life can arise where the state of domestic law conflicts with an important aspect of personal identity ... The stress and alienation arising from a discordance between the position in society assumed by a post-operative transsexual and the status imposed by law which refuses to recognise the change of gender cannot, in the Court's view, be regarded as a minor inconvenience arising from a formality.
The Yogyakarta Principles provide in Principle 3 that in order to secure the human rights of gender variant persons states must:
Take all necessary legislative, administrative and other measures to ensure that procedures exist whereby all State-issued identity papers which indicate a person’s gender/sex — including birth certificates, passports, electoral records and other documents — reflect the person’s profound self-defined gender identity.
The European Parliament in resolution B7-0523/2011 on Sexual Orientation and Gender Identity adopted on 28 September 2011 has also called for “changing identity to be simplified”.
To read a news story on the Argentinean Gender Identity Bill, click here.
To read the full text of AB v Western Australia  HCA 42, click here.
To read the official press release by the Australian Ministry of Foreign Affairs, click here.
To read the revised policy for Australian sex and gender diverse passport applicants, click here.
To read the full text of the German Constitutional Court case click here [in German].
To read the official Press release of the German Constitutional Court case in English, click here.
To read a news story on the Nepali Census, click here.
To read a news story on the issuing of citizenship documents to a gender variant person in Nepal, click here.
To read the Human Rights Watch report on human rights violations against trans people in the Netherlands, click here.
To read a news story on the Dutch Ministry of Justice response, click here.
To read full text of the 17th Amendment to the Portuguese Code of Civil Registration, click here [in Portuguese].
To read the UK PSI on The Care and Management of Transsexual Prisoners, click here.
To read the full text of the California Vital Statistics Modernisation Act, click here.
To read the new US Federal Bureau of Prisons Rules, click here.
To read a press release from the US National Center for Transgender Equality, click here.
To read the full text of the EU Parliament Resolution B7-0523/2011, click here.
To read the full text of Kuck v Germany, click here.
To read the full text of Goodwin v UK, click here.
To read the full text of the Yogyakarta Principles, click here.