Recognition of the right to self-determination: between decline and progress

In December 2022, Scottish MPs passed a law allowing gender self-determination. The British government unfortunately blocked this widely welcomed social advance. On 17 January 2023, London officially blocked the bill’s enactment by refusing to give royal assent – a formal but necessary step for the enactment of any legislation in the UK. In response to this resistance, the Scottish government has announced that it will respond by using Section 35 of the Scotland Act 1998, which would allow legislation to be passed without the King’s consent. These disparities are indicative of the remaining tensions in Europe over transidentity, transgender protection and gender reassignment in civil status. Like Scotland, Spain has recently changed its legislation in favour of the rights of transgender people, allowing gender self-determination. On 28 February 2023, the Spanish Parliament passed the law of “real and effective equality for trans people” – or “transgender law” – suggested by the Podemos party.

Gender self-determination makes it easier for people to have their gender legally recognised, notably by removing any medical diagnosis requirements. Transgender people will no longer need to prove their gender dysphoria, which is often a long and degrading process, to see the gender they identify with recognised from age 16. The laws aim to avoid the distress caused to trans people by the mismatch between their biological sex and the gender they identify, but also to fight discrimination and increase the protection of trans people. In the field of social rights, the new Spanish legislation sets out positive obligations for companies and public administrations to achieve effective equality for LGBTQIA+ people and disseminate good practice in terms of inclusion. 

Germany is the latest country to follow this line of improvement in trans rights. On 25 March 2023 a parliamentarian revealed a recent agreement with Olaf Scholz’s government to simplify the administrative procedure for gender reassignment, allowing those affected to provide a simple self-declaration.

This sudden increase in the rights of people from the LGBTQIA+ community is more necessary than ever to address ordinary transphobia. However, this progress should not lead to illusions about the growing acceptance of the rights of transgender people. Despite some progress, the issue of trans-identity in Europe remains undeniably a divisive one.

Despite these recent improvements, only a handful of EU countries have enacted the principle of self-determination into national law. Denmark was a forerunner, adopting the principle as early as 2014, joined the following year by Ireland and Malta. Finally, Belgium amended its legislation in 2017 and Portugal and Luxembourg in 2018. There are some slim hopes for the Netherlands and Austria, where some steps towards reform seem to have been taken. France, on the other hand, seems to be more mixed. Currently, although medical treatment or an operation are no longer necessary criteria to modify gender in civil status, this remains subject to a court decision verifying the reality of gender dysphoria. For minors, the agreement of parents or guardians is required up to 18 – compared to 16 in Germany, for example.

Even more problematic is that Sweden, a pioneer in transgender rights, has reversed its position on transgender protection. In February 2022, the Swedish government announced the end of hormone therapy for minors, allowing the practice only for scientific research. In doing so, Sweden joined Finland’s position presented in 2020. Another regression was seen in Hungary, which adopted a series of anti-LGBT texts in December 2020. Gender is defined as only that of birth, so gender change is prohibited in civil status.

The lack of a European consensus on the issue of transidentity and the lack of common definitions of the corresponding notions explain the practical differences in European countries. 

The European Union has not developed yet any specific directive on gender identity discrimination. Directive 2000/78/EC promotes equal treatment in employment and occupation, prohibiting discrimination on the grounds of sexual orientation. However, its prohibition stems from the case law of the ECtHR. In 1996, the Court included in the category of ‘sex’ discrimination against a person on the grounds that they intend to undergo or have undergone a sexual conversion. Then Directive 2000/54/EC included in its preamble discrimination based on a person’s change of sex. However, these legislative texts are not sufficient to protect trans people, in particular because of the lack of recognition and consensus of the notions of “sexual orientation” or “gender identity”. A collective proposal was thus submitted to the UN General Assembly by France and the Netherlands on sexual orientation and gender identity. Fifty-seven states approved this European proposal, but a counter-declaration by 57 other states, federated by the Organisation of Islamic Cooperation, overturned this initiative. The interpretation of the European Courts, and in particular the CJEU, can still cover the inclusion of gender expression in the notion of discrimination in the name of their fight against all discrimination based on sex

Since 2015, the Council of Europe has been encouraging member states to facilitate self-determination, de facto supporting the prohibition of discrimination based on gender identity. However, such discrimination is still only prohibited by a minority of member states.

The right to health protection: between theory and practice

In 2019, the WHO removed transidentity from the list of mental disorders. This belated reclassification is a victory for the rights of trans people, and a major step forward for access to health services.The link between transidentity and the right to health is undeniable. Denying the existence of this identity or pathologizing it leads to psychological, verbal, and physical violence against the people concerned¹. Firstly, by belonging to a minority that is particularly criticised, misunderstood and institutionally discriminated against, trans people are subject to the apprehension of actual or potential violence causing abnormal stress. This reality has been the subject of numerous studies and has been theorised as ‘minority stress’ by Ian H. Meyer². Finally, a 2017 study shows that the rate of depression is higher among trans people who have not yet transitioned or completed their transition, not only compared to cisgender people, but it also decreases among trans people who have completed the transition process³. All these similarities in scientific and empirical studies, bringing together individual and societal experiences, are evidence that being a member of the trans community affects the mental health of individuals. Thus, governments that have recently allowed self-determination acknowledged their commitment to fighting gender dysphoria by depathologizing transidentity. 

The Revised European Social Charter guarantees in Article 11 the right to health protection. In the summary of the quasi-jurisprudence of the European Committee of Social Rights, the Council of Europe states that Article 11 complements Articles 2 and 3 of the European Convention on Human Rights⁴. Thus, the right protected by the Charter derives directly from the right to the integrity of the human person. It is explicitly stated that Article 11 is to be interpreted as including respect for physical and mental integrity as an integral part of the right to health protection⁵.

This interpretative development of Article 11 stems from a collective complaint initiated by Transgender Europe and ILGA-Europe against the legal obligation of sterilisation imposed in the Czech Republic on transgender persons wishing to initiate a gender change procedure in the civil registry. Thus, the rights defined by the Charter must be interpreted in the light of current reality, respecting the dignity of individuals. In this violation decision, the ECSR imposes several positive and negative obligations on governments, including the duty of direct or indirect non-interference in exercising the right to health. In the name of dignity and the notion of consent, any medical treatment that is not absolutely necessary may be found to violate Article 11, if it is required to obtain access to another right. Therefore, making a change of gender in civil status conditional to a medical operation is contrary to the Charter. This obligation of non-interference and protection of the health of trans persons was recalled by the Committee in its conclusions for 2021, as part of a general response to the right to health protection of transgender persons, but also to Poland. In its country conclusions, the Committee asked Poland to provide more information on the situation of transgender persons in the country, including on access to gender reassignment treatment and the conditions for legal recognition of gender identity.

This issue is undeniably linked to the notion of consent, since informed consent is essential for the proper exercise of the right to health, autonomy, and human dignity. Not only should transgender persons be free to seek medical treatment or surgery, but it should be preceded by adequate information. In fact, imposing a medical operation as a sine qua non condition for trans people to be recognised as belonging to the gender they correspond to, amounts to coerced consent.

Although these laws are favourable to the protection of the right to health of transgender people, they still seem too exceptional and invisibilised to be effective. The practical reality shows all the difficulties trans people face in accessing adequate health care and the many situations in which they are still subjected to degrading and discriminatory treatment.

Discrimination and harassment at work: the scourge of trans people

After analysing a series of surveys on the working conditions of trans people, the conclusion is clear: all over the world transgender people suffer from discrimination in the workplace because of being a trans minority.

In 2020, the EU Fundamental Rights Agency revealed the results of a survey entitled “A long way to go for LGBTI equality”⁶. In this survey the LGBTQIA+ community was asked whether they felt discriminated against based on their belonging to this community when looking for a job, and separately when working. Thus, both before and during their time at work, discrimination occurs. Among all categories of the LGBTQIA+ community, transgender respondents were significantly more likely to have felt discriminated against at work (35%). In 2022, an IFOP survey for “L’Autre Cercle” estimated that more than half of LGBTQIA+ people in France hear LGBTphobic expressions in their work organisation (“this is not a faggot’s job”, for example)⁷. Three out of ten say they have been the victim of at least one attack on this ground in their working life⁸. Between one and two million LGBTQIA+ people still hide their sexual orientation at work⁹. This scourge is not limited to Europe. A Canadian national survey on harassment and violence in the workplace estimates that in 2022, trans and non-binary people are subject to more harassment and violence than others. 

In addition to discrimination, transgender people therefore face the problem of harassment in the field of employment. Harassment is defined as repeated acts leading to a deterioration of working conditions, which may affect a person’s rights, dignity and physical or mental health, which may jeopardise their professional future. Logically, harassment can be qualified as discriminatory if it is based on a generally accepted discrimination criterion; thus, it includes gender identity. 

Article 20 of the Revised European Social Charter prohibits discrimination based on sex. Member States are required to put in place measures to ensure effective equality at all stages of professional careers. Furthermore, Article 3 protecting the right to safety and health at work should be interpreted as including the prohibition of violence and harassment at work¹⁰. The Charter does not define the risks to be regulated. Still, the Member States must demonstrate to the Committee the existence of adequate preventive and protective measures concerning certain risk areas, including psychosocial risks, work-related stress, aggression, violence, and harassment in the workplace¹¹. It is also stated that the Charter must be interpreted in a way that is adapted to current realities, so it seems that the specific issue of trans people must be addressed and protected by companies. 

At all stages of working life, whether at the time of hiring, career development or at the time of dismissal or termination, trans people suffer the consequences of trivialised LGBTphobia. This situation of human rights violations specific to LGBT persons in the workplace is particularly complex, as it is hardly regulated. Non-discrimination law must be applied in the employment sector, whether public or private. However, as mentioned above, there is no consensus on the notion of discrimination and what it encompasses. There is no specific prohibition of discrimination on the grounds of transidentity in European legislation. Case law has incorporated such violence into the prohibition of sex discrimination, but the coverage appears to be limited to people who have undergone sex reassignment.

The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, adopted in 2011, is the first human rights treaty to explicitly include gender identity as a ground for discrimination. At the national level, a minority of Council of Europe member states have explicitly included gender identity in their anti-discrimination legislation. France joined them recently, enshrining the term ‘gender identity’ as a specific discrimination¹² criterion to replace ‘sexual identity’. This progressive evolution avoids confusion between “sex” and “identity” and thus eliminates stigmatisation.

However, this lack of legislation and uneven progress worldwide allows negative stereotypes and discrimination to persist. Institutions’ lack of concrete action reveals passivity and a lack of consideration of what is at stake in this discrimination and the consequences for the lives of trans people. The persistent stigmatisation prevents the understanding of the notion of trans-identity.

In fact, the most effective development at the moment is more localised. For example, in 2012, the French organisation “l’Autre Cercle” created a Charter of LGBT+ Commitment, enshrining four main principles for companies. Companies can sign the Charter, committing themselves de facto to respecting its principles and publicly demonstrating their willingness to achieve equal treatment of LGBT+ employees. Today, the Charter has 186 signatories.In the face of international discord, would civil society actors be in the best position to effectively protect the violated rights of minorities?

By Anna Diaz

Références

1. Revealed by numerous surveys, see among others: FRA – European Union Agency for Fundamental Rights, “A long way to go for LGBTI equality“, 2020 ; Lucia S, Stadelmann S, Amiguet M, Ribeaud D, Bize R, Enquêtes populationnelles sur la victimisation et la délinquance chez les jeunes dans les cantons de Vaud et Zurich. Les jeunes non exclusivement hétérosexuel-le-s :populations davantage exposées? Lausanne : Institut universitaire de médecine sociale et préventive, 2017 (Raisons de Santé 279).
2. Meyer IH, « Prejudice, social stress, and mental health in lesbian, gay and bisexual population : conceptual issues and research evidence », Psychological Bulletin, 129(5), 674-697, 2003.
3. Durkwood, L., MacLaughlin, K., Olson, K. (2017) “Mental Health and Self-Worth in Socially Transition Transgender Youth.” Journal of the American Academy of Child & Adolescent Psychiatry, Volume 56, Issue 2, p. 116-123.
4. Digest of the case law of the European Committee of Social Rights, June 2022, p. 111.
5. Ibid, p. 112.
6. FRA – European Union Agency for Fundamental Rights. A long way to go for LGBTI equality, 2020.
7. Results of the 3rd LGBT+ Barometer of « L’Autre Cercle » in partneship with Ifop, Un état des lieux de l’inclusion des personnes LGBT+ au travail en France, 3 June 2022.
8. Ibid, pp.8-9.
9. Défenseur des droits, Agir contre les discriminations liées à l’orientation sexuelle et à l’identité de genre dans l’emploi, Guide may 2017.
10.  Digest of the case law of the European Committee of Social Rights, June 2022, p. 63.
11. Ibid.
12.  Law n°2017-86 from 27 January 2017 on equality and citizenship.