Handbook on European non-discrimination law – Contents
- Under the ECHR, gender identity is protected under the category of ‘other status’.
- Under EU law, gender identity is protected to a limited extent under the protected ground of sex. It covers individuals who intend to undergo or have undergone gender reassignment surgery.
Thus, the more broadly accepted definition of gender identity encompasses not only those who undertake gender reassignment surgery (‘transsexuals’), but also persons who choose other means to express their gender, such as transvestism or cross-dressing, or simply adopting a manner of speech or cosmetics usually associated with members of the opposite sex.
Gender identity refers to “each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms”.
Source: Yogyakarta Principles (2007), Yogyakarta Principles on the application of international human rights law in relation to sexual orientation and gender identity, March 2007. An independent body of experts in International Human Rights Law adopted these principles.
It should be stressed, however, that under EU non-discrimination law, cur- rently there is no specific provision for protection against discrimination on grounds of a person’s gender identity or gender expression.468 Following the case of P v. S and Cornwall County Council,469 the non-discrimination ground of gen- der identity is only partly covered by the principle of equal treatment for men and women. The CJEU held that the scope of the principle of equal treatment for men and women could not be confined to the prohibition of discrimination based on the fact that a person is of one sex or the other. Accordingly, the ground of sex encompasses discrimination against an individual because he/she “intends to undergo, or has undergone, gender reassignment”. Therefore, the ground of sex as construed under EU law currently protects gender identity only in a narrow sense. This approach is reaffirmed in the Gender Equality Directive (recast) (2006/54/EC).470 Similarly, studies of na- tional legislation regulating this area show no consistent approach across Europe, with states largely divided between those that address ‘gender identity’ as part of ‘sexual orientation’, and those that address it as part of ‘sex discrimination’.
Example: The case of K.B. v. NHS Pensions Agency471 concerns the refusal of KB’s transsexual partner a widower’s pension. This refusal was because the transsexual couple could not satisfy the requirement of being married; transsexuals were not capable of marrying under English law at the time. In considering the issue of discrimination, the CJEU held that there was
no discrimination on the ground of sex because, in determining who was entitled to the survivor’s pension, there was no less favourable treatment based on being male or female. The CJEU then changed the direction of the consideration. It then concentrated on the issue of marriage. It was highlighted that transsexuals were never able to marry, and thus never able to benefit from the survivor’s pension, whereas, heterosexuals could. Consideration was then given to the ECtHR case of Christine Goodwin.472 Based on these considerations, the CJEU concluded that the British legislation in question was incompatible with the principle of equal treatment as it prevented transsexuals from benefitting from part of their partners pay.
Example: Similar considerations arose in Richards v. Secretary of State for Work and Pensions.473 Richards, who was born a man, underwent gender reassignment surgery. The case surrounded the state pension entitlement in the United Kingdom, as at the time, women received their state pension at the age of 60 years, while men received their state pension at the age of 65 years. When Richards applied for state pension at the age of 60 years, she was refused, with an explanation stating that legally she was recognised as a man and therefore she could not apply for state pension until she reached the age of 65 years. The CJEU held that this was unequal treatment on the grounds of her gender reassignment, and as a consequence this was regarded as discrimination contrary to Article 4 (1) of the Directive on the progressive implementation of the principle of equal treatment for men and women in matters of social security.474
Under the ECHR, the notion of gender identity is interpreted more widely. The ECtHR has held that the prohibition of discrimination under Article 14 of the Convention also covers questions related to gender identity.475 The ECtHR stressed that “gender and sexual orientation are two distinctive and intimate characteristics […]. Any confusion between the two will therefore constitute an attack on one’s reputation capable of attaining a sufficient level of seriousness for touching upon such an intimate characteristic of a person.”476
Discrimination based on ‘gender identity’ can derive “from traditional social perceptions and legal settings linked to being a transsexual person”.477 There are two main legal issues relating to discrimination based on gender identity. The first relates to access to gender reassignment. The second relates to legal gender recognition procedures, which can enable transgender persons to live in accordance with their preferred gender identity.
Example: The case of Hämäläinen v. Finland478 concerns the refusal to change the applicant’s male identity number to a female one following her gender reassignment surgery, unless her marriage was transformed into a civil partnership. The ECtHR confirmed that states have an obligation to recognise the change of gender undergone by post-operative transsexuals through, inter alia, the possibility of amending all data relating to a person’s civil status. However, in the applicant’s case, the ECtHR dismissed the complaint under Article 14. The Court found that the problems experienced in relation to her request for a female identity number did not result from discrimination because her situation and the situation of cissexuals were not sufficiently similar to be compared with each other. The ECtHR also dismissed the Article 8 complaint, finding that the conversion of the applicant’s marriage into a registered partnership would have no implications for her family life. The legal concepts of marriage and registered partnership were almost identical in Finland and the conversion would not have had any implications on the paternity of her biological child or on the responsibility for the care, custody and maintenance of the child.
The above judgment confirmed the states’ obligation to enable legal gender recognition. However, at the same time, a legal requirement that a person must first change their civil status, as a prior condition for access to a legal change of gender, does not contravene the Convention if it does not affect the family life of the person concerned (for example their rights and obligations regarding a child).
Example: In Y.Y. v. Turkey,479 the applicant had been refused gender reassignment surgery on the grounds that he was not ‘permanently unable to procreate’ as required by domestic law. He complained that, by refusing to grant him authorisation for gender reassignment surgery (without which it was not possible to obtain legal recognition of his preferred gender), the Turkish authorities had discriminated against him. The ECtHR stressed the importance of the freedom to define one’s gender identity and held that the principle of respect for the applicant’s physical integrity precluded any obligation for him to undergo treatment aimed at permanent sterilisation.
Example: In Van Kück v. Germany,480 the private medical insurance company of the applicant, who had undergone gender reassignment surgery and hormone treatment, refused to reimburse the costs of her treatment. The German Court of Appeal, which heard the applicant’s claim against the insurance company, determined that the medical procedures were not ‘necessary’ as required under the agreement. Therefore, the applicant was not entitled to reimbursement. The ECtHR found that, considering the nature of gender identity and the gravity of a decision to undergo irreversible medical procedures, the national court’s approach had not only failed to ensure the applicant received a fair trial, violating Article 6 of the ECHR, but also violated her right to respect for private life guaranteed by Article 8 of the ECHR.
Example: In its ruling,481 the Athens Justice of Peace confirmed the right to the recognition of gender identity without gender reassignment surgery. At his birth, the applicant was registered in the public registry as a ‘girl’. From early childhood, however, the applicant showed symptoms of a gender identity disorder. He underwent hormone therapy (testosterone injections) and a double mastectomy. The court held that a requirement to undergo gender reassignment surgery to modify the existing entry in the public registry would be excessive and would violate Article 8 of the ECHR, as well as Articles 2 and 26 of the ICCPR. The court concluded that, in the applicant’s case, the male sex was prevailing. Moreover, as the male sex and a male name are fundamental features of the applicant’s personality, they must appear in the public registry; therefore, the existing entry must be modified accordingly.
Under CoE law, the Istanbul Convention prohibits discrimination based on sexual orientation and gender identity. ECRI has started to monitor LGBTI-related issues in Council of Europe member states.482
Apart from the issues discussed above, there are other legal issues connected with discrimination on the basis of gender identity. For example, it is considered equally problematic that many states require the registration of a baby’s sex at birth as either male or female.483 Another issue which is highly criticised concerns medical intervention in babies in order to impose a specific sex where the new- born baby’s sex is unclear.484
465. UN, Committee on the Rights of Persons with Disabilities (2016), General comment No. 3 (2016) on women and girls with disabilities, CRPD/C/GC/3, 2 September 2016.
466. UN, CESCR (2005), General Comment No. 16: The Equal Right of Men and Women to the Enjoyment of All Economic, Social and Cultural Rights (Art. 3 of the Covenant), E/C.12/2005/4, 11 August 2005, para. 11.
467. UN, CEDAW (2010), Communication No. 28/2010, CEDAW/C/51/D/28/2010, 24 February 2012, para. 8.8.
468. Explicit prohibition of discrimination on the ground of gender identity is foreseen in Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA, OJ L 315, 14.11.2012, pp. 57–73, recital 9.
469. CJEU, C-13/94, P v. S and Cornwall County Council, 30 April 1996.
470. Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast), OJ L 204, 26.7.2006, pp. 23–36.
471. CJEU, C-117/01, K.B. v. National Health Service Pensions Agency and Secretary of State for Health, 7 January 2004.
472. ECtHR, Christine Goodwin v. the United Kingdom [GC], No. 28957/95, 11 July 2002.
473. CJEU, C-423/04, Sarah Margaret Richards v. Secretary of State for Work and Pensions, 27 April 2006.
474. Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security, OJ 1979 L 6, p. 24.
475. ECtHR, Identoba and Others v. Georgia, No. 73235/12, 12 May 2015, para. 96.
476. ECtHR, Sousa Goucha v. Portugal, No. 70434/12, 22 March 2016, para. 27.
477. FRA (2015), Protection against discrimination on grounds of sexual orientation, gender identity and sex characteristics in the EU – Comparative legal analysis – Update 2015, Luxembourg, Publications Office, p. 15.
478. ECtHR, Hämäläinen v. Finland [GC], No. 37359/09, 16 July 2014.
479. ECtHR, Y.Y. v. Turkey, 14793/08, 10 March 2015.
480. ECtHR, Van Kück v. Germany, No. 35968/97, 12 June 2003, paras. 30 and 90-91.
481. Greece, Athens Justice of Peace, Decision No. 418/2016, 23 September 2016, see European network of legal experts in gender equality and non-discrimination (2016), Recognition of gender identity without gender reassignment surgery.
482. See Council of Europe, European Commission against Racism and Intolerance (ECRI) (2012), Information document on the fifth monitoring cycle of the European Commission against Racism and Intolerance, 28 September 2012, point 9.
483. FRA (2015), The fundamental rights situation of intersex people, Luxembourg, Publications Office; Council of Europe, Commissioner for Human Rights (2011), Study on Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe.
484. Several CoE documents condemned this controversial practice; see, for example, Resolution 1952 (2013), ‘Children’s right to physical integrity’.
5.2. Gender identity