This report was drafted in 2018 by the European network of legal experts in gender equality and non-discrimination on request of the European Commission. The report analyses whether and how trans and intersex communities enjoy equality guarantees across the 28 EU Member States and three additional EFTA states (Iceland, Liechtenstein and Norway).
This Open Access book aims to find out how and why states in various regions and of diverse cultural backgrounds fail in their gender equality laws and policies. In doing this, the book maps out states’ failures in their legal systems and unpacks the clashes between different levels and forms of law—namely domestic laws, local regulations, or the implementation of international law, individually or in combination. By taking off from the confirmation that the concept of law that is to be used in achieving gender equality is a multidimensional, multi-layered, and to an extent, contradictory phenomenon, this book aims to find out how different layers of laws interact and how they impact gender equality. Further to that, by including different states and jurisdictions into its analysis, this book unravels whether there are any similarities/patterns in how these states define and utilise policies and laws that harm gender equality. In this way, the book contributes to the efforts to devise holistic and universal policies to address various forms of gender inequalities across the world.
This book undertakes a critical analysis of international human rights law through the lens of queer theory. It pursues two main aims: first, to make use of queer theory to illustrate that the field of human rights law is underpinned by several assumptions that determine a conception of the subject that is gendered and sexual in specific ways. This gives rise to multiple legal and social consequences, some of which challenge the very idea of universality of human rights. Second, the book proposes that human rights law can actually benefit from a better understanding of queer critiques, since queer insights can help it to overcome heteronormative beliefs currently held. In order to achieve these main aims, the book focuses on the case law of the European Court of Human Rights, the leading legal authority in the field of international human rights law. The use of queer theory as the theoretical approach for these tasks serves to deconstruct several aspects of the Court’s jurisprudence dealing with gender, sexuality, and kinship, to later suggest potential paths to reconstruct such features in a queer(er) and more universal manner.
While medical identification and treatment of gender dysphoria have existed for decades, the development of transgender as a “collective political identity” is a recent construct. Over the past twenty-five years, the transgender movement has gained statutory nondiscrimination protections at the state and local levels, hate crimes protections in a number of states, inclusion in a federal law against hate crimes, legal victories in the courts, and increasingly favorable policies in bureaucracies at all levels. It has achieved these victories despite the relatively small number of trans people and despite the widespread discrimination, poverty, and violence experienced by many in the transgender community. This is a remarkable achievement in a political system where public policy often favors those with important resources that the transgender community lacks: access, money, and voters. The Remarkable Rise of Transgender Rights explains the growth of the transgender rights movement despite its marginalized status within the current political opportunity structure.
This book contributes to current debates about “queer outsides” and “queer outsiders” that emerge from tensions in legal reforms aimed at improving the lives of lesbian, gay, bisexual, transgender, intersex, and queer people in the United Kingdom. LGBTIQ people in the UK have moved from being situated as “outlaws” – through prohibitions on homosexuality or cross-dressing – to respectable “in laws” – through the emerging acceptance of same-sex families and self-identified genders. From the partial decriminalisation of homosexuality in the Sexual Offences Act 1967, to the provision of a bureaucratic mechanism to amend legal sex in the Gender Recognition Act 2004, bringing LGBTIQ people “inside” the law has prompted enormous activist and academic commentary on the desirability of inclusion-focused legal and social reforms. Canvassing an array of current socio-legal debates on colonialism, refugee law, legal gender recognition, intersex autonomy and transgender equality, the contributing authors explore “queer outsiders” who remain beyond the law’s reach and outline the ways in which these outsiders might seek to “come within” and/or “stay outside” law.
This comprehensive book has introductory sections on the facts and language related to trans, and then substantial sections on the relevant parts of the Equality Act 2010 as related to transgender individuals, and the Gender Recognition Act 2004. Specialist sections then follow, dealing with Associations, Asylum, Criminal Justice, Data Protection, Education, Employment, Family, Healthcare, Media, Name and Gender Marker Change; Politics and Parliament, Prison, Services, Sport, Gender-critical views, Example Policies and Reform.
While social change regarding trans(sexuality) has evolved within an expanding nexus of concepts, practices, regulations and institutions, this process has barely been analysed systematically. Against the background of legislative processes on gender recognition in a society shaped by heteronormative hegemony, Adrian de Silva traces how sexology, the law, federal politics and the trans movement interacted to generate or challenge concepts of trans(sexuality) from the mid-1960s to 2014 in the Federal Republic of Germany.
The need to allow a change of legal sex/gender in certain cases is no longer disputed in most jurisdictions. The question has therefore shifted to what the requirements for such a change of the legal sex/gender should be. This book examines these thus far under-researched questions, namely what the full legal consequences of a change of legal sex/gender should be, for example with regard to existing legal relationships such as marriages and registered partnerships, but also concerning children and parentage. This book is the result of an international research project, including not only national reports from 14 European and non-European jurisdictions but also two chapters that look at legal sex/gender changes from a Christian perspective and one chapter from a medical-psychological perspective. The final comparative chapter compares and contrasts the different approaches and requirements and makes recommendations for best practice and law reform.
The European Commission is committed to tackling discrimination and promoting equality for transgender people. To further this objective, the European Commission’s department responsible for justice, consumer rights and gender equality (DG Justice and Consumers) commissioned and supervised this study. The research focused on the position and experiences of trans people in education, employment and later life, as well as their interactions with Legal Gender Recognition (LGR) procedures and their experiences of coming out. It also considered the impact of discrimination that trans individuals can face throughout their lifetime. Focusing on these areas, the study had two key objectives: 1) providing an overview of the situation of transgender people in the EU and 2) understanding whether there is a positive correlation between inclusive policies allowing for Legal Gender Recognition (LGR) and the well-being of transgender people. To achieve those two main objectives, the study consulted a total of 1,015 adults who identified as transgender across the 27 EU Member States and the UK, in addition to conducting a literature review, legal research and a quantitative analysis of available data. The results of these activities brought a wealth of insights into the challenges and barriers transgender people face across Europe. These formed the basis of recommendations at EU and Member State level.
This book analyzes the foundational frame of legal reasoning when courts interpret the 'plain language' and 'ordinary meaning' of terms such as 'sex', 'man' and 'woman'. There is a rich and complicated line of cases on how to define these terms and how to legally categorize transgender people. When dealing with different legal issues, judges need to give a clear 'yes' or 'no', determinate answer to a legal question. Marginal categorizations could be problematic even for experts. The book analyses nine decisions that relate to transgender people's workplace protection under Title VII in United States and the right to marry in United Kingdom and Hong Kong. It brings in a historical discussion of the development of interpretative practices of law and legal categorization of transgender individuals across past decades, drawing on the intricate relationship between time and statutory interpretation.
This book challenges law’s reliance on neurology’s brain-sex binary. The brain has become the latest candidate in a historical search for a reliable and fixed biological marker of ‘true sex’ that has permeated every aspect of Western culture, including law. As definitions of the sexed and gendered body have become ever more contentious, the development and dissemination of brain-sex theories have come to dominate popular understanding of LGBTI+ identities. But, this book argues, the brain is no more helpful than earlier biological measures in ensuring just outcomes. Examining how law determines and differentiates ‘male’ and ‘female’ in two contested areas of sexed identity –through a discussion of Australian cases authorising medical interventions to alter the embodied sex characteristics of transgender minors and intersex minors –the book demonstrates an incoherence in the legal understanding of gender identity development. As the brain too fails as a convincing biological anchor for the binary sex categories of male and female, law must, it is argued, retreat from its aspiration to create, define, and regulate artificially bounded sex categories of male and female.
The Gender Recognition Act (GRA) has often been described as a groundbreaking and progressive legal framework for allowing people to legally change their gender. This book seeks to challenge this representation by drawing on in-depth qualitative interviews with trans people about the GRA. Theoretically this book uses the concepts of legal consciousness, agency and emotion to highlight the normative underpinnings of the GRA. Overall, the book contends, the GRA does not accurately reflect many trans people's own understanding of their gender identity or their sexuality. It is designed to create subjects that govern their behaviour and self-expression in a way that aligns with a purely binary model of sex/gender and sexuality. Although a deviation from these norms does not incur any direct punishment, it indirectly leads to a denial of rights and legal protections. By reviewing relevant legislation and case law, and through qualitative research, the book establishes how, instead of uncritically accepting or completely rejecting the GRA, trans people enact their singular identities by engaging strategically with law.
Access to medical treatment for trans youth occupies a haphazard and dynamic legal landscape. In this comprehensive scholarly analysis of the historical and current legal principles, Steph Jowett examines the medico-legal nexus of regulation of this healthcare in Australia and in England and Wales. This is informed by an in-depth discussion of the medical literature on treatment for trans youth, including clinical guidelines, the outcomes of treatment and outcomes for trans youth who are unable to be treated. With illustrative examples and clear language, Jowett argues that legal barriers to clinical practice should be congruent with and reflect the current state of medical knowledge. Not only does Jowett assess the extent to which key legal decisions have been consistent with medical knowledge in the past, but she offers a nuanced, comparative perspective that will inform reform efforts in the future.
To what extent is the legal subject gendered? Using illustrative examples from a range of jurisdictions and thematically organised chapters, this volume offers a comprehensive consideration of this question. With a systematic, accessible approach, it argues that law and gender work to co-produce the legal subject. Cumulatively, the volume's chapters provide a systematic evaluation of the key facets of the legal subject: the corporeal, the functional and the communal. Exploring aspects of the legal subject from the ways in which it is sexed and sexualised to its national and familial dimensions, this volume develops a complete account of the various processes through which legal orders produce gendered subjects. Across its chapters, each theoretically ambitious in its own right, this volume outlines how the law not only acts on the social world, but genders it.
The Human Rights Act brings many of the rights in the European Convention on Human Rights into UK law. It requires all public bodies, including courts, to protect a person’s human rights, and Parliament is required, where possible, to pass new laws which are compatible with the ECHR. This human rights framework will become influential in shaping the law of England and Wales with respect to the status of transsexual and transgender persons.
In the case of REES V THE UNITED KINGDOM, a transgender man claimed that the UK government's refusal to amend his birth certificate violated his rights under Articles 8 and 12 of the European Convention on Human Rights. The case is lost but the European Court of Human Rights notes the seriousness of the problems affecting transsexuals and the need for review “having regard particularly to scientific and societal developments.”
The Corbett v Corbett (otherwise Ahley) divorce case establishes a precedent that a person’s sex is fixed at birth. Justice Ormrod J holds that the purported marriage between Mr Corbett and April Ashley, a fully post-operative male-to-female ‘transsexual’ person is void, and grants Mr Corbett a decree of nullity of marriage. Ormrod J holds that for the purpose of marriage a person’s ‘true sex’ is fixed at birth, and a male-to-female transsexual person cannot ‘reproduce a person who is naturally capable of performing the essential role of a woman in marriage’.
In the case of P vs S and Cornwall County Council, the European Court of Justice finds that a transwoman was wrongfully dismissed from an administrative post in a school in Cornwall because of her gender reassignment. The court rules that discrimination on the grounds of sex must be taken to include discrimination on the grounds of gender reassignment.
This report outlines international and regional human rights standards for recognising gender identity and expression and provides a comparative analysis of legal gender recognition laws in seven Commonwealth countries – New Zealand, Malaysia, India, Namibia, South Africa, Guyana and Malta. The report explores how these seven geographically diverse jurisdictions approach gender identity and analyses the different legislative models of recognising self-identified gender, from models of self-determination (Malta) to surgery-focused requirements (Namibia), and from a broad spectrum of amendment orientated procedures (India) to a country without any gender recognition process (Guyana). The report concludes by drawing out broad themes from the country case studies and providing a set of practical general recommendations for legal reform.
Self-Declaration in the Legal Recognition of Gender examines the impact of legislation premised upon the principle of ‘self-declaration’ of legal gender status. Existing doctrinal and comparative analyses have tended to come out strongly in favour of, or against, self-declaration. This book offers a socio-legal alternative which focuses on how self-declaration is experienced, on an embodied level, by trans and gender diverse people. It presents research conducted in Denmark, which became the first European state to adopt self-declaration in June 2014. By analysing Danish law through a Foucauldian framework which brings together socio-, feminist, and trans legal scholarship on embodiment and jurisdiction, the book offers the first empirically based and theoretically informed analysis of self-declaration. It draws upon legal consciousness, affect theory, vulnerability, and governmentality literatures to argue that the jurisdictional boundaries which existed between law and medicine were maintained throughout the reform process. This limited the impact of the legislation, enabling access to health care to be restricted in the same year in which amending legal gender status was liberalised. As the list of states that have adopted self-declaration increases, this intervention offers activists and policymakers insights which might shape how they respond to similar reform proposals in the future.
From our television screens to the ballot box, transgender people have suddenly become part of the zeitgeist. This apparently overnight emergence, though, is just the latest stage in a long and varied history. Trans Britain chronicles this journey in the words of those who were there to witness a marginalised community grow into the visible phenomenon we recognise today: activists, film-makers, broadcasters, parents, an actress, a rock musician and a priest, among many others.
Over the last decade, trans rights and gender variation as legal and a human rights issues have been high on the international and national agendas. Improved registration of and attention for gender variation and gender incongruence is accompanied by attention for the often far-reaching requirements that trans persons have to comply with in order to obtain legal recognition of their actual gender identity. A small but rapidly growing number of (mostly European and South American) States have recently reformed their legal frameworks of gender recognition by allowing trans persons to change their official sex registration on the basis of gender self-determination. Against that background, this book brings together international experts to discuss questions and challenges relating to the legal articulation of the emerging right to gender self-determination and its consequences for law and society, such as the future of sex/gender registration and the protection of trans persons against discrimination. Given the importance of State practice for the development of the right to gender self-determination and its implementation in law, particular attention is given to the national contexts of Belgium, Germany and Norway. These three countries may be perceived as world leaders in protecting trans rights, and therefore noteworthy 'laboratories' for future State practice.
Using personal interviews, legal case histories, and transgender theory, Transgender Employment Experiences combines policy analysis with the lived experiences of twenty transgender-identified employees, showing how worker protections that should exist under the Civil Rights Act are instead systematically undermined in the case of many transgender employees. Rather than focusing solely on negative experiences, however, Kyla Bender-Baird also highlights the positive experiences her respondents had coming out at work, illustrating examples of best practices in response to transitioning. Bender-Baird covers many forms of discrimination that transgender workers face, such as harassment, gender-based dress codes, income-related inequities, bathroom policies, and background checks. Drawing from this analysis, she argues for protections for gender expression in policy decisions, legislative efforts, and for a multipronged approach to workplace discrimination.
