Recent Interights work on transgender rights and related news
I would first like to highlight a new article on transgender rights litigation I published recently, titled “Moving Beyond Goodwin: A Fresh Assessment of the European Court of Human Rights’ Transgender Rights Jurisprudence” and available HERE. The article offers a new perspective on the European Court of Human Rights’ jurisprudence on the right of transgender people to legal gender recognition. He explores the implications of these judgments and highlights certain tensions in the Court’s discourse on transgender rights. In particular, on the one hand the Court loftily proclaims a fundamental right to gender self-determination, and on the other hand restricts access to the right to ‘postoperative transsexuals’ on grounds which are insufficiently explained. Furthermore, the Court’s pronouncements on transgender rights appear to be predicated on favourable circumstances in the country against the cases were brought in the first place, leaving the matter open as to the standards applicable in countries where transgender people are deprived of any legal protections. The Court is called to clarify these tensions and rebuild its transgender jurisprudence on a sounder doctrinal base, that is more consistent with the values of human dignity and personal autonomy underpinning the European Convention on Human Rights. The article is part of a thematic edition of the Interights Bulletin focusing on lawyering for marginalised communities, and published in cooperation with the Open Society Public Health Program.
Second, on 9 July 2013, the European Court of Human Rights struck out the application in the case Cassar v Malta from its list of cases, taking note of the friendly settlement concluded between the parties. The case concerned the Maltese authorities’ refusal to grant permission to the applicant, a female trans person who had undertaken gender reassignment surgery, to marry in her acquired gender. Interights, jointly with the International Commission of Jurists and Transgender Europe, submitted a third party intervention in the case. By this submission we mainly tried to avert the risk of a backslide from the standards clearly articulated in the landmark 2002 judgment Christine Goodwin v. the United Kingdom, that “post-operative transsexuals” have the right to full recognition in their acquired gender, for all legal purposes including marriage. We felt that we needed to challenge the reasoning in the 2011 judgment of the Maltese Constitutional Court, which harked back to a pre-Goodwin essentialist understanding of gender as an immutable category defined at the time of birth, and which challenged the authority of the Strasbourg Court to set a precedent in this field through “means of social engineering”. In addition to reviewing the widespread support in comparative law and practice for full legal gender recognition of “post-operative transsexuals”, the third-party brief, which is available HERE, also presented evidence demonstrating the emergence of gender identity as a protected ground under anti-discrimination law at the international and domestic levels.
The risk fortunately did not materialise, as the Government presumably understood that the chances of turning the clock back on Goodwin were limited. Under the terms of the friendly settlement, the Maltese Government committed to adopt legislation confirming the applicant’s right to marry in her acquired gender by the end of 2013, and to pay her 10,000 Euro by way of compensation. Even though we hoped that a judgment on the merits in this case would endorse and strengthen the Goodwin precedent, this too is a positive outcome. We were successful in averting the backslide risk mentioned above, and if the Government sticks to its commitments and adopt legislation, this will end up improving the situation for the applicant, as well as for the trans community in Malta as a whole. The third party intervention in Cassar is part of Interights’ efforts to provide systematic support to transgender cases pending before the European Court of Human Rights, with a view to achieving higher standards of human rights protection in this area
Finally, I also want to take this opportunity to publicise the translation into English of the landmark ruling of the Swedish Administrative Court of Appeals of 19 December 2013, in which it struck down the sterilisation requirement attached to legal gender recognition as being in breach of Swedish constitutional law as well as Articles 8 and 14 of the European Convention on Human Rights. I would like to highlight two particularly valuable points made in the judgment. First, the Court of Appeals clarified that to the extent that “the intervention is a condition for entitlement to a certain benefit or right it would normally be considered forced”, and that therefore “it cannot be considered to have any voluntary basis”. This in fact is a live issue in Hamalainen v. Finland, a case that is now pending before the Grand Chamber of the European Court of Human Rights, where the parties are arguing over whether the ex lege conversion of marriage into registered partnership, that is a precondition for legal gender recognition, is forced on the spouses or the result of a voluntary choice. Second, the Court of Appeals noted that the initial justification offered for the sterilisation requirement, namely ”to eliminate the risk of confusion in family relationships” where men gave birth to babies, was unsubstantiated. The Court was not able to detect any other justifications for maintaining the said requirement in the law. I hope that other courts in Europe and beyond will follow the example of the Swedish Administrative Court of Appeals, and will start to scrutinise the extraordinarily abusive requirements routinely attached to legal gender recognition in many countries, including forced divorce, forced genital surgery and forced sterilisation. The translation of the Swedish ruling is available HERE and has been carried out with the support of the Public Health Program of the Open Society Foundations.