Gender

From Max-EuP 2012

by Jens M Scherpe

1. General

Generally, persons are classified as being of either male or female gender. The traditional view is that gender is fixed irrevocably at birth; however, in the light of recent medical and psychological research, this view is no longer tenable, particularly with regard to intersexuality and transsexuality. Moreover, it is probably necessary to distinguish between sex (the biological-genetic attributes of a person) and gender (the social attributes of a person), and avoid using them interchangeably as many legal texts do.

The increasing equality of men and women under the law has led to gender playing a less important legal role (discrimination (general) and discrimination (employment law)), although full equality has neither legally nor practically been achieved in the European jurisdictions. In some areas gender remains relevant, eg in criminal law and social welfare law, and particularly in family law. In many jurisdictions it matters greatly which gender the two persons have who want to enter into a marriage (or, as the case may be, into a formalized same-sex relationship); the same can be true for the recognition of the rights and duties of cohabitants (cohabitation). In about half of the European jurisdictions the gender of a parent can still have a significant impact on whether the parent is awarded parental responsibility/custody and/ or contact, especially if the child is born out of wedlock.

2. Intersexuality (also: disorder of sex development or hermaphroditism) and allocating a gender

A person is considered to be intersexual if it is not possible to unequivocally classify that person as either male or female because of the physical sexual characteristics of that person. There is a considerable range of medical conditions that can fall under this broad definition, and it is estimated that 0.1 to 4 per cent of the population are intersexual, depending on the exact criteria used.

In mediaeval times and the Renaissance it was common in some cultural groups in Europe to allow intersexual persons to choose which gender they wanted to belong to when they reached adulthood. However, since the beginning of the 20th century, it has usually been medical professionals, sometimes in cooperation with the parents, who determine the gender of newborn, intersexual children. It was common practice to surgically ‘adjust’ the child to the chosen gender, but medical and psychological studies have proved such procedures to often have a very negative impact on the long-term development of intersexuals, and this practice has became more and more contentious as a result.

In legal discussion, there are increasingly those who question the strict dichotomy of gender as either male or female; however, there is disagreement about how to move away from this fixed dichotomy. Some advocate the recognition of a third gender of ‘intersex’ or ‘intersexual’. The approach in Europe, however, remains a binary one, with recognition of only two legal genders—male and female—one of which must principally be recorded on birth (and other official) certificates. If such a clear classification is not possible, as in many cases of intersexuality, in some jurisdictions it is possible to record this fact as well. In the Netherlands, for example, Art 1:19d NBW expressly permits it to be recorded that the gender of the child could not be determined, and comparable legal rules are in place in Belgium (Art 57 Belgian Civil Code). Recording a ‘third’ gender, for example ‘intersex’ or ‘hermaphrodite’, is so far not permitted in any of the European jurisdictions (see eg for Germany LG München I 30 June 2003, FamRZ 2004, 269, and for the Netherlands Hoge Raad 30 March 2007, JOL 2007, 224).

A change or ‘correction’ of the original entry into public records is generally possible in European jurisdictions in case of intersexuality. For example, the Swedish Lag (1972:119) om fastställande av könstillhörighet i vissa fall (Act on determination of gender in certain cases) in § 2 allows intersexuals to correct an original entry of a gender if it becomes obvious that the physical attributes of the individual developed in such a way that they conform better to the other gender. Likewise, according to the German § 48 Personenstandsgesetz such a change can be made (for change of legal gender see also 3. below).

However, in those cases where it is recorded that the gender could not be determined, the lack of a designation as either male or female will have an impact on the application of norms which specifically require one or the other gender. One example is the right to marry (or, where available, enter into a formalized relationship, which is exclusive to couples of the same sex like the German eingetragene Lebenspartnerschaft, the registered partnerships in Denmark, Finland and Iceland or the civil partnership of the United Kingdom same-sex relationships), which can be denied to intersexual persons in some European jurisdictions on this basis, possibly in contravention of the ECHR (human rights and fundamental rights (ChFR and ECHR)). While Art 12 ECHR merely states that ‘men and women’ should have the right to marry it is nevertheless questionable whether the right to a formalized, legal relationship can be denied to intersexuals. In several European jurisdictions, however, the gender of the individuals is no longer relevant for the conclusion of the marriage and hence intersexuals should be able to marry (same-sex relationships; marriage).

3. Transsexuality and change of legal gender

According to the World Health Organization (WHO), transsexuality is a form of gender dysphoria or gender identity disorder (GID). Unlike intersexuals, the persons concerned physically clearly belong to one gender but psychologically belong to the other gender and would like to live, and be legally classified, accordingly. Whether (and under what conditions) a change of legal gender is permissible was (and to a certain extent still is) quite controversial and has been the subject of numerous proceedings before both national and international courts.

a) European Court of Human Rights

Whether a change of legal gender must be permitted was finally determined for the contracting states of the ECHR by the European Court of Human Rights (ECtHR) in the decision ECtHR No 28957/95 – Christine Goodwin. In numerous previous decisions the ECtHR had been hesitant and had deferred to the margin of appreciation of the contracting states. However, in the Goodwin decision the Grand Chamber unanimously decided that a contacting state (in this case the United Kingdom) is in breach of its obligations under Arts 8 and 12 ECHR if the law does not provide for the possibility of a change of legal gender. The court expressly referred to the legal and social developments in the contracting states and internationally (see below) in reaching its decision. Interestingly, only two days before, in Foy v An t-Ard Chlaraitheoir, Ireland and the Attorney General [2002] IEHC 116, the Irish High Court had decided to the contrary.

Following Goodwin, all contracting states are obliged to allow for the possibility of a change of legal gender, but the exact conditions are to be determined by the contracting states. After the House of Lords in Bellinger v Bellinger [2003] UKHL 21 had declared certain provisions of English law to be incompatible with the ECtHR in light of the Goodwin decision, the United Kingdom enacted the Gender Recognition Act 2004, which in many ways is the most liberal statute in Europe on the matter.

b) Developments in Europe

The Court’s reasoning in the Goodwin decision relies, inter alia, on developments in European jurisdictions. More than 30 years ago, in 1972, Sweden was the first country in Europe to allow a change of legal gender under certain circumstances through the Lag (1972:119) om fastställande av könstillhörighet i vissa fall (Act on determination of gender in certain cases). The requirements and conditions of the Act, which is still in force, for a change of legal gender seem somewhat outdated today. A commission in Sweden has therefore suggested the enactment of a new Act to bring Swedish law in line with modern medical and psychological findings, as well as changes of social attitudes, since the inception of the original Act in the 1970s (see Justitiedepartementet, Statens offentliga utredningar (SOU) 2007:16 – Ändrad könstillhörighet – förslag till ny lag, 2007).

It took several years for the next European jurisdiction to legislate on the change of legal gender issue, with Germany enacting the Gesetz über die Änderung der Vornamen und die Feststellung der Geschlechtszugehörigkeit in besonderen Fällen (Transsexuellengesetz) (Act on the change of given names and determination of gender in specific cases), which came into force in 1981. The preceding parliamentary debates show very clearly the lack of understanding and knowledge of the medical-psychological issue by many people at the time, sexual identity and sexual orientation often being confused. For example, one criticism in the Bundesrat was that ‘so far it has not been possible to distinguish transsexualism from other phenomena (such as homosexuality and transvestitism)’ (BT-Drucks. 8/2947, 18 ff). The requirements for a change of legal gender in the German Act were quite restrictive at first, but several decisions by the German Federal Constitutional Court (Bundesverfassungsgericht) and subsequent amendments have relaxed these conditions significantly.

In the following years, several European jurisdictions enacted statutes allowing for a change of legal gender, eg Italy in 1982 (Norme in materia di rettificazione di attribuzione di sesso), the Netherlands in 1985 (originally Arts 1:29a–d NBW, now Arts 1:28–28c NBW), Turkey in 1988 (originally Art 19, now Art 40 Turkish Civil Code), Finland in 2002 (Finnish: Laki transseksuaalin sukupuolen vahvistamiseta; Swedish: Lag om fastställande av transsexuella personers könstillhörighet), the United Kingdom in 2004 (Gender Recognition Act 2004), and Belgium (now Arts 57, 62bis, 62ter, 99, 100 Burgerlijk Wetboek) and Spain in 2007 (Ley 3/2007, de 15 de marzo, reguladora de la rectificación registral de la mención al sexo de las personas).

In many other European jurisdictions (including Spain and Belgium before the enactments just mentioned) there are no express legal rules concerning the change of legal gender, but such a change can be effected by a change/re-issuance of the birth certificate. This can, depending on the jurisdiction, be achieved either by an administrative procedure or an application to the courts (for Austria see Erlaß Zahl 36.250/ 66-IV/4/596 and Verwaltungsgerichtshof 30 September 1997, ZfRV 1999, 185), for France see Cour de Cassation, Assemblée plénière 11 December 1992, Bull. civ. no 13; Gazette du Palais 1993, 180 concl.).

c) European Union and the ECJ

In its ‘Resolution of 12 September 1989 on discrimination against transsexuals’ ([1989] OJ C256/33) the European Parliament declared ‘that human dignity and personal rights must include the right to live according to one’s sexual identity’. While no binding enactments have followed from this resolution, the European Court of Justice (ECJ) nevertheless has had to decide on issues connected with a change of (legal) gender. The ECJ Case C-13/94 P v S and Cornwall County Council [1996] ECR I-2143 concerned the prohibition of discrimination on the grounds of gender in the workplace in Art 5(1) of Dir 76/207 (discrimination (employment law)). The claimant, who had been born as a man but had undergone gender reassignment surgery and now lived as a woman, had been laid off because of her physical change of gender. She claimed that this amounted to discrimination because of her gender which was prohibited under the directive. The ECJ held that, since the right ‘not to be discriminated against on grounds of sex constituted a fundamental human right’, the scope of the directive could not ‘be confined simply to discrimination based on the fact that a person is of one or other sex. It must extend to discrimination arising from gender reassignment, which is based, essentially if not exclusively, on the sex of the person concerned’. To dismiss a person on the ground that ‘he or she intends to undergo, or has undergone, gender reassignment’ was found to be treating ‘him or her unfavourably by comparison with persons of the sex to which he or she was deemed to belong to before that operation’. While the ECJ in the case only had to decide on the legality of a dismissal because of gender reassignment surgery, the reasoning makes clear that the Court deemed any discrimination against a transsexual person in the workplace because of his or her transsexuality impermissible.

In the ECJ Case C-117/01 KB v National Health Service Pensions Agency [2004] ECR I-541 the Court followed this progressive course. In this case the female claimant lived together with a female-to-male transsexual who had undergone gender reassignment surgery and lived as a man. However, English law (the Gender Recognition Act 2004 was not in force at the time) did not allow for a change of legal gender, and therefore the claimant could not marry her partner. This meant that if her partner predeceased her, she would not be entitled to a widow’s pension because they were not married. The Court decided that Art 141 EC Treaty (equal pay for male and female workers, now Art 157 TFEU) in principle precludes legislation which, in breach of the ECHR, prevents a couple such as the one in question from fulfilling the marriage requirement which must be met for one of them to be able to benefit from part of the pay of the other. The ECJ here expressly referred to the Goodwin decision by the ECtHR (see above).

d) Convention no 29 of the Commission Internationale de l’État Civil

The Commission Internationale de l’État Civil (CIEC; engl.: International Commission on Civil Status (ICCS)) has also dealt with matters arising from transsexuality and the change of legal gender in its Convention no 29 relative à la reconnaissance des décisions constatant un changement de sexe (Convention no 29 on the recognition of decisions recording a gender reassignment).

At the heart of the Convention is the duty of all contracting states, contained in Art 1, to recognize administrative or court decisions made by competent authorities in a contracting state ‘regarding a person’s gender reassignment’, provided that the person concerned was a national or habitually resident in that contracting state. However, so far only Austria, Greece, the Netherlands, Spain and Germany have signed the Convention. Only Spain and the Netherlands have ratified it, meaning that it came into force for those two jurisdictions on 1 March 2011.

4. Future development

The gender of a person has become less legally relevant in the past decades, and discrimination based on gender is prohibited by European norms, yet some areas, such as family law, remain where gender may be a decisive factor.

Concerning intersexuality, a paradigm shift would appear to have begun so that in several European jurisdictions it is no longer mandatory to record the gender of a child as either male or female. This in effect means that the legal gender can remain undetermined. However, in no European jurisdiction has a ‘third’ gender (such as ‘intersexual’) been legally recognized as of yet. There is no discernible development on how norms requiring a specific gender are to be applied to intersexuals of undetermined legal gender, and this remains an issue for future debate.

Still, there has been a remarkable development in Europe concerning the (re-) assignment of a person’s gender. The Goodwin decision ensures that all contracting states to the ECHR have to provide the opportunity to change one’s legal gender. Therefore, it is to be expected that all jurisdictions which so far have not allowed a change of legal gender will soon have statutory provisions or administrative regulations to that effect. However, the Goodwin decision does not stipulate the requirements and conditions for a change of legal gender which might be the subject of future disputes.

Literature

Salvatore Patti and Michael R Will (eds), Mutamento di sesso e tutela della persona—Saggi di diritto civile e comparato (1986); Pak-Lee Chau and Jonathan Herring, ‘Defining, Assigning and Designing Sex’ (2002) 16 IJLPF 327; Commission Internationale de l’État Civil, Le transsexualisme en Europe (2002); Jürgen Basedow and Jens M Scherpe (eds), Transsexualität, Staatsangehörigkeit und internationales Privatrecht (2004); Jens M Scherpe, ‘The Nordic Countries in the Vanguard of European Family Law’ (2007) 50 Scandinavian Studies in Law 274; Justitiedepartementet, Statens offentliga utredningar (SOU) 2007:16—Ändrad könstillhörighet—förslag till ny lag (2007); Patrick Senaeve and Kristof Uytterhoeven (eds), De rechtspositie van de transseksueel (2008).

Retrieved from Gender – Max-EuP 2012 on 06 December 2022.

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