Gender recognition and the rights to health and health care: Applying the principle of self-determination to transgender people

ABSTRACT

Transgender people worldwide are subject to discrimination and violence. They are either being denied legal rights and thus face marginalization and increased vulnerability or their recognition is subject to cumbersome legal and medical preconditions that often infringe on the rights to self-determination, privacy, family life, and physical integrity. This article will situate legal gender recognition in the human rights domain as key to the enjoyment of the right to self-determination and explore its role in fulfilling the rights to health and health care. Using examples from European Union members' legal frameworks, the author will argue that any mechanism for legal recognition of transgender identities should not draw on a pathological view of gender variance. Instead, lawmakers should acknowledge the existence of gender diversity within societies and respect the right to self-determination of transgender people, as enshrined in the Yogyakarta Principles (2007), by way of allowing them to self-declare their gender identity without the imposition of any discriminatory preconditions. Free of these requirements, gender recognition will not only assert the right to self-determination but also help transgender people achieve that state of physical, mental, and social well-being necessary for their enjoyment of the highest attainable standard of health.

KEYWORDS:

• Gender recognition
• right to health
• self-determination
• transgender

Notes

1. Transgender or trans is an umbrella term for individuals whose gender identity, gender expression, or behavior does not conform to that typically associated with the sex to which they were assigned at birth (Drescher, Cohen-Kettenis, & Winter, 2012; Supplementary material).

2. In the Yogyakarta Principles (2007) gender identity has been defined as “each person's deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth.”

3. The right to physical integrity, although not explicit in the European Convention of Human Rights, has been cited in the judgments of the European Court of Human Rights under Article 8 (right to private and family life). For example, in Y. F. v. Turkey (2003), the court confirmed that a person's body is an intimate aspect of his or her private life, and in Storck v. Germany (2005), the court has held that even minor interferences with a person's physical integrity may fall within the scope of Article 8 if they are against the person's will.

4. The General Comment No. 14 of the UN Committee on Economic, Social and Cultural Rights (2000) states that “the right to health is closely related to and dependent upon the realization of other human rights, as contained in the International Bill of Rights, including the rights to food, housing, work, education, human dignity, life, non-discrimination, equality, the prohibition against torture, privacy, access to information, and the freedoms of association, assembly and movement. These and other rights and freedoms address integral components of the right to health.”

5. Article 1 of the UN International Covenant on Civil and Political Rights (ICCPR, 1966) and of the UN International Covenant on Civil and Political Rights (ICCPR, 1966) states, “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”

6. Gender variance or gender variant is a nonpathologizing way to describe individuals with gender atypical behavior or self-presentations (Drescher, Cohen-Kettenis, & Winter, 2012; Supplementary material).

7. “The International Bill of Human Rights consists of the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and its two Optional Protocols” (UN Commissioner for Human Rights, 1996).

8. Beauchamp and Childress (2013) defined the respect for autonomy as an acknowledgment of “people's right to hold views, to make choices, and to take actions based on their personal values and beliefs” (p. 106). In account of health care such a respect “involves acknowledging the value and decision-making rights of persons and enabling them to act autonomously” (p. 107). Therefore, the principle of respect for autonomy is correlative to the patient's “right to choose” (p. 108) and, consequently, its observance is a “professional obligation” of health care providers (p. 110).

9. WHO (2015b) defines social determinants of health (SDH) as “the conditions in which people are born, grow, live, work and age. These circumstances are shaped by the distribution of money, power and resources at global, national and local levels. The social determinants of health are mostly responsible for health inequities—the unfair and avoidable differences in health status seen within and between countries.” SDH that may adversely impact human health are, for example, poverty, social isolation, and various forms of discrimination, such as racism, sexism, classism, ageism, ableism, homophobia, and transphobia.

10. Transsexual is a term used to describe an individual who has undergone or intends to undergo sex reassignment surgery (SRS), either male to female (MtF) or female to male (FtM) (Drescher, Cohen-Kettenis, & Winter, 2012; Supplementary material).

11. Intersex Society of North America (ISNA, 2008) defines intersex as a general term used for a variety of conditions in which a person is born with a reproductive or sexual anatomy that doesn't seem to fit the typical definitions of female or male.

12. Cisgender is “a term used in the transgender community to describe individuals whose gender identities align with their assigned sex at birth (non-transgender)” (Drescher, Cohen-Kettenis, & Winter, 2012; Supplementary material).

13. The FRA (2010) report does not specify what is meant by “physical adaptation” other than surgery and hormonal treatments; however, it may be assumed that these are nonhormonal treatments aiming at either masculinizing or feminizing the person concerned—for example, genital and chest surgeries and voice and communication therapy (Coleman et al., 2012).

14. In this case, as in the Goodwin v. UK (2002) case, the court referred to transsexual individuals only.

15. Genderqueer is defined by Drescher, Cohen-Kettenis, & Winter (2012; Supplementary material) as “a colloquial term to describe the gender identity of a person whose internal sense is of being between two genders, neither purely masculine nor feminine.”

16. Article 1 asserts everyone's right to his or her own gender identity (Köhler, Recher, & Ehrt, 2013; Annex 1).

17. Article 3 defines who is permitted to change legal gender, stating that every person can request to have the recorded sex amended and the first name changed “whenever they do not agree with the self-perceived gender identity.” The only restriction is age, as applicants must be 18 years old or over; however, provision is made for persons who are under 18 years of age (Köhler, Recher, & Ehrt, 2013; Annex 1).

18. At the time of the GRAG report's publication in 2010, GID was the official diagnosis in both the Diagnostic and Statistical Manual of Mental Disorders, 4th Text Revision (DSM-IV-TR), published by the American Psychological Association (APA), and the International Classification of Diseases, 10th Revision (ICD-10), published by the World Health Organization (WHO). ICD is currently undergoing review and the anticipated publication date of ICD, 11th Revision, has been set by the WHO for 2017. The current WHO (2015a) proposal is to include the diagnosis of “Gender Incongruence” in ICD-11, although the World Professional Association for Transgender Health (WPATH) recommended the use of the term “Gender/Body Divergence,” arguing that divergence is one of the synonyms of variance and more neutral (De Cuypere & Knudson, 2013).

19. It should be noted that at the time of writing the official text of the Gender Recognition Act (2015) still included the “unmarried status” requirement due to legal challenges made against the results of the Marriage Equality Referendum. The Irish government, however, did not commence this part of the legislation, and therefore, this requirement is not applicable (Ireland, Department of Social Protection, 2015).

20. Gender non-binary is an umbrella term for gender identities that fall outside the gender binary of male or female. This includes individuals whose gender identity is neither exclusively male nor female, a combination of male and female or between or beyond genders (TENI, 2015b).