Four years ago, nearly to the day, IJFAB Blog contributor Alison Reiheld wrote on the repeal of Swedish laws that had required transgender person to be sterile (or become sterile) AND to have surgical sex reassignment in order to change their gender on legal documents (“Transitions In Law: What Struggles Over Policy Changes Affecting Transgender Persons Reveal“). This is important because discordance between legal documents and gender presentation is one way that trans persons are “outed.” It thus increases discrimination, harassment, and violence in every arena of life from commerce to housing to healthcare to marriage. In addition, requiring these expensive, invasive, and life-altering procedures for persons who might not otherwise choose them treads dangerously into coercive practice. It is thus a bioethics issue. In the case of Sweden, these laws were overturned in 2013.
Well, in case you missed it, in April of 2017, the European Court of Human Rights (ECHR) struck down mandatory sterilization for transgender people based on Article Eight of the European Convention of Human Rights: “everyone has the right to respect for his private and family life, his home and his correspondence.” The ruling was in favor of three French transgender citizens who were not allowed to change their names and genders on birth certificates without the required sterilization. This ruling only directly affects France, where the requirement had already been removed from statutory law. The ECHR has no authority to enforce the ruling in every European Union (EU) country, nor can it do so for the 47 countries which are signatories to the European Convention of Human Rights. These are non-identical sets: Turkey and Armenia have signed the European Convention but do not belong to the EU, which imposes additional human rights standards on nations. This ruling could, however, serve as a legal model for cases in other nations even though it is not binding on other nations. 20 Countries in Europe still require sterilisation for legal gender recognition, according to Transgender Europe’s (TGEU) Trans Rights Europe Map of 2017.
The ruling does permit nations to require mental health diagnoses or medical examinations before legally changing gender. Thus, it allows France to retain “gatekeeping” functions for medical and mental health providers; in Sweden, such gatekeeping has in the past meant that it can take as long as a decade to transition to the state’s satisfaction. Such gatekeeping has itself been argued to be an undue barrier, and thus presents ethical concerns, especially as implemented in the past but still today.
We will see what changes in law, and in the lives of transgender persons, follow from the April 2017 decision by the ECHR.